commercial arbitration class 4

no jurisdiction over interstate commerce for arbitration statute!
you only end up in federal court to compel arbitration if a dispute
includes either
1. federal question
2. diversity, where one party invokes right to fed court

so in a typical commercial case, anything with arbitration goes to
state court:
does state court apply the principals of arbitration by federal or
state court? FEDERAL COURT!

the breadth of the pro-arbitrability movement under SCOTUS is
enormous. arbitration was largely a creature of trade deals with
europe and involved specialized commercial matters that unless
that kind of arbitration was engaged in arbitrarily, this country
refused to enforce even those types of disputes. then, statutes that
follow instruct the courts that these are enforceable as any other
contract. and then starting with the itnernational cases of the 70s,
for the first time, SCOTUS decides that, within limitations, all
federal question cases are arbitrable as common law is.

what objections were overcome?
1. the fact that congress told the courts that they couldn't protect
their own jurisdictions in private business cases didn't mean
that they wouldn't fight for commercial arbitration. plus the thought
was that even if you got judges who weren't as clear on the law,
they would have more expertise about certain trades and usages of
an industry and that would leave them better equipped to handle
certain contractual issues.
2. statutory claims -- why does congress pass a securities statute?
in part to give individuals a right to sue and to protect certain interests.
but the statutes are also for the prtoection of society at large, and
have to do with administrative agencies with enforcement rights
to go into courts, conduct investigations, etc. more of an impetus
in making sure that these claims were decided correctly. if parties
wanted to kowingly leave a private dispute to arbitrators, fine. but
parites can take away from the power of the courts the right to
decide public interest statutory claims [without regulation]. these
statutes were also thought to require a specialized understanding of
the law.

trade is getting increasingly internationalized. SCOTUS ultimately
holds that sophisticated business entities are absolutely free to
designate which laws they want to control their disputes and are
free to designate which forum they want to have control the dispute --
even if the country has nothing to do with the dispute! there's an
increased realization that foreign entities will be very unwilling to
submit themselves to the jurisdiction of their adversary (very often
the foreign entity you're dealing with is governmental, too). since
the entities are free to litigate under the forum and law they want,
things are ridic. then in 1988, after wilko, the UN convention is
enacted. the statutes require companies to give up sovereignty
unless there's adherence to a "reciprocity provision". the only basis
to refuse a foreign award is public policy and some courts have
said that you can't not enforce an award for disregard.

so unless there's a treaty...
it's an issue of commity.
so they're elevated from an enforcement standard even more than
international court judgments.

but what do you give up?
1. for example: US company agrees with foreign company to arbitrate
in foreign country and in foreign law, what happens with statutory
rights in regards to foreign operation? sometimes it matters, and
sometimes it probably won't, and wouldn't you know that SCOTUS
picks cases that pose the fewest problems to create precedence.

shirk 417 US 506
it will be arbitrated in paris under the laws of IL.
the claims being asserted
the federal securities statutes involvement?
there was a sale of corporate stock which gave ownership of IP
but if you didn't have the protections you would have chaos
with the parties trying to find different jurisdictions to
review the matter!

what would work as examples of not enforcing per public policy?
it would have to be huge, for example, something like trafficing
human slaves.

mitsubishi v. soler
you still get anti-trust cases all over. there's one currently on
whether the NFL can get exclusive right to sell team uniforms
to fans.
a manu causes a distrib or retailor to not sell below a certain price.
this is vertical restraint. 
so now we see recommended retail price
rule of reason -- the court uses it for anti-competitive processes
which are not per se unreasonable

there's essentially nothing that he SCOTUS is going to do:
not a matter of SMJ or IPJ - the alleged acts are committed in US
this case is that there's an arbitration agreement and the UN convention
and there's precedent that arbitration extends, particularly in
international cases, to statutory claims. the dissent says that the
parties agreed to arbitrate what comes out of the contract.
but the statutory issues in this case didn't arise from the contract!

unlike in shirk, the us company here DID have a possible remedy
but for the arbitration clause.

chang v. mc ginn, smith.
if this had gone to court, would probalby not have been a
compromise. and the arbitrators seemed to have understood the
results better than a judge would have been able to. about half
of these claims win at arbitration, but for the cost of the loss,
taking into account the loss of the market. there's usually a
finding of shared fault.

adhesion contract, is not enough to invalidate.
the burden is on the claimant to show what's against public
policy -- that it is against the face of or legis history of a
statute, or there must be something inherently inconsistent with
the purpose of the statute and arbitration.

not looking at the facial neutrality of this. this is used more
in racial cases, and is harder because it needs a class action,
needs lots of discovery, needs a lot of expert testimony, etc.
and there's nothing new. unless the statute or the legislative
history says otherwise or there's something inherent in the
statute that makes arbitration improper. this is an industry
dispute, not a customer dispute. so there will be an industry
arbitrator and SEC forum, instead of federal court -- where
would you rather be? the public perception would be that
you want to be in court.

it so happens that in the past several years, the SEC has
changed the rules so you don't have to arbitrate. a lot of the
pressure to change was based on the perception, since many
cases are harrassment and are glass ceiling.

knocking out anti-discrimination.
SCOTUS has held that employees subject to mandatory
arbitration that doesn't stop the EEOC post judgment and doesn't
stop them from seeking relief. what it does is it stops them from
participating in later claims. so if you want EEOC protection, you
don't have to file. but you should if you want to leave them free to
work with you!

if age discrimination claims are arbitrable, then title 7 discrimination
laws are arbitrable. only the 9th circuit takes issue with, and relies on
some statutory language to take exception.

arbitrator must be trained in the law, must be written (but not necessarily
reasoned), neutrality, and a joint set of principals (due process protocol)
including provisions like
- can't be anything that limits remedy