At the IBA in Dubai last week, a three-hour session was held on “The Rise of Multiculturalism and Resulting Challenges of Managing Diversity in the Workplace.” While the subjects discussed were fascinating, the subjects not discussed might have been even more so. Read more »
Hans Peter Frick, General Counsel of Nestlé, once offered this guidance for business mediators: You can either make what you think is a good candy bar and convince people that they “ought to” buy it, or you could go out and ask people what kind of candy bar they want, and go back and make it.
At the IBA in Vancouver, Jane Player of Bird & Bird gave attendees a chance to learn from global companies what kind of candy bar they like: How they consider ADR to add value (or not) in their businesses. Representatives of General Electric, Swiss Re, Coca-Cola and E.I. duPont spent three hours in conversation among themselves and a the audience of a packed hall discussing relationship management, conflict avoidance, mediation, risk assessment, early case assessment and litigation management as ways to add value to their shareholders.
Candy, anyone? Read more »
Prima Paint teaches that the arbitration agreement nestled in a commercial contract has a legal validity of its own, and that once a court determines that the “nestled” agreement to arbitrate is enforceable, then the arbitrator and not the court shall determine the enforceability of the rest of the contract.
The interesting thing about the arbitration agreement in Rent-a-Car, West v. Jackson is that there wasn’t anything for the arbitration agreement to nestle into. The document evidenced only an agreement to arbitrate. Other terms of any commercial agreement between Jackson and his employer were set forth elsewhere. This was just a “Mutual Agreement to Arbitrate Claims.”
So when Jackson was prompted to sue his employer for racial discrimination, the federal district court didn’t have an arbitration agreement to sever from the rest of the contract. It had only the agreement to arbitrate itself, in all its lonely glory.
Which Jackson said was unconscionable because it was thrust upon him and unfairly limited his ability to vindicate his statutory rights.
And which provided that questions of unconscionability were to be decided by (guess who?) the arbitrator, not the court. Take that, Prima Paint.
The Supreme Court granted cert Friday in an employment arbitration case addressing whether the arbitrator or the court should determine the enforceability of an arbitration clause. The outcome could do mischief to the FAA and to Supreme Court precedent. Once again there is reason to lament the harm that the practice of employment arbitration is wreaking upon commercial arbitration principles. Read more »
