commercial arbitration class 1

exam: "give a fair shake, you wont' have a problem."
tele ext. 6008
room 4-10


right to a jury trial, though this could be waived in a contract.

late 19th cent/ early 20th cent arbitration:
something about the right to go to court unless you really, really, really don't want to.
when court was faced with an arbitration agreement, it became an issue of whether or not the court handled it or gave it to an arbitrator.

"ouster of jurisdiction": the courts were very protective of their dockets -- simply put, a lot of judges didn't want to be put out of business. and also, most judges had a feeling that arbitrators couldn't handle cases as well as they did. many courts would hold that you couldn't even settle cases by arbitration. so the arbitration clauses proved fairly useless.

1920s -- the NY arbitration statute restructured this.
see NYCPL s. 7501

after this came the federal arbitration statute, largely modeled on the NYS one. over the years, all states incorporated similar statutes to deal with enforcement of arbitration clauses in contractual disputes.

now, the arbitration clause can be interjected and administered as the parties see fit in the confines of the contract.

arbitral tribunal: place where you go to conduct arbitration. simplified procedural rules, but still the assumption is that once you select a tribunal, you will be incorporating their rules.

commercial rules of the american arbitration association.

financial industry regulatory authority (finra).


enforcement -- what does that mean?
basically, that if someone is not cooperating, then you should be able to go to court with an injury that can be addressed in court and be remedied.

each of the statutes allows for creating an award that settles a dispute.

there's nothing in the statutes that discuss whether or not an appellate can review de novo/reverse a decision *only if the tribunal arbitrator is wrong* (this is a concern in the consumer and the brokerage areas), but the standard is that for errors or law or fact -- generally is not a review.

are arbitrators supposed to apply the law? SCOTUS says "arbitrators are supposed to stay faithful to the statutes" but what does this mean???

the US has been super gung-ho arbitration over the past 20 years. but when these statutes were written, there weren't anti-discrimination acts, securities acts, anti-trust acts... these are based on common law issues! the federal courts deal with other types of statutory claims because of federal question/diversity. SCOTUS has knocked down a lot of case law that said stat claims were not

there's frequently motions in congress to cut back on arbitration of commercial/consumer disputes. and obama banned federal contracts that have employee arbitration clauses.

arbitration -- a sense that there's more flexibility to do equitable remedies. but it's hard to say how far that goes....

integral elements:
1. at least one neutral arbitrator
2. fundamental right to put in a case. rules of evidence don't apply. must let material into the record.
3. procedures that are fundamentally fair. such as procedures for selection of arbitrators, neutrals, etc.
4.