commercial arbitration class 2

federal arbitration statute (see appendix 2)

if there's a written agreement, the court can only refuse to enforce
if it's on the same grounds that render any contract invalid.

courts decide whether the language falls within the scope of the arbitration --

arbitability means 2 things:
1. whether a dispute falls within the description of disputes covered
    by the arbitration clause
2.

NYCPL s. 7501 see appendix 1
the court isn't supposed to consider the meritability of the dispute.
meaning, even stupid claims are supposed to be handled by the arbitrators
not the court.

what if a party is recalcitrant about an arbitration?
a party to the contract can file a court action, but the other says that it
should go to arbitration.

"where a party is aggrieved by failure to arbitrate, the party seeking
arbitration can get the court to stay a court action and enter an order that
the case has to go to arbitration."  -- without this kind of provision,
treating a contractual arbitration agreement wouldn't have much sway....

if you have an award, it's not worth anything if it's not voluntarily
complied with or its turned into a judgment. both state and fed
have confirmation procedures:

see section 9 - 11 of federal arb stat, which deal with how to grant the
award or to deny the award under stat basis (award conferred by
corruption, fraud, misconduct, unfair hearing, excess of arbitrator's powers)

but again, there's nothing to suggest that errors of fundamental law or fact
create a basis to deny an award. there are limited public policy reasons to
refuse to confirm that we will explore later (for example sending a heroin
addict back to work at a power plant), and amicus disregard.

but part of the ouster concept and reluctance to arbitration was the idea that
people going to arbitration wouldn't have the protection of the appellate level.
but if parties are submitting to arbitration, either by honoring the clause or
by agreeing to arbitrate post-dispute, once the award was entered, it was
good and courts would rarely interfere with the award. the only time courts
would revoke would be times where parties would complain. parties can also
always settle a dispute, and courts do not get into the fairness of settlements or
consideration. history of these policies is pretty choppy.

these statutes were created to deal with merchantile arbitration. but whether the terms
of the enactments of 1925 were sound or not, congress was not thinking of arbitrating
securities or civil rights.

additionally, the statute talks about interstate commerce -- in 1925, congress
meant boats, trains, and shipments from state to state. nowadays, you don't
have to intend interstate commerce or for activity to take place in multiple
jurisdictions. this clause has huge impact, because you can arbitrate ginormous
claims!

when you go to arbitration you give up right to trial by jury. juries have
always been waivable by both parties. but some people argue that it is a
knowing act to waive the right to jury, and the common place use of
arbitration clauses creates a question of what does "knowing waiver" means?
why should we expect that people understand what arbitration is?

under choice of law principles, why not arbitrability? in a law suit involving
people from all over and a court different from where the court sits, why doesn't
that change to have the court invariably turn to its own rules to govern procedure?

procedure is at least somewhat linked with remedies -- therefore, what remedies
are available to a wronged party? early thinkers talked about arbitration
as a remedy (keeping in mind, one for which there was no jury).
because of this, arbitration didn't run into constitutional obstacles
because state constitutions would set up types of jurisdictions, and if arbitration
had been seen as a type of court, then it would have been difficult for the legislature
to establish it by statute.

are arbitrators required to apply the law?