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Arbitration is a form of dispute resolution based on the free will of the parties. This figure has experienced significant growth in recent years and its popularity continues to grow, as it allows the parties to resolve disputes that may arise from their contractual relationship in an agile and rapid manner. This paper will analyse what arbitration is, the types of arbitration that can be found, what the arbitration procedure in Spain is based on, its advantages, tips on how to draft an arbitration clause, the use of arbitration in Mexico will be explained and compared with that in our country and, finally, a brief reflection on why arbitration in Spain is not so successful. [ABSTRACT FROM AUTHOR]

Sunset clauses in International Investment Agreements (IIAs) have recently become the subject of renewed attention after the European Commission and European Union (EU) Member States announced their intention to abrogate sunset clauses found in intra-EU IIAs as part of their plan to end existing intra-EU IIAs. Sunset clauses (or survival clauses) are provisions commonly found in IIAs that extend their application for a given period of time after their termination. This article reflects on the consequences of terminating IIAs and simultaneously depriving sunset clauses of their legal effects, and explores how investors could nonetheless attempt to bring disputes arising out of their investments before arbitral tribunals. [ABSTRACT FROM AUTHOR]

The courts of Hong Kong have determined the governing law of the underlying contract to indicate an express, implied and no choice of the law applicable to the arbitration agreement. In determining the applicable law, the courts made no references to the New York Convention despite the fact that the provisions under Hong Kong arbitration law pursuant to which the foregoing determinations were made are based on provisions in the New York Convention and ought to be applied in conformity with the same. This article argues that the courts of Hong Kong ought to adopt the New York Convention's conflict of laws rules in Article V(1)(a) to determine the governing law of arbitration agreements in pre- and post-award proceedings in order to enhance the alignment of Hong Kong law with the international body of arbitration law. [ABSTRACT FROM AUTHOR]

Arbitration, mediation/arbitration and arbitration/mediation allow parties to resolve their disputes usually more expeditiously, privately and with less cost than going to court. While confidentiality is seen as essential to the mediation process and often included in statutes, confidentiality seems less essential to a more adversarial process. Confidentiality provisions rest at the intersection between privacy and self‐determination and the protection of vulnerable parties in family law disputes. This article explores the importance of confidentiality clauses in drafting arbitration and med/arb or arb/med agreements. Key Points for the Family Court Community: Lawyers need to anticipate the need for certain information to remain private.Most legislation does not include confidentiality protections for arbitration, med/arb or arb/medConfidentiality clauses should be carefully drafted to meet the privacy needs of the parties.If confidentiality clauses have not been drafted carefully, it may be possible to get an order of protection for material the parties wish to keep confidential. [ABSTRACT FROM AUTHOR]

The article presents a court case in which the U.S. Supreme Court ruled that courts should respect arbitration agreements, including the jurisdictional delegation clause. In the case Henry Schein v. Archer & White Sales, Inc. (A&W), A&W sued Henry Schein, Inc. for alleged antitrust breaches and sought injunctive relief and money damages.

The article discusses the use of arbitration to resolve insurance disputes in the construction industry. Other topics include the introduction of arbitration clauses in commercial liability, professional liability and other insurance policies like the contractor controlled insurance programs (CCIP) and owner controlled insurance programs (OCIP), the U.S. Federal Arbitration Act (FAA), and the state laws precluding the enforcement of arbitration clauses.

The article discusses the determination of the law for New York arbitrations as of April 2019. Topics covered include arbitration under the Federal Arbitration Act (FAA) based on the clause, the similarities and differences between the FAA and Civil Practice Law and Rules (CPLR) Article 75, and the two methods by which courts find the standards to be used based on parties' manifestations and their effects. Also noted is the suggestion for a choice-of-law clause to clarify arbitration.

The purpose of this article is to analyze the basis, value and scope of the unilateral termination clause of the contract in Colombian private law, according to which it is agreed between the contracting parties that any of them may terminate the contract without having to plead a just cause. After investigating the basis and legal viability of said clause, its limits, as well as its possible configuration as an abusive clause and contrary to good faith, it is concluded that although it is possible to admit its legal viability, this clause finds limits and may eventually be declared void. For the elaboration the dogmatic method of legal investigation has been used, taking into account the legal dispositions, the doctrine and jurisprudence, both judgments of the Supreme Court of Justice, as of the Council of State and arbitration awards. [ABSTRACT FROM AUTHOR]

El artículo ofrece información sobre las leyes y los casos judiciales relacionados con el arbitraje y la mediación en España. Los temas discutidos incluyen la sentencia de España con el Superior Tribunal de Justicia sobre el despido de un laudo, el procedimiento de arbitraje seguido por las sociedades de inversión, los servicios profesionales de los accionistas y la cláusula punitiva.

The article focuses on the effects that an arbitration clause can still produce when it is contained in a simulated operation, whether it is in the apparent act or in the secret one, depending on the forms of simulation. [ABSTRACT FROM AUTHOR]

The article examines the issues related to arbitration clauses in corporate charters and bylaws in the U.S. Topics discussed include enactment of the Federal Arbitration Act (FAA); formalities of contract law; and corporate governance arrangements related to arbitration that causing doctrinal confusion.

The article discusses the concerns regarding unilateral jurisdiction clauses (UJCs) under Chinese law as of 2015, and it mentions how several courts across China have invalidated UJCs. The allocation of jurisdiction in China is mentioned, along with arbitration agreements and Chinese rules on choice of court agreements. Issues such as fraud, coercion, and a lack of capacity under China's Contract Act or General Principles of Civil Law are examined.

The article reports the decision of the New Zealand Supreme Court in the case "Zurich Australian Insurance Ltd v Cognition Education Ltd." in which the court limits scope of judicial interference in arbitration and solidifying New Zealand as a pro-arbitration jurisdiction. Topics discussed include enactment of the Arbitration Act 1996; laws related to domestic arbitrations; and domestic and international arbitrations laws of the country.

Following the 2008 financial market collapse, Congress passed the Dodd- Frank Wall Street Reform and Consumer Protection Act, splitting jurisdiction over OTC swaps between the SEC and the CFTC. Each agency takes a different approach to regulating the use of pre-dispute arbitration clauses in OTC swap agreements. Although both approaches designedly protect investors who mistakenly waive their right to litigation when buying OTC swaps, neither addresses the economic realities inherent in these transactions. Consequently, the current scheme overregulates investors, impinges on the competitiveness of the OTC swap market, and contradicts the policies underlying Dodd-Frank. This note contends that a limited, prescriptivebased approach should be taken to adequately respond to these concerns. Moreover, the agencies should look to the ISDA for assistance in facilitating compliance with these newly enacted rules. [ABSTRACT FROM AUTHOR]

Five forms of protection are examined here. Besides (1) stays of judicial proceedings, the English courts can issue (2) an injunction to stop a party acting inconsistently with an arbitration agreement (English anti-suit relief remains available where the court proceedings occur outside the European Union. (3) The decision to grant the injunction also creates an issue estoppel on the effects of the arbitration agreement. That estoppel binds an arbitral tribunal with a seat in England. (4) Declarations and (5) damages are further forms of relief. [ABSTRACT FROM AUTHOR]

The article reports on the associated risks while serving a response to a complaint 20.1 notice of claim under the International Federation of Consulting Engineers (FIDIC) 1999 Yellow Book. Topics discussed include engineers' approval or disapproval to the claim within 42-day period as required by clause 20.1, provision of interim award if the claim is approved by the engineer and how to avoid risk in the response of the claims proceeding to arbitration.

A factual pattern forming the basis for a referral to arbitration arising from an appropriately worded arbitration clause may also give rise to tortious claim(s) brought jointly against parties and non-parties to the relevant agreement. In such cases, a recent judgment of the People's Republic of China's Supreme Court, known as the Retrial Decision, suggests that it is possible to circumvent referring the dispute to arbitration by showing prima facie evidence of the existence of the joint tort claim against signatories and non-signatories. The stark implication of the decision is that it raises the risk of disputes being referred to the courts, irrespective of an arbitration clause existing between certain parties to the proceedings. This article considers the background to the decision and its implications, and then undertakes a comparative analysis of the materially different approach to such cases adopted in other jurisdictions; namely, England, Hong Kong, Singapore and Canada. The article concludes by considering the implications of the Retrial Decision, the concerns which it raises, and sets out the authors' thoughts on how parties can address the risks which the judgment raises. It is often the case that commercial parties chose arbitration, as an alternative to litigation, as the preferred dispute resolution mechanism. However, when disputes arise between the parties, one or more of them may pursue litigation in a bid to avoid giving up a 'home advantage' in a local court system. This has led to cases where a signatory to an arbitration clause has brought a joint tort claim in the courts against another party to the arbitration clause, in addition to non-signatories. In the People's Republic of China (the 'PRC'), there has been some uncertainty as to whether the courts have jurisdiction over such composite tort disputes, notwithstanding the arbitration clause. This is partly due to the divergent views presented in the Supreme People's Court judgments considering the issue. Nonetheless, a decision recently handed down by the Supreme People's Court ('the Retrial Decision') has given a clear answer to the question. This Article considers the decision, which will undoubtedly impact upon the future judicial practice of the PRC courts, and compares the approach to that adopted in other common law systems; namely, England, Hong Kong, Singapore and Canada.1 The Article concludes by considering the implications of the Retrial Decision and the concerns which it raises. [ABSTRACT FROM AUTHOR]

A large number of BITs concluded by France contain quite a peculiar clause (for instance Article 10 BIT with Argentina), which has been recently the object of questionable interpretations and applications in EDFInternational S.A. et al. v. Argentina and Mr. Franck Charles Arifv. Moldova. Both tribunals allowed the claimants to benefit, through the MNF clause, from umbrella clauses contained in BITs with third States. It is argued that neither tribunal has rigorously interpreted the relevant provisions in the basic treaty, nor ensured compliance with the ejusdem generis principle. The legal uncertainty that surrounds these provisions is detrimental for foreign investors and States alike. Concerned States should consider taking the measures necessary to clarify, jointly or individually, the content of these provisions and of the obligations stemming from them. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S. Supreme Court case AT&T Mobility LLC v. Concepción, which dealt with the U.S. Federal Arbitration Act (FAA) and federal preemption of state laws in the U.S. Topics include the validity of arbitration clauses in contracts, substantive rights under state law, and the violation of public policy.

The article discusses the problem of conflicting arbitration and forum selection clauses in a single contract. It details the challenges confronting state courts and arbitral tribunals and their approaches on the validity and scope of both clauses. It offers a review of arbitral awards and court decisions rendered in various jurisdictions which indicate that courts and arbitral tribunals have adopted differing approaches in tackling these issues.

The article discusses the arbitral awards in a German Supreme Court jurisdiction. It details the International Chamber of Commerce (ICC) award and a German Supreme Court decision in examining the scope and validity of an arbitration agreement in a contract. It implies that the contract constitutes a valid arbitration agreement under the German law, which can be provided in another clause in the jurisdiction of state courts.

This Article contributes to an ongoing debate, afoot in academic, legal, and policy circles, over the future of consumer arbitration. Utilizing a newly available database of credit card agreements, the Article offers an in-depth examination of dispute resolution practices within the credit card industry. In some respects, the data cast doubt on the conventional wisdom about the pervasiveness of arbitration clauses in consumer contracts and the presence of unfair terms. For example, the vast majority of credit card issuers do not utilize arbitration clauses, and by the end of 2010, the majority of credit card debt was not subject to such an agreement. Likewise, while the use of class waivers is widespread in arbitration clauses, most clauses lack the sort of unfair procedural terms for which arbitration is often criticized. The upshot of these and other findings is that consumers, in some respects, have more choice in their contracts than the literature suggests. Our work also responds to the suggestions of some scholars that businesses favor arbitration clauses in their consumer contracts but not their business-to-business agreements. On the contrary, our research suggests that the difference may not be as dramatic as previous research suggests. These results hold important implications for ongoing policy debates, including the proposed Arbitration Fairness Act pending in Congress as well as the work of the newly minted and controversial Consumer Financial Protection Bureau (CFPI3). Our findings suggest that the Arbitration Fairness Act may be based on faulty empirical premises and that the blanket prohibition contained in the Act may be overbroad. Our findings also provide a model that the CFPB might follow in conducting its statutorily required study of the use of arbitration clauses in consumer financial services contracts. [ABSTRACT FROM AUTHOR]

This note analyses the reasoning of the English and French courts in Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, in which an arbitral tribunal had accepted jurisdiction over the Government of Pakistan on the basis of an arbitration agreement concluded by a trust that was created, controlled, and then extinguished by the Government. It highlights the English courts' clarifications on the degree to which arbitral awards should benefit from the presumption of validity at the stage of enforcement and discusses how the cultural background of the English and French judges - and of the arbitrators - drove them to come to contradictory results. Moreover, it argues that both judges and arbitrators, owing to the way the parties framed their arguments, probably missed the proper solution of the case. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S. Federal Arbitration Act (FAA). Information is provided on the U.S. court case Perry v. Thomas, which dealt with the enforcement of arbitration clauses. Topics include the preemption of state law by federal law and the legality of including arbitration clauses within employment contracts.

The article presents a review of issues that should be considered prior to drafting effective arbitration clauses in contracts. Topics include the scope of the arbitration agreement, the 'do no harm' principle, and the selection of an arbitral forum. Information is provided on the selection of arbiters.

The article focuses on the California court case Ruiz v. Podolsky, which dealt with binding arbitration claims in wrongful death cases. Topics include the California Medical Injury Compensation Reform Act, the enforcement of Physician-Patient Arbitration Agreements, and petition to compel arbitration.

The article discusses problems arising from the arbitration clause which the Jordanian Arbitration Law legitimised pursuant to an anticipated agreement between the parties to refer any dispute arising between them to arbitration. It defines arbitration clause as the text contained within the texts of particular contracts that decides referral to arbitration as a means to resolve disputes that may arise between the contractors. The evolution of the arbitration clause is also discussed.

The article discusses that the U.S. Supreme Court has ruled in the Concepcion and Stolt Nielson cases that franchisors who have bilateral arbitration clauses in their contracts do not automatically submit themselves to class arbitration. This decision confirms the basic principle of the Federal Arbitration Act (FAA) that consent is a requirement. It is however recommended that franchisors include waivers and saving clauses in their contracts in case they want litigation as an available option.

The article examines the reason for the Chinese arbitration law to require the designation of an arbitration institute for an arbitration clause to be reasonable. It states two civil cases presented by the Chinese Supreme People's Court concerning the validity of the Beijing Arbitration clause. It notes that the Arbitration Law of the People's Republic of China took effect on September 1, 1995.

The article focuses on the expansion of arbitration as dispute settlement method in company law. It states that arbitration clauses will be more commonly use despite uncertainties on the scope and formation of such clauses contained in articles of association. Meanwhile, it says that the material validity of an arbitration clause contained in a company's articles under Swiss law must be reviewed on a case-by-case basis and assured by accurate drafting and considering specifities of arbitration.

The article focuses on arbitration clauses and its concerned with the situation which specifies that the law applicable to the matrix contracts is the law of country X by that the seat of arbitration is country Y. It explores a discussion which examines how the law governing an arbitration agreement is settled under English Law. It also highlights a variety of questions circulating the proper law of an arbitration agreement, including the validity, scope and interpretation of the agreement to arbitrate, the jurisdiction of the arbitrators to decide a particular issue between the parties, and the validity of the notice of arbitration.

The article discusses the issues concerning the class action waivers implementation in arbitration clauses, as well as the proposed bills by the legislators in the U.S. It states that most of the employers in the country are including a provision in their arbitration to waive the right to bring class action claims in arbitration. It adds that legislators are also encouraged to enforce an absolute ban on the pre-dispute mandatory arbitration clauses to make case law on class action waivers arguable.

The article focuses on the possible relation of two areas of American law: the unconscionability doctrine and arbitration. The author states that unconscionability is used as a potential defense to liability while arbitration is considered as a dispute-resolving mechanism. He mentions that it was Dick Speidel who proposes the possible use of the defense of unconscionability in arbitration wherein the latter argues that the arbitration clause should be unenforceable because it is unconscionable.

The article discusses the evolution of the choice-of-law trap and provides guidance to lawyers on how to avoid the trap. It is noted that the trap resulted from a construction contract between the Stanford University and engineering firm Volt Information Sciences Inc. It explored three U.S. Supreme Court decisions including one which deferred to the state court's interpretation of choice-of-law clause, another which held that choice-of-law clause could include substantive New York law and one which ruled that the Federal Arbitration Act (FAA) overrode state law. It suggested that removing cases to federal court will give parties a chance of reading their contracts and avoiding hostility to arbitration.

The article looks into the issue of incorporating arbitration clauses in the Bill of Lading. Incorporation rules on germane clauses are illustrated and examined by citing court cases such as Wegener v. Smith and Astro Valiente Compania Naviera SA v. The Government of Pakistan Ministry of Food and Agriculture. The author also looks into the issue of reading working clauses together with the bill of lading to determine intentions.

The article discusses a court case wherein the U.S. Federal Arbitration Act (FAA) does not permit expanded judicial review of an arbitration award, despite the agreement of parties in their arbitration clause that any mistakes of law or fact should be reviewed by a court. The Supreme Court explains the FAA's narrow grounds for confirming, changing or vacating an arbitration award are exclusive.

The article presents a study which examines mandatory arbitration clauses in consumer and non-consumer contracts among various companies. The study explored the contractual practices of several companies which have important market shares or name recognition in sectors involving consumer products, and compared the utilization of arbitration clauses within these companies in different contractual contexts. The methods used by the researchers, and the findings that they have obtained are discussed. The study showed that companies did not favor arbitration in their non-consumer disputes if they required arbitration of consumer disputes, and that companies value mandatory arbitration clauses for their impact in circumventing aggregate proceedings by consumers.

Consumer contracts typically include class arbitration waivers, or clauses that prevent consumers from asserting class claims within arbitration. By limiting consumers' ability to hold businesses liable, these waivers allow companies to continue illegal activity. Although class arbitration waivers have the potential to impose significant harm on consumers, commentators have yet to identify an adequate solution. This Note examines commentators' most commonly proposed solution-legislation prohibiting class arbitration waivers. It argues that prohibiting use of class arbitration waivers is an insufficient solution. Supporters of such a response assume that class arbitration would provide consumers with sufficient relief while adequately protecting the rights of the parties involved. The rules governing class arbitration, however, sacrifice important party rights, suggesting that increased use of class arbitration might provide consumers little relief. After demonstrating these shortcomings, this Note then proposes three alternative solutions: lowering consumers' arbitration costs, increasing administrative enforcement, and limiting choice-of-law provisions within arbitration agreements. [ABSTRACT FROM AUTHOR]

There is a tendency to provide for some means of a brokered peace before the "war" of litigation. Such brokering clauses, dependent on concepts of good faith, are commonly inserted into contracts but uncommonly enforced. Dispute resolution clauses, forcing discussion, mediation, or friendly consultations, are becoming increasingly common in international contracts. The rise in such dispute resolution clauses coincides with growing acceptance of the benefits of negotiation or structured mediation prior to commencing adversarial dispute resolution, such as litigation and arbitration. This article will examine the types of alternative dispute resolution clauses and the extent to which alternative dispute resolution procedures, such as agreements to negotiate or mediate, can be enforced as a precondition to arbitration. [ABSTRACT FROM AUTHOR]

Discusses several issues on contract law in Indiana in 2003. Information on the statute of limitations in contract actions; Violation of contracted-for arbitration clauses; Details of the term collapse in an insurance contract; Court decisions which addressed the issue of awarding specific performance to the seller in a transaction for the sale of real property.

Examines the arbitration clauses governing the award of statutorily-provided attorney's fees and focuses on the treatment of arbitration clauses by the U.S. Seventh Circuit. Discussion of the McCaskill decisions and the retreat of the Seventh Circuit from its original declaration on the attorney's fee issue; Evolution of arbitration of statutory rights; Information on how the arbitration of statutory rights has borne out in the debate over arbitration fees; Analysis of the treatment of arbitration clauses that purport to limit or waive the right to statutory-provided attorney's fees.

Focuses on class arbitration in the U.S. Issues that become important as mandatory arbitration clauses have become standard fare in consumer contracts; Facts of the case filed by Lackey and the Buggses against Green Tree; U.S. Supreme Court justices who dissented and their reason for the dissent.

This article presents suggestions for drafters of arbitration agreements for how to avoid the most common pitfalls-or deadly sins--and how to draft the clause the right way. In so doing, drafters can steer clear of such problems as over-specificity, ambiguity, conflicting clauses and other problems. Too often, drafters attempt to reinvent the wheel. There are time-tested arbitration clauses that work well and are easily adapted to transactions the parties plan to enter. This article identifies seven of the most damning "sins" that plague arbitration clauses and offers suggestions for addressing the most important issues drafters face. From time to time, someone tries to define what a perfect arbitration clause would look like. Efforts to do so usually founder on one of the strengths of arbitration, which is its adaptability to the particular circumstances of the parties and the dispute. The list of optional provisions could be extended almost indefinitely. To avoid drafting an over-specific arbitration clause, which can get the drafter's client into trouble, the safest course is to start with a standard, proven clause that the courts have regularly enforced.