commercial arbitration class 3

neutral v. designated arbitrator. 
who makes the decision that the arbitrator might not serve?
usually the tribunal.

every once in a while, a party may want to get rid of an
arbitrator.

when is this likely to happen?
in AAA, the parties chose the neutral from a selection.

more than one arbitrator, all neutral, in securities. and someone
may trump up a minor infraction to get rid of someone.

disclosure isn't limited just to arbitrators

arbitrators should be even more careful than judges to keep clear of the
parties. but posner said that the arbitrators are chosen in light of their
familiarity and knowlegde of an area, so the more specialized the more
likely an arbitrator has dealt with a party in the past.

arbitration process.
statement of claims -- can be letters, or something more or less formal,
usually more discriptive than court pleadings. the core issue is set forth
the issue of the pleading. sometimes its better to do it in a textual way.
and sometimes its not.
after pleadings are exchanged, then there's pre-hearing conferences
to have the arbitrators do whatever is necessary to facilitate discovery.
except in very complex cases, a main difference between arbitration and
court is that there's not depositions/ interrogatories, etc but just an
exchange of documents at this point. and if parties can't agree, they
go to the arbitrator to order exchange. occasionally, there's a need for docs
from third parties and arbitration courts as well as arbitration attorneys have
subpoena power.
order of preclusion -- issue preclusion is not unusual and is a pretty effective
sanction.

AAA is non-profit. increasingly there's for profit arbitration, such as JAMS.
there's many retired judges that are on the roster of neutrals, and they
tend to command pretty high fees. then there's FINRA - which gets a lot of
flack, but is regulated by the SEC which wants investors to know they can get
a fair shake from the finra arbitrators.

difficulty for FINRA - suitability claims (monday morning quarterbacking)
which are often brought under securities statutes
brokers must report (what?) and forms that contain this information are
public. so if someone wants the

the state AG has to be allowed to enter the dispute. all of this is a strong
incentive for brokers to *not* settle cases.

arbitration of statutory claims.

see peripheries of arbitration materials:
- anytime a contract delegates out certain types of determinations,
loosely, you can call it arbitration: a neutral is brought in to make
some kind of determinations.
- earlier forms of arbitration usually fell into ethnic sects that
wanted to preserve certain customs against what might have been
perceived as a hostile legal environment.

what happens in post-award proceedings in regards to the award?


arbitration in the past: business disputes based in common law,
usually breach of contract where arbitrators would sort out any
factual issues and apply the laws agreed to and reach a result.
arbitrators were often appointed by agreement of the managers and
unions to regulate/bargain between employers and employees. the
fact a laborer could go to an arbitrator and get a judgment for the
employers to do something was considered a quid pro quo right to
strike. the commercial arbitor awards are not precedent and have
nothing to do with stare decisis. this is part of why people feel that
arbitration has more opportunities for equity.

fraud, tort claims... not so much. these are typically merchantile
disputes. the fact that arbitrators aren't lawyers doesn't matter too much
because they know the custom/usage of the industry and they know
business such as to understand how to read a contract, etc.

instead, over past 25 years, there's an explosion to formal arbitration,
mainly lead by SCOTUS.

wilko v. swann - a customer arbitrating is waiving the fundamental statutory
protections because it's essentially remnant of the ouster of the court.
adhesion contracts aren't by nature unenforceable unless there's something
wrong with the contract. the arbitrator can still be held accountable if
it manifests disregards - more than mere legal or factual error.

so wilko is pro-arbitration but it doesn't mean that actions under the
securities laws are mandatory securities arbitration. and implicit to this
is that certain statutory rights are public and for the protection of
every citizen (every citizen has an interest in preventing employers from
discriminating, in keeping brokers from misconduct, etc). the dissent says
that the failure to observe the law is grounds to vacate the law. file this case
away and see later if it turns out to be true.

at this time, the courts had to be sure that arbitrators would adhere to laws.

why do you think that SCOTUS picked shirk?
1. international company, because many international companies have
sovereignty issues
2. a major corporation and it knows what games its playing

for next week:
- wright case