Under a Contract Containing a Broad Arbitration Clause and a Provision Specifically Authorizing Either Party to Seek Injunctive Relief Without Waiving Other Remedies, the Procurement of a Court Ordered Preliminary Injunction Does Not Waive the Right to Arbitrate Issues on Which the Injunctive Rel... (original) (raw)
Related papers
Pre-dispute Arbitration Agreements: A Bar to Access to Court?
SSRN, 2023
Over the years, arbitration agreements have become very popular especially in employment relations and consumer contracts. The agreements may be pre-dispute or post-dispute. Pre-dispute arbitration agreements as the name connotes refers to those arbitration agreements entered into before they even arise while post-dispute arbitration agreements are entered into by parties after the dispute has arisen. The voluntariness or otherwise of such contracts is usually in doubt because they are mostly mandatory by nature. This paper addresses the issue of unconscionability, involuntariness of such agreements. Some Supreme Court of the United States cases will be examined and particular mention will be made of the recent Bill that was passed into law in respect of arbitration of sexual harassment and sexual assault cases in employment relations. The paper will conclude by addressing the key question whether these pre-dispute arbitration agreements are a bar to access to court or whether there is any option available for an intending litigant. Keywords: (pre-dispute arbitration agreements; arbitration; access to court)
US: Four significant developments in arbitration case law
In this article, we discuss four significant arbitration-related case law developments in the US in the last year, which concern (1) the increased availability of US-style discovery in international arbitration under 28 U.S.C. § 1782; (2) whether non-signatories to an arbitration agreement can compel arbitration on the basis of equitable estoppel; (3) the availability of class-wide arbitration when the arbitration agreement is ambiguous; and (4) the ongoing use of the US District Court for the District of Columbia as a default venue for enforcement of ICSID awards.
The Federal Arbitration Act as Procedural Reform
SSRN Electronic Journal, 2014
represent dramatic developments with implications that extend far beyond the arbitration context. These decisions are a product of what the author refers to as the "contract model" of the Federal Arbitration Act (FAA). Heretofore largely unquestioned, the contract model posits the FAA's original and dominant purpose as the promotion of private ordering in dispute resolution, as free as possible from state regulation. The model has, in turn, helped courts and commentators claim that the FAA requires arbitration agreements to be enforced strictly "according to their terms"-without regard to the way those agreements might compromise procedural values, such as when they preclude classwide relief. This Article questions both the descriptive accuracy and normative persuasiveness of the contract model. It argues that when placed in their proper historical context, the FAA's text and legislative history appear equally consistent (if not more so) with a purpose to improve upon the widely discussed procedural failings of the
Issue Preclusion in Employment Arbitration after Epic Systems v. Lewis
NYU Law & Economics Research Paper Series, 2018
The Supreme Court’s 5-4 ruling in Epic Systems v. Lewis (2018) that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act’s protection of “concerted activity” by employees may prompt further adoption of class action waivers in arbitration agreements. We consider in this article the prospect of greater use of offensive non-mutual issue preclusion (sometimes termed collateral estoppel) in employment arbitration as an alternative means of minimizing duplicative or inconsistent treatment of employment claims in arbitration. Focusing on confidentiality provisions and preclusion waivers as two obstacles to greater use of estoppel principles in arbitration, we propose several modifications to the rules of the American Arbitration Association (“AAA”) that, if adopted, would promote a fairer process for both employers and their employees.<br><br>The doctrine of offensive non-mutual issue preclusion permits plaintiffs in appropri...
Impact Preemption: A New Theory of Federal Arbitration Act Preemption
Florida Law Review, 2015
The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader even than field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal-state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability of the national arbitration system for consumers and contracting parties who utilize arbitration agreements in commerce. This Article traces the history of three fundamental flaws in prior Supreme Court rulings that ultimately resulted in the creation of impact preemption. First, the Court...
2011
This Article analyzes the United States Federal Arbitration Act, as a statutory framework for effective arbitration of contract disputes. While arbitration under this Act has been subject to ever increasing criticism and calls for reform on a variety of fronts—most often from the perspective of consumer or employment arbitration—this Article focuses specifically on commercial, business-to-business arbitration and critically evaluates the