Business Conflict Blog

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.

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Tags: Arbitration, Employment

Some time ago I brought to readers’ attention a case holding that an attorney who was alleged to have committed malpractice during a mediation could not be sued because confidentiality barred the introduction of evidence of the attorney’s behavior during the mediation. 

Now we have the arbitration side of the coin:  A party that engaged an arbitrator to render a final and binding award, and that participated in a series of evidentiary hearings, has no recourse when, at the end of the last hearing, the arbitrator declines to issue an award on the ground that he has become “too compassionate towards both sides.”  The full text of the January, 2010 decision of the California Court of Appeals may be found here. Read more »

Tags: ADR Institutions, Arbitration

The ABA Section of Business Law meets in Denver, Colorado, April 22-24, 2010.  Among many great topics to be addressed this year, the Section’s Dispute Resolution Committee is offering a power-packed panel titled “Is Arbitration Broken?  And Can It Be Fixed?”

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Tags: Arbitration

I had written here in anticipation of the March 29, 2010, Joint Symposium on International Investment Law and ADR, held by UNCTAD and the Washington and Lee School of Law.  It was a smashing and impressive success, due to the remarkable convening powers of hosts Susan D. Franck of Washington and Lee and Anna Joubin-Bret of UNCTAD.  My expectations were very high, and predictably they were variously exceeded and frustrated.  Even among the Great and the Good, and despite a truly inspirational White Paper that preceded the Symposium, we are still a long way from dealing with international investor conflicts as if they were a “problem” and not a “case.” Read more »

Tags: Add new tag, ADR Institutions, Arbitration, conflict management, systems design