commercial arbitration class 10

under a broad formulation, any issue of contract construction is arbitratble. any dispute as to conduct undertaken with respect to performance, un/lawful not/permitted, is embraced. so you have to go far to contemplate something that is not within the clause, such as a merger agreeement where the CEO of one company didn't drop off the other's laundry.

sometimes, it's hard to deal with arbitrability under a broad clause. there's a temptation to get into issues of contract interpretation and construction, such as the claim in the nationwide insurance case, where the court has to decide things on the merits, because either the contract doesn't/provides for the claim in which case it is/not arbitrable. but the court doesn't care about whether or not the issue is meritorious or that there's a claim of action. 

however, notice that even thought his is hte most practial solution, this is ianother reason that arbitrators can run amuck cause they can decide cases on things that would have been dismissed for lack of pleading a case/merits. tribunals are very careful about pre-trial motions. FINRA has a rule that arbitrator cannot throw a case out unless the wrong individual was sued!!

despite the test for a broad clause, the minute the parties attempt something like in choice hotels, to have apparently made an attempt to segregate out in the arbitration clause what is/not arbitrable, we know that broad clause approach is in conflict with the principle that parties cannot be forced to arbitrate.

how does this work out in practice?
1. maybe the clause only segregates out one item for arbitration because it would be complicated for a court (like a complicated accounting issue); the court will resort to purpose construction -- "is this the type of thing that an arbitrator (ie expert) was wanted for by the parties?"
2. maybe the court will resort to horsesense and a dictionary, like in choice hotels (difference between a debt and claim)
3.

denihan and denihan
shareholder's agreement: usually used in small corps, where there need to be agreements to thingst hat aren't necessarily covered under genral corp provisions. include provisions like first refusal, when/where money is distributed, "super majority provisions" to protect the minority shareholders. they also typically cover sale and/or assets of the company. and family corps make family members hate each other.
para 4 of the shareholder agreement between the brothers is supposed to protect the minor shareholder: can't sell or merge unless he's protected his full 25% interest in the company.
reasonable relationship test.

teradyne.
many circuits grant relief, but some don't. so if you're in this jurisdiction, even more reason to put something in the arb clause. you'll also often see getting an injunction in aid of the arbitration clause, which will overcome judicial reluctance.