Business Conflict Blog

Prof. Thomas J. Stipanowich  of Pepperdine University School of Law has come out with a smashingly responsible analysis of the most recent Supreme Court arbitration cases.  In his article, forthcoming in the American Review of International Arbitration, Stipanowich suggests that the three recent cases — Stolt-Nielsen, Rent-A-Center and AT&T Mobility – constitute a new “trilogy” of the stature of the historic Steelworkers cases in 1960.  But he urges that the recent trilogy of cases are flawed in reason, devoid of emprical grounding, and potentially harmful to the development of reasoned and just public arbitration policy.

Stipanowich is critical of the Court’s analysis, asserting rather than deducing “federal substantive law” under the Federal Arbitration Act as the basis for its outcomes.  He suggests that these references to such “substantive law” are “divined” or “discerned” rather than being the product of clear legal analysis, and that the Court’s avowed strong public policy concern to enforce arbitration agreements at times leads to outcomes clearly at variance with the Act. Read more »

Tags: Arbitration, Public Policy

Here’s a great title for a panel at the ABA Annual Meeting in Toronto: “How Arbitrators Think and What You and They Can Do About It: A Journey Into the Minds of Arbitrators.”

Hey, I’m an arbitrator. And like Derek Jeter I always want to improve my game every time I go on the field. This is for me, right? Read more »

Tags: Arbitration

Thanks to the indefatigable Paul Lurie for posting, on his arbitration/mediation Listserve, the news of the recent release of the Annotated Code of Arbitrator Ethics.

The Revised Code of Ethics for Arbitrators in Commercial Disputes was released in 2004 by the American Bar Association and the American Arbitration Association.  This newly released version of the Code provides citations to judicial decisions and other writings that cite the 2004 Code (or its 1977 predecessor) from 1981 through July 2010.  Read more »

Tags: ADR Institutions, Arbitration

The Supreme Court has ruled (again) that state laws purporting to condition the enforceability of arbitration agreements on grounds not ennumerated in Section 2 of the Federal Arbitration Act are themselves unenforceable on Supremacy grounds.  I teach that principle in my class using Southland v. Keating, and now I can use this more recent case.

Many smarter and more sophisticated students of arbitration law will provide commentary on the AT&T Mobility decision, but I was struck by an article in the same day’s New York Times noting that, after waiting nine years, the family of Mark Bavis, a passenger on one of the planes that rammed into the World Trade Center, is about to go to trial in its wrongful death suit against United Airlines and other defendants.

What’s the link?  Both claimants were offered full reimbursement for their loss.  Both rejected the offer — not because they thought it inadequate, but because they wanted to prove something other than damages. 

What is it that Americans seek, in the expensive, protracted and uncertain world of the courts, when they don’t seek damages for their injuries, but proceed with the horrors of litigation litigation anyway?

Read more »

Tags: Arbitration, Courts, Public Policy