Arbitral Power and the Limits of Contract: The New Trilogy

International organizations — Personality — Concept of international legal personality — Organization's legal status not dependent upon law of State in which it has its seat — Limited nature of personality — Whether member States of organization liable for obligations incurred by organization — Constituent instruments of organization — Inference to be drawn from silence of constituent instruments regarding liability of members — Arbitration clause in contract concluded by organization — Whether binding upon member States State immunity — Jurisdictional immunity — Arbitration proceedings — Proceedings instituted against member State in respect of obligations of international organization — Whether State immune — Whether constitution of organization amounting to waiver of immunity — The law of Switzerland

Over the past fifteen to twenty years, businesses dramatically increased the use of arbitration clauses in contracts with consumers. Although commentators criticize the use of arbitration to resolve consumer disputes because arbitration lacks the due process protections inherent in traditional litigation, efforts to regulate or eliminate the use of arbitration in this context have failed miserably. This failure is due in large part to the Supreme Court’s embrace of arbitration and the corresponding lack of federal legislative interest in addressing this issue. The Supreme Court’s arbitration jurisprudence, particularly as it applies to consumer disputes, is the surest example of the “federalization” of an area of law that federalism principles dictate traditionally belong to the states. Interpreting the Federal Arbitration Act (FAA), the Court routinely applies a preemption doctrine that effectively precludes states from regulating the use of arbitration to resolve consumer disputes. As a result, enforcement of state laws regulating the use of arbitration to resolve consumer disputes has become the exception rather than the rule.This Article will focus on the Supreme Court jurisprudence that led to the current situation in which state law plays a minimal role in arbitration doctrine. While state legislatures traditionally regulate contract law issues, the Supreme Court’s interpretation of the FAA has resulted in an anomalous situation in which federal law routinely trumps state laws attempting to reform arbitration. The Article will also explain how the Court’s Stolt-Nielsen (2010) and Concepcion (2011) decisions took the anti-federalism approach a step further – by permitting preemption in areas the FAA does not address. This expansion of the preemption doctrine further undermines the states’ ability to substantively regulate arbitration by defining arbitration in a very specific way and then declaring preempted any regulation or decision that is not consistent with the definition. Moreover, this expansion, together with Congress’ lack of interest in regulating arbitration, makes it quite likely that private dispute resolution providers will be the only institutions able to reform the arbitration process. Recognizing that arbitration law is largely federalized, this Article will then identify a number of possible reforms private dispute resolution providers could implement and review one of the more promising avenues of reform – arbitrator opinion-writing – in greater depth. This reform would have a number of beneficial effects. It would provide transparency in the arbitration process, address problems perceived to exist in the arbitrator selection process, make clear whether the parties received due process during the arbitration, and ensure that awards are carefully considered and evidence properly balanced.

Arbitration has a noble lineage that stretches back into time. It has evolved from a simple attempt to resolve disputes in the presence of a local authority to a more technical presentation before an independent arbiter. In South Africa, arbitrations have statutory recognition. This article focuses on an arbitration clause that is embedded in a substantive agreement where the agreement was induced by fraudulent misrepresentation by a party to the agreement. The general principles of the law of contract would dictate that fraud makes the contract voidable at the instance of the innocent party. But our courts have equivocated in deciding whether the tainted contract also besmirches the arbitration clause. While earlier decisions confirmed the autonomy of the arbitration clause, two judgments of the Supreme Court of Appeal (‘SCA’) in particular held that the arbitration clause foundered with the main agreement. The article argues that the SCA’s findings were misconceived and suggests that the SCA’s reluctance to allow arbitrators to decide on the validity of an arbitration clause in a contract instigated by fraud is incorrect. It is argued that consonant with international practice, an arbitration clause should be considered a clause separate from the main agreement that will not be affected by the invalidity of the main agreement. A subsequent SCA decision recognised the primacy of an arbitration clause incorporated into an agreement. The article also proffers the possibility of reading into a contract a tacit term that all disputes arising from the main agreement will be arbitrated.

Federal and state trademark laws regulate concurrently: The Lanham Act does not preempt state law, and in fact many states have statutorily and/or judicially developed trademark or unfair competition laws of their own. This state of affairs, which is now well-accepted even if it has not always been uncontroversial, distinguishes trademark law from patent and copyright law, since federal patent and copyright statutes preempt state law much more broadly. The Patent Act entirely preempts state law with respect to non-secret inventions and the 1976 Copyright Act preempts state copyright law with respect to all works fixed in a tangible medium of expression.According to the common wisdom, concurrent trademark regulation derives from the historical primacy of state law, which federal law later supplemented but did not supplant entirely. John Cross, for example, argues characteristically that the Lanham Act - builds upon a foundation of state-law rights, leaving states generally free to regulate the field of trademarks. This essay evaluates that claim and its implied premise that state law has always played an important role in trademark law. As it demonstrates, proper characterization of state law‘s historical role depends in substantial part on one‘s understanding of the status of general law before the Supreme Court‘s decision in Erie Railroad Co. v. Tompkins. To illustrate, this essay describes the history of trademark and unfair competition in three periods: (1) the pre-Erie era, in which trademark and unfair competition claims were understood as distinct species of the same general legal right, both of which were substantively determined by the common law; (2) the period after Erie and straddling passage of the Lanham Act, before courts had settled on an interpretation of the statute under which claims for infringement of unregistered trademarks could be brought under §43(a); and (3) the modern era, in which the Supreme Court and Congress have accepted and cemented that interpretation, making it possible to bring most trademark and unfair competition claims under the Lanham Act. It argues that, while state law has technically played a role in all three periods, it has never really played a significant substantive role, except in some cases in the modern era to broaden the scope of rights beyond the federal statute. In fact, the persistent sense that federal and state law regulate concurrently has masked a significant federalization of trademark and unfair competition law over the last forty to fifty years. The reasons for that federalization deserve some scrutiny. If those reasons are persuasive, then we should question any continuing role for state trademark law.

Independent Review Trumps ERISA Law, High Court Rules

This article maps the future of commercial arbitration. With its decision in the Pechstein case, the European Court of Human Rights sanctioned the Swiss Federal Supreme Court for its rather generous approach towards the Court of Arbitration for Sport and imposed human rights restrictions on arbitration proceedings. The major upheaval is that Article 6 of the European Convention of Human Rights applies to ‘involuntary’ arbitrations with full force—including the right to a public hearing. Moreover, the concept of an involuntary arbitration agreement has not remained an oxymoron, as the court ruled that the agreements athletes must sign for their participation in sports competitions are to be classified as heteronomous. Building on this jurisprudence, the German Federal Constitutional Court held that even a serious imbalance of bargaining power may render arbitration agreements ‘involuntary’. Where does this case law leave commercial arbitration? One natural object of investigation is arbitration clauses in contracts that one party presents to the other on a take-it-or-leave-it basis; another is clauses included in the terms and conditions of undertakings that dominate the respective market in the sense of competition law. If such clauses were deemed to be heteronomous for the party on which they are imposed, arbitral tribunals would have to hold their oral hearings in public. Arguably, this would mean the end of commercial arbitration ‘as we know it’.

This paper proposes a review of the American literature, as well as the main rulings of Supreme Court of United States, aiming to map the pros and cons of inserting a mandatory pre-dispute arbitration clause in contracts between investors and brokerage/advisory firms that trade on the securities market. The study discusses some proposals to banish this sort of clause and some ideas to reach a middle ground solution.

This paper examines the problem of statutory foreign affairs preemption. There are two related interpretive issues. One concerns the proper interpretive default presumption. Should preemption analysis indulge a presumption in favor of the federal government's strong national interest in conducting foreign affairs? Should it instead be biased to protect traditional state prerogatives? Or should no presumption attach in either direction? I argue that neither an interpretive canon favoring federal foreign affairs interests, nor one favoring state interests, is warranted in this context. Considered separately, each canon rests on implausible institutional and empirical assumptions. When a foreign relations statute touches on traditional state prerogatives, both canons are implicated, and both lose coherence. The prudent course is for courts to apply ordinary principles of preemption without any presumption in favor of state or federal law, even when they think the statute concerns foreign affairs. Of course, courts have an array of ordinary preemption doctrines at their disposal even after they have resolved the default presumption issue. The second issue, therefore, is: Which preemption doctrine(s) should they apply in the foreign relations context? When a case involves a state law that appears to implicate foreign relations, options for preemption include express preemption, conflict preemption, obstacle preemption, field preemption, dormant commerce clause preemption, dormant foreign affairs preemption, and the federal common law of foreign relations. These doctrines can be compared along two dimensions: (a) the degree to which the political branches have spoken to the preemption issue, and (b) the extent to which preemption doctrines require courts to engage in an independent assessment of the state law's effect on U.S. foreign relations. I argue that, for reasons of institutional competence and political process, and because of the waning of the domestic-foreign affairs distinction, courts should engage in minimalist statutory foreign affairs preemption. They should eschew independent judicial foreign policy analysis, and preempt state law only on the basis of policy choices traceable to the political branches in enacted law. This, I argue in the last Section of the paper, is precisely what the Supreme Court did in its recent decision in Crosby v. National Foreign Trade Council, 120 S Ct 2298 (2000).

This paper examines the problem of statutory foreign affairs preemption. There are two related interpretive issues. One concerns the proper interpretive default presumption. Should preemption analysis indulge a presumption in favor of the federal government's strong national interest in conducting foreign affairs? Should it instead be biased to protect traditional state prerogatives? Or should no presumption attach in either direction? I argue that neither an interpretive canon favoring federal foreign affairs interests, nor one favoring state interests, is warranted in this context. Considered separately, each canon rests on implausible institutional and empirical assumptions. When a foreign relations statute touches on traditional state prerogatives, both canons are implicated, and both lose coherence. The prudent course is for courts to apply ordinary principles of preemption without any presumption in favor of state or federal law, even when they think the statute concerns foreign affairs. Of course, courts have an array of ordinary preemption doctrines at their disposal even after they have resolved the default presumption issue. The second issue, therefore, is: Which preemption doctrine(s) should they apply in the foreign relations context? When a case involves a state law that appears to implicate foreign relations, options for preemption include express preemption, conflict preemption, obstacle preemption, field preemption, dormant commerce clause preemption, dormant foreign affairs preemption, and the federal common law of foreign relations. These doctrines can be compared along two dimensions: (a) the degree to which the political branches have spoken to the preemption issue, and (b) the extent to which preemption doctrines require courts to engage in an independent assessment of the state law's effect on U.S. foreign relations. I argue that, for reasons of institutional competence and political process, and because of the waning of the domestic-foreign affairs distinction, courts should engage in minimalist statutory foreign affairs preemption. They should eschew independent judicial foreign policy analysis, and preempt state law only on the basis of policy choices traceable to the political branches in enacted law. This, I argue in the last Section of the paper, is precisely what the Supreme Court did in its recent decision in Crosby v. National Foreign Trade Council, 120 S Ct 2298 (2000).

State Responsibility — For Breaches of Contractual Obligations — Contract between State and Foreign Company — Obligation of State to Fulfil Contract in Good Faith — Effect of Devaluation of Currency.State Responsibility — Claims — State Control Over Private Claims — Effect of Compromise of International Claims by State of Which Claimant is a National.Arbitration — Award — Appeal from, to Court of Third State in Which Award Pronounced.Conciliation — Award by Arbitrators as “amiables compositeurs”.Arbitration — In General — Arbitration Clause in Contract between Commercial Firm and State — Binding Force on Arbitrators of Exchange of Letters between that State and Government of the Firm-Effect of Such Exchange of Letters — Effect of Devaluation of Currency — Award as “amiables compositeurs” — Appointment of Arbitrator in Default by Court of Third State.

Arbitration — Stay of proceedings — Convention on the Settlement of Disputes between States and Nationals of Other States — Jurisdiction of domestic courts — Arbitration clause in contract between Government and company — Reference of matter to International Centre for the Settlement of Investment Disputes — Whether domestic proceedings relate to matter over which proceedings brought pursuant to Convention — Dispute over effect of subsequently enacted legislation — Whether dispute arising under the terms of the agreement — Whether Court having residual discretion to take jurisdiction over matter — Whether Government bound by agreement to international arbitration — Arbitration (International Investment Disputes) Act 1979 — The law of New Zealand

572State immunity — State entity — Enforcement by third party of arbitration clause in contract — Whether State-owned corporation in early stages of privatisation entitled to immunity — Whether immunity implicitly waived by conclusion of contract containing arbitration clause — Convention on the Recognition and Enforcement of Foreign Arbitral Awards — United States Foreign Sovereign Immunities Act 1976 — The law of the United States

IN THE Sixth Goff Lecture,1 Neil Kaplan referred to Article II(2) of the New York Convention,2 that an ‘agreement in writing’ for arbitration shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.3 This definition creates difficulties for arbitration clauses in contracts evidenced by bills of lading, sales confirmations, and charterparty recaps, which are binding if signed by only one party, or unsigned and sent by one party to the other who does not reply, or issued by a broker and sent to both parties who do not reply. Similar problems are created for contracts which include standard written terms with an arbitration clause only by reference, especially in salvage cases, where oral contracts are made over the radio telephone between tug and stricken ship, on the basis of a Lloyd's Open Form. He concluded (and I agree with him) that it was an ‘absurd result’ if a contract for the sale of goods or services would generally be enforced, but the clause in it …

Employer actions to resolve disputes with employees by requiring an agreement to arbitrate as a condition of employment has continued to increase at a rapid pace over the last twenty years. The Supreme Court’s wholesale endorsement of these arbitration agreements under the Federal Arbitration Act (FAA) as a process to resolve statutory employment claims has left employees with very few legal challenges to this so-called "forced" or "mandatory" arbitration. The only significant Supreme Court case to rebuff the employer’s attempt to compel arbitration of a statutory employment dispute, EEOC v. Waffle House, occurred in 2002. In Waffle House, the Court emphasized the importance of the EEOC as an administrative agency charged with enforcing Title VII and acknowledged the significance of allowing the EEOC to pursue court actions to vindicate the public interest in eradicating employment discrimination despite the presence of an agreement to arbitrate between the employee and the employer. From reviewing lower court decisions since Waffle House, this paper identifies a number of cases where employers acted to compel arbitration while a charge was still pending with the EEOC. This paper explains how these employer actions to compel arbitration attempted to circumvent the Supreme Court’s holding in Waffle House by trying to force employees into a final arbitration decision that could operate as res judicata and a complete bar to recovery in any later court action that the EEOC might pursue. The paper also asserts that these efforts to compel arbitration while an EEOC charge is still pending establish a viable claim for retaliation that an employee may pursue under Title VII. When an unfair labor practice charge is still pending with the National Labor Relations Board (NLRB), employer attempts to compel arbitration also operate as illegal retaliation under the National Labor Relations Act (NLRA). Retaliatory employment arbitration occurs whenever an employer attempts to force arbitration as a response to an employee’s agency charge while the matter charged is still pending with that agency. The action to compel arbitration would deter a reasonable employee from filing a charge with the EEOC if the employee knows that an immediate result from having filed the charge will be an attempt to compel arbitration and prevent the employee from receiving any of the benefits of having the EEOC pursue the matter. Likewise, when an employee files an unfair labor practice charge with the NLRB, an employer’s attempt to compel arbitration creates a chilling effect that dissuades employees from filing charges as a form of retaliation under the NLRA.The paper examines and defines the parameters of retaliatory employment arbitration as it reveals one of the few claims that employees may still have left to challenge forced or mandatory arbitration agreements.

This revised text provides a practical guide to the law relating to all aspects of costs in arbitration proceedings. The Arbitration Act 1996, has made significant changes to the law on arbitration costs. These have, among other things, made arbitrators responsible for the cost-effective management of cases, and given them new powers to help them achieve this. In its second edition, "Costs in Arbitration Proceedings" has been updated to include sections on: agreements as to costs; the arbitrator's power to limit costs; and forms and precedents. It sets out the law of costs for the parties and of the parties, the arbitrators' fees, taxation of costs, and security for costs, costs implications of offers of settlement and application to the court in repect of costs. It is suitable for professional arbitration lawyers and also for the new or lay arbitrator.