Arbitration clauses in contractual arrangements are fairly standard today. By agreeing to arbitrate, the parties to an arbitration agreement waive their rights to seek redress of their claims in a court in favor of an arbitration tribunal. While litigation is criticized as being expensive and time-consuming, costs associated with arbitration are far from inconsequential. If the parties have waived their right to go to court, even in situations in which fees and costs may be awarded to the prevailing party, and if arbitration costs are cost-prohibitive, could there be a defense to the arbitration contract on grounds of unconcionability? This paper explores situations in which such an argument could be successful, and suggests ways to apportion costs that would make arbitration clauses le...
Lately, state and federal arbitration law has been more like a bouncy house than a steady platform. Late last month, the U.S. Supreme Court issued AT&T Mobility v. Concepcion, a hotly anticipated case on class action arbitrations. In a 5-4 decision, the high court said the state of California could not invalidate an arbitration clause because it barred class actions.
In the last twenty years, mandatory binding arbitration has become ubiquitous in consumer contracts. The rise of mandatory binding arbitration represents a deliberate strategy on the part of businesses. The widespread adoption of mandatory binding arbitration in the consumer context has significant negative consequences for consumers and society. However, the Supreme Court's interpretation of the Federal Arbitration Act has, in essence, limited effective policy options for addressing mandatory binding arbitration to federal legislative action. Many consumer advocates have coalesced around the Arbitration Fairness Act, a bill requiring that arbitration in multiple contexts be voluntary, as the best means for addressing mandatory binding arbitration. However, the Arbitration Fairness Act ...
The Kingdom of Bahrain's new arbitration legislation, Legislative Decree No. 30, gives parties to an agreement calling for international arbitration the option of holding the arbitration in Bahrain without concern that the courts of Bahrain might interfere with, or set aside, the resulting award, as long as the parties seek to enforce the award only in another country. The result is the creation of what this article will call the Bahrain "Free Arbitration Zone." In spite of the convenience of having regional arbitration centers in the Middle East, many corporations have remained cautious about siting arbitrations there out of concerns that local courts are inexperienced in dealing with arbitration and that awards against influential local parties might simply be set aside. For its new i...
This Article is part of a broader research agenda that studies the relationship between arbitration and constitutional law. Taking its cue from the recent Canadian Softwood Lumber dispute over the constitutionality of NAFTA's dispute resolution boards, this Article asks a broader question: Why is arbitration compatible with Article III? Under the traditional account, when parties chose to arbitrate, they waive their right to an Article III forum, thereby eliminating any Article III issue. Accounts grounded in waiver, however, fail to grapple adequately with the significant structural concerns presented by arbitration. This Article defends the need for a more robust theory, one that accounts for these structural concerns and can address the novel constitutional challenges presented by a ...
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