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This article explores the topic of arbitration waiver in the context of franchise agreements. It discusses the prevalence of arbitration provisions in these agreements and the actions that parties may take before seeking arbitration. The article examines the question of when a party waives its right to compel arbitration and looks at the varying outcomes in federal courts. It focuses on the Supreme Court case of Morgan v. Sundance, which determined that a showing of prejudice is not necessary to claim waiver of the right to arbitrate. The article concludes by evaluating the practical implications of the Morgan decision on franchise law practice. It also discusses the Supreme Court's decision in Morgan v. Smith Barney, which clarified that the Federal Arbitration Act does not allow federal courts to create special procedural rules favoring arbitration. The goal of the Act is to treat arbitration agreements like any other contracts. The article provides examples of how the Eighth and Ninth Circuits have applied the Morgan decision in arbitration waiver cases. It highlights the impact of the Morgan decision on lower courts' approach to waiver in the arbitration context. The article discusses various cases in which courts have analyzed whether a party has waived its right to compel arbitration. The courts focus on the conduct of the party claiming the right to arbitrate and have largely eliminated the requirement of prejudice. Factors such as the party's knowledge of the right to arbitrate and intentional relinquishment of that right are considered. The article notes that these cases are fact-specific and there is no clear rule. It also discusses the concept of waiver in arbitration [Extracted from the article]

The duty to give reasons in arbitral awards has a mixed history. While it can be traced back to the second part of the 20th century in England, it has been part of accepted practice in civil law countries for a long period. It has become the norm in international arbitration, both in commercial disputes and in investment disputes. While the duty to give reasons is, in general, positive, this article suggests that many international awards tend to be too long. This prolongs the arbitration proceedings and increases costs—both in terms of the arbitrators' fees and the costs that the parties to dispute must bear while waiting for the award to be issued. To tackle this problem, the article examines the required scope of reasoning in international awards; it then discusses why many international awards tend to be too long. Finally, it suggests ways in which awards can and should be shorter. [ABSTRACT FROM AUTHOR]

In this article, the authors consider the top 10 issues regarding arbitration clauses that arise nowadays, and the extent to which the courts of Singapore or Hong Kong have dealt with them. [ABSTRACT FROM AUTHOR]

This article explores the use of mandatory arbitration clauses in consumer contracts, focusing on the concerns surrounding their impact on consumers and the need for protection. It discusses the use of arbitration agreements by predatory payday lenders to evade lending laws, particularly through partnerships with Native American tribes. The article suggests a framework for analyzing delegation clauses and unenforceability claims, and recommends that courts follow the example set by certain circuits in finding agreements that waive a borrower's federal statutory rights to be unenforceable. It also proposes changes to current FAA rules regarding arbitration between companies and consumers. The text highlights the lack of consumer protections in arbitration agreements, the violation of the effective vindication doctrine, and the issue of class action waivers. It also addresses the differing interpretations of courts regarding delegation clauses and prospective waivers of rights, arguing for a uniform application of the prospective waiver doctrine. The article concludes by discussing the split in the interpretation of the FAA and its impact on consumer protection laws, and suggests that the Supreme Court needs to settle this issue. It further emphasizes the potential for abuse by tribal lending companies and proposes standardized tests and legislation to strengthen consumer protections while preserving the use of arbitration agreements. Overall, the text emphasizes the need to balance the expansion of arbitration with safeguards for consumers. [Extracted from the article]

This document is an opinion by Mr. J. Christopher Thomas KC in a case between Ioan Micula, Viorel Micula, and others as claimants and Romania as the respondent. Mr. Thomas agrees with the decision reached by his colleagues but disagrees with certain findings. He discusses the timing of Romania's application for interpretation and the allocation of responsibilities between tribunals and enforcement courts. The text also explores the issue of requesting interpretations of awards in international arbitration cases, referencing previous cases and emphasizing the importance of party compliance with awards. The author expresses reservations about a specific case but agrees with the general criteria for admissibility of a request for interpretation. Overall, the text provides insights into the considerations and circumstances surrounding the request for interpretations of awards in international arbitration. [Extracted from the article]

The article introduces the legal framework for arbitration in Pakistan and provides recommendations for drafting arbitration clauses in international commercial agreements or contracts with Pakistani parties. Topics discussed include arbitrability of disputes, applicable law to the arbitration agreement and dispute, modes to commence arbitration, jurisdiction of the arbitral tribunal and the courts, recognition and enforcement of arbitral awards and arbitration agreements.

The article tackles the complexity of the delegation of authority to arbitrators to decide on their own jurisdiction with the incorporation of the American Arbitration Association's Commercial Arbitration Rules and a carve-out from the scope of disputes subject to arbitration. Topics discussed include conflicting decisions on cases involving the application of an arbitration clause, differences in the language of arbitration clauses, and arbitrability in the context of deciding on delegation.

On 4 May 2023, the Hong Kong Court of Final Appeal (CFA) delivered a groundbreaking judgment in Re Guy Kwok-Hung Lam [2023] HKCFA 9, in relation to whether a foreign exclusive jurisdiction clause (EJC) should be upheld in insolvency cases.The CFA decided that in an ordinary case where there is an EJC, absent any countervailing factors such as the risk of insolvency affecting third parties and a dispute that borders on the frivolous or abuse of process, the petitioner and debtor out to be held to their contract (‘the Guy Lam Principle’). Following the judgment, two cases have appeared before the Hong Kong Court of First Instance where the court has been asked to consider whether the Guy Lam Principle also applies to arbitration clauses.The Honourable Madam Justice Linda Chan and the Honourable Mr Justice Jonathan Harris have handed down what appear to be diverging judgments on this issue in Re Simplicity &Vogue Retailing (HK) Co Ltd [2023] HKCFI 1443 and Re Shandong Chenming Paper Holdings Ltd [2023] HKCFI 2065, respectively. [ABSTRACT FROM AUTHOR]

The article focuses on the phenomenon of mass arbitration and its impact on the civil justice system. It provides an overview of the rise of mandatory arbitration and the emergence of mass arbitration as a tool used by plaintiffs. It also discusses various responses to mass arbitration by defendants, such as dropping mandatory arbitration clauses, seeking relief from their own agreements, and trying to cut mass-arbitration counsel out of the picture.

The article provides a solution to curb arbitration provisions that exceed the scope of the U.S. Federal Arbitration Act (FAA). Topics discussed include history of arbitration and the purpose of the FAA doctrine, the U.S. Supreme Court's FAA jurisprudence, questions about the jurisprudential approach to the savings clause of Section of the FAA in Mey v. DirecTV and Revitch v. DirecTV, and the phrase arising out of in Section 2 of the FAA as a defense against infinite arbitration clauses.

The decision provides guidance on the law governing the interpretation of a forum-selection clause under the PILA. Subject to a specific and deviating choice of law that applies to the forumselection clause, and if there is both a jurisdiction clause and a choice-of-law clause, the law that applies to the main contract also applies to the interpretation of the forum-selection clause. While this decision provides more predictability and reduces the likelihood for disputes, it is not comprehensive. The decision also confirms that the more flexible rules applying to the interpretation of arbitration agreements do not apply to forum selection clauses. [ABSTRACT FROM AUTHOR]

This article explores the ongoing debate among lawyers regarding the use of arbitration as a method for resolving disputes between lawyers and clients. Supporters of arbitration argue that it is a faster, more cost-effective, and confidential alternative to litigation. However, critics point out that arbitration may not always be the quickest or most economical option and lacks appellate review. The article provides guidance to lawyers who wish to include arbitration clauses in their engagement agreements and enforce them against resistant clients. It also discusses the varying requirements for binding arbitration clauses and the additional obligations imposed by state ethics committees. The article examines the views of courts and ethics committees on arbitration of fee disputes, legal malpractice claims, and ethical complaints. It concludes by outlining six key considerations that lawyers must address to ensure the enforceability of their arbitration agreements. The article emphasizes the importance of providing clients with sufficient information to make informed decisions about arbitration and ensuring that the terms of the agreement are fair and reasonable. It also highlights the need for clear and straightforward language in arbitration clauses and the potential for clients to argue waiver of arbitration based on litigation conduct or unnecessary delay. [Extracted from the article]

The article focuses on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which aims to prevent employers from silencing victims of sexual harassment and assault through mandatory arbitration clauses. Topics include the prevalence of sexual harassment, the case of Gretchen Carlson and the creation of Lift Our Voices, and the potential ambiguities and implications of the End of Forced Arbitration of Workplace Sexual Assault Act.

The article explores how arbitral rules in an unsophisticated arbitration agreement invalidates an employee's clear and unmistakable manifestation of intent to arbitrate questions of arbitrability. Topics discussed include role of delegation clauses in the agreement of parties to arbitrate questions of arbitrability, contract of adhesion theory, doctrine of unconscionability and principles of incorporation by reference, and rebuttable presumption of unsophistication for certain contracts.

The article focuses on the phenomenon of mass arbitration and its limitations as a solution for employment rights issues caused by mandatory arbitration clauses. Topics include the rise of arbitration clauses, the impact of class waivers, the shortcomings of mass arbitration, and the need for collaboration among various groups to effectively address the challenges posed by the current system of private law enforcement in employment.

In a few years, four out of every five nonunion workers in America will have been forced by their employers to sign an individual arbitration agreement as a condition of employment. This new reality, coupled with the U.S. Supreme Court’s fealty to compelled arbitration and cramped reading of Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”), has killed the employment discrimination class action. But that does not imply the death of collective redress for workers suffering from discrimination. In that spirit, this Article engages in two analyses to keep equal employment opportunity alive at scale. First, it examines forty years’ worth of litigation strategies to assess which ones have been the most successful at collectively accessing justice on behalf of work discrimination victims. It argues that relatively unsuccessful strategies attacked the applicability of the Federal Arbitration Act to employment contracts, the scope of that act and Rule 23, and the enforceability of contracts containing individual arbitration agreements. In contrast, relatively successful strategies—such as public enforcement, qui tam actions, and states using their parens patriae powers to sue employers under Title VII and related statutes—accepted the validity and ubiquity of individual arbitration agreements but nevertheless found a way around them by litigating through nonworker real parties in interest. Second, this Article applies the principle that nonworker real parties in interest cannot be compelled into arbitration in furtherance of closing the justice gap for workers suffering discrimination. To that end, it advances the provocative claim that the private rights of action in employment antidiscrimination statutes like Title VII countenance private enforcement actions by nonworkers whose interests arguably align with workers, such as certain nonprofit organizations, even when those nonworkers bring claims on their own behalf and not on behalf of workers. Accordingly, one such plaintiff—that is, a real party in interest that did not sign an arbitration agreement with the employer-defendant, that cannot be compelled into arbitration, and that need not be concerned with certifying a class—can file an action seeking remedies that would inure to the benefit of a class of work discrimination victims. This Article maintains that overcoming our contemporary barriers to workplace equality requires not just attacking those barriers head-on, but also leveraging heterodox avenues for enforcement as a means of navigating around those barriers. A functional, modern enforcement paradigm calls for nonworker real parties in interest to bring private enforcement actions that would inure to the benefit of classes of workers suffering from discrimination, thereby fashioning an employment discrimination class action by any other name. [ABSTRACT FROM AUTHOR]

The article focuses on recent decisions by the eight Circuit and the Supreme Court concerning arbitration clauses, jurisdictional issues, and procedural matters. It highlights the Supreme Court's ruling that the court, rather than the arbitrator, decides whether claims under subsequent contracts are subject to arbitration, the eight Circuit's handling of federal question jurisdiction, and various procedural rulings related to class certification, expert testimony, and personal jurisdiction.

This case-law study endeavours to share with legal professionals the difficulties met in Romania by the exequatur proceedings relating to foreign arbitration awards, which are commonly generated by pathological or incomplete arbitration clauses. [ABSTRACT FROM AUTHOR]

Resolving tax treaty disputes and improving dispute resolution mechanisms for tax treaty disputes have been important topics for international tax for decades, but it has not been an easy journey for the international tax community including policymakers, international bodies, and academics to come up with a clear solution. Similar to other global policies that require a multilateral agreement, a multilateral approach to a global tax policy cannot be easy as relations among the states with different backgrounds need to be coordinated and it involves critical issues relevant to national interests such as tax sovereignty, revenue, conflicts with domestic laws, and financial resources. That being said, the current global approach to resolve unsuccessful Mutual Agreement Procedure ("MAP") cases of a tax treaty seems fairly straightforward under both the Organization for Economic Co-operation and Development and the United Nations' Model Tax Conventions as both simply suggest arbitration to step in to render a final decision for the unsuccessful MAP cases. However, due to the factors mentioned earlier, the vast majority of the bilateral tax treaties do not contain the arbitration clause, and it seems quite clear that an approach needs to be made from both within and outside the boundaries of international tax, tackling sub-issue by sub-issue, in order to improve dispute resolution mechanism for tax treaty disputes. This Article aims to highlight the importance of having the arbitration clause in a tax treaty, and focusing on the financial aspects of tax treaty arbitration, examines whether third-party funding ("TPF"), which has become more mainstream in traditional international arbitration proceedings, could be utilized in tax treaty arbitration to remove certain financial barriers as in other traditional arbitration proceedings by analyzing (i) any legal barriers, (ii) benefits from a justice perspective, and (iii) investment merit from a funder perspective. For the analysis, the Article specifically discusses (a) the current issues and the status quo of the MAP and tax treaty arbitration, (b) how TPF has been utilized in international arbitration and helping parties without or insufficient financial resources, (c) differences and similarities between tax treaty arbitration and other types of international arbitration i.e., international commercial arbitration, investor-state arbitration, and state-state arbitration, and (d) TPF from both the taxpayer claimant and the funder perspective. [ABSTRACT FROM AUTHOR]

Alternative Dispute Resolution (ADR) plays a dominant role in the resolution of most legal disputes whether by choice, contractual duty, or mandate of court. This Article argues that because of its growth and prominence, alternative dispute resolution is no longer "alternative." The Author claims that ADR's status as a default process in modern litigation contradicts its foundational principles of voluntariness and the strengthening of legal rights. The appeal of ADR for lawyers and judges is efficiency: saving time and controlling litigation costs. The Author argues there are more ways to promote those goals without defaulting to ADR. The Article advocates for restoring ADR's "alternative" status in order to preserve access to the law and to empower litigants to engage with conflict on their own terms. [ABSTRACT FROM AUTHOR]

Even though the plaintiff distributors had not executed the agreements containing the arbitration clause, the court found that the plaintiff distributors were bound by the arbitration clause because they were aware of the contracts and had accepted benefits under the contracts. Even though it was undisputed that the alleged unlawful acts were committed by the franchisee, not the franchisor, the court found disputed issues of fact as to whether the franchisor exercised sufficient control over the franchisee's employees so as to subject the franchisor to liability as an employer. While the court recognized that the franchisor had no involvement in hiring the employee, did not provide any tools or equipment to the employee, and did not pay the employee or provide him with any benefits, the court found that evidence regarding the franchisor's ability to control hiring decisions and day-to-day management of the franchise location was sufficient to preclude summary judgment. After reviewing the agreements at issue, the court found that the franchisee's failure to adhere to the development schedule or pay contractually required fees were not caused by the franchisor's acts or omissions, and awarded over six hundred thousand dollars in damages to the franchisor. [Extracted from the article]

Copyright of Cuestiones Políticas is the property of Revista Cuestiones Politicas and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Libyan law allows for arbitration exclusively in administrative contracts of an international character, thus; the agreement of the parties in the arbitration clause shall implies an express departure from the exclusive jurisdiction of the judiciary; Therefore, it does not automatically extend to disputes resulting from the concluded contract; Rather than that it is a Stipulation agreed upon between the contracting parties and the validity of this Stipulation is subject to specific written consent in accordance with the provisions of Libyan legislation; Although it did not obligate its parties to use specific words; However, this agreement shall result from a verb of the required form, This is stipulated in Paragraph (B) of Article 83 of the Administrative Contracts Regulations issued by Cabinet Resolution (formerly the General People's Committee) No. 653 of 2007; Because derogation from the administrative judge's jurisdiction is considered a violation of the rules for protecting obligations contained in the administrative contract. [ABSTRACT FROM AUTHOR]

Copyright of Basic Education College Magazine For Educational & Humanities Sciences is the property of Republic of Iraq Ministry of Higher Education & Scientific Research (MOHESR) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Arbitration provisions are material portions of a contract or purchase order that were bargained for by the parties and allow for a potentially cheaper and quicker resolution to contractual disputes as compared to protracted litigation in state or federal courts. However, what happens to an arbitration provision contained in a contract that was rejected by a contract counterparty that filed for bankruptcy? That is precisely the question that was addressed in a recent opinion from the United States Bankruptcy Court for the Northern District of Texas (the "Bankruptcy Court") in the Highland Capital Chapter 11 case.1 This article will summarize the Bankruptcy Court's opinion in Highland Capital and discuss the import of whether an arbitration clause contained in a contract that was rejected by a debtor is enforceable. [ABSTRACT FROM AUTHOR]

This Article reports the first ever empirical study of how Chinese-owned businesses in the United States utilize contract clauses to choose dispute processes. As a large and recent source for foreign direct investment in the United States, China presents an interesting case study of whether foreign owned businesses replicate American dispute resolution process choices (e.g., whether contracts include arbitration clauses or not) when disputes arise within the United States. This study also offers a window into the continuing scholarly and practical questions of whether American courts (or other arenas) are considered "biased" against foreign litigants. Using data from a comprehensive survey of Chinese firms operating in the United States, we explore a number of factors, such as state ownership, business sector type, and size of U.S. investment, that might influence whether Chinese-owned companies prefer arbitration or litigation in disputes arising in the United States. We find several factors to be correlated with the presence of arbitration clauses in Chinese business contracts: sensitivity to costs and fees, access to corporate internal legal advice, views about judicial fairness, and preference for U.S. lawyers with Chinese backgrounds. While filling important knowledge gaps, this study also raises several novel questions for further consideration: whether there are changes in contract terms and dispute process choices post recent trade issues in China-US relations, the extent to which Chinese-owned businesses are either sui generis or similar to other foreign businesses in the United States, and, as will be reviewed in this article, whether changing dispute process choices within China are influencing choices Chinese businesses make when they operate abroad. [ABSTRACT FROM AUTHOR]

As the economy makes inroads into the digital industry, consumer rights are restricted and the interest of companies to innovate is limited. This raises questions regarding the validity, effects and practicality of arbitration clauses contained in the terms and conditions of digital platforms, applications, and online services. Unnoticed, questionable practices have been introduced in the drafting of these clauses, further limiting social rights that not always find support on judicial precedents. This article begins by establishing a doctrinal approach on the application of such clauses, given the academic and doctrinal inactivity on these matters in the digital sector. Based on this, it analyzes arbitration clauses in digital platforms that in recent years have been subject to investigations for anti-competitive practices. Through this analysis, a mechanism is proposed for the study of claims arising from the relationship between digital companies and consumers, as well as the use of objective terms to solve the legal problems that will inevitably result from the interaction between digital economy, consumer rights and economic competition. [ABSTRACT FROM AUTHOR]

This article aims to analyze, within the franchise system, a possible collision between the principle of protection of the dependent contractor and the principle of binding contracts. The reason for the debate is the recent decisions of the STJ, which recognize the nullity of jurisdiction and arbitration clauses in franchise contracts for having been improperly inserted in adhesion contracts between parties that would be in asymmetrical positions. Thus, through the deductive method, we seek to analyze the current interpretation of the STJ and the principles that govern franchise agreements and verify if there is, in fact, a collision of principles. [ABSTRACT FROM AUTHOR]

The article focuses on the role of arbitration in the law and how it functions in employment disputes and limited methods to overturn arbitration awards. It mentions ability of courts to vacate arbitration awards under the public policy exception should be expanded in Minnesota as a more immediate and robust solution. It also mentions perpetual risk of harm at the hands of officers whom officials have discharged as a result of their conduct, but whom arbitrators, with no public accountability.

Following two recent decisions from the apex courts in England and Singapore on the appropriate methodology to ascertain the proper law of an arbitration agreement, the positions in these two leading arbitration destinations have now converged in some respects. But other issues of conceptual and practical significance have not been fully addressed, including the extent to which the true nature of the inquiry into whether the parties had made a choice of law is in substance an exercise in contractual interpretation, the applicability of a validation principle, and the extent to which the choice of a neutral seat may affect the court's determination of the proper law of the arbitration agreement. We propose a re-formulation of the common law's traditional three-stage test for determining the proper law of an arbitration agreement that can be applied by courts and tribunals alike. [ABSTRACT FROM AUTHOR]

At issue in the Supreme Court of Canada's recent decision in Uber Technologies was the ability of platform operators to rely on mandatory arbitration clauses in their contracts with platform workers to avoid judicial enforcement of statutory employment rights -- in this case, the Ontario Employment Standards Act. The Supreme Court agreed that the clause in question was unconscionable and therefore invalid, but declined to comment on whether it was, in addition, an illegal contracting-out of the Act's provisions. However, the Court's ruling does little to resolve the larger question of what legal space exists for mandatory arbitration clauses in employment contracts. This paper discusses why such clauses are, by and large, an exercise in futility, and cannot achieve their ostensible purpose of barring access to remedies for violations of statutory employment rights. The author builds on this argument to suggest that there is an underlying principle of public policy that precludes contracting-out of public enforcement mechanisms for protective employment laws in the absence of specific statutory authorization. Examples include the remedial regimes for workers' compensation and human rights claims. It follows that a prohibition against contracting-out of employment standards legislation simply instantiates the broader principle that private agreements cannot lawfully deny access to an administrative remedy to vindicate statutory employment rights. The author urges that what is already implicit in Canadian employment law be made explicit. [ABSTRACT FROM AUTHOR]

Arbitration is rarely thought of outside the legal and business world by the everyday lay person. Whether we know it or not--all of us, in some capacity, have agreed to a mandatory arbitration clause. A contract for cellular service, an employer-employee arrangement, or an agreement to open a bank account are just a few common examples that lock not only clients, but also employees, in contracts that contain mandatory arbitration clauses. In 1925, the Federal Arbitration Act was imagined to propel the efficiency of justice. However, the Supreme Court has greatly expanded the scope of the Act; which, in turn, has twisted the original intent of the Federal Arbitration Act and created a loophole for corporations to avoid class action litigation all together without even looking toward the merits of each case. Allowing this kind of abuse only deprives consumers and employees of their Seventh Amendment right to trial as mandatory arbitration clauses only seem to become more commonplace. Originally, the Federal Arbitration Act was enacted to create another avenue to dispute resolution in order to speed up cases where both parties agreed to avoid trial. Now, arbitration is a wonderland for large companies where the world of justice is flipped on its head and rules of evidence are thrown out without any regard for the law. Even though arbitration is a private dispute resolution, this should not undermine basic due process measures. Simply because large corporations want to avoid the expenses of the trial courts and damages, this does not mean justice should be put on the wayside. Individuals may be left in a worse position after arbitration--even if they come out on the winning side. [ABSTRACT FROM AUTHOR]