Arbitration Contracts Research Articles

An Analytical Look at the Importance of a Legal Organization for the International Electronic Commerce Arbitration Body: Comparative Study between a Draft Law on Arbitration in the UAE and the French and English Laws

This study provides theoretical and practical viewpoints regarding the law required to be applied to proceedings in the field of international commercial arbitration. The Emirati arbitration has been compared under UAE, French, and English laws. The regulations, rules and procedures of international arbitration bodies, institutions and chambers have also been undertaken in this study. This study presents the subject that was not covered from theoretical and practical viewpoint. By discussing the international electronic commerce arbitration body, this study provides insights for researchers, arbitrators, lawyers, judges with the emphasis given to all the English and French Arbitration Act along with the rules and regulations of national and international arbitration institutions and chambers. Similarly, the importance of this issue lies in the importance of arbitration as an alternative means to litigation to settle disputes. When the role of the arbitration board arises from the agreement of the parties to the arbitration dispute and from what is stated in the arbitration contract or arbitration document in the rules that obliges the parties to the arbitration to sign an arbitration document at the beginning of the proceedings. Therefore, proceedings begin because a party to the arbitration dispute expressed its desire to settle the dispute by arbitration, i.e. from the time of the request for arbitration until the award is issued in its final form.

Private International Law Aspects of Arbitrator Liability: A European Perspective Post-Brexit

This article investigates how various private international law (PIL) instruments relevant in the European context, post-Brexit, deal with questions of jurisdiction, applicable substantive law, and recognition and enforcement pertaining to the contractual liability of arbitrators. Based on an analysis of applicable European Union (EU) case law and the drafting history of, amongst others, the Brussels I (Recast) Regulation and its predecessors, it submits that that the exclusions included in such Regulation with regard to arbitration proceedings do not apply to the Arbitration Contract between the Parties and the Arbitrator or Arbitrators. Second, we submit that the law applicable to a claim for breach of contract by an Arbitrator must be found through the application of Rome I. Rome I provides that the law of the country where the Arbitrator that is alleged to be liable vis-à-vis (one of) the Parties has his or her habitual residence. With respect to enforceability of court judgments pertaining to arbitrator liability, we discuss and assess the Pandora’s Box that Brexit appears to have opened. This assessment leads us to conclude that, whilst the framework put in place by Brussels I (Recast) and the Lugano Convention remains largely in place, on the departure of the United Kingdom from the existing legal frameworks, enforcement and recognition of court judgments between the United Kingdom and the EU will, in the absence of a jurisdiction clause, largely shift to provisions of national law and/or bilateral treaties. Arbitration, International Arbitration, Brussels I (Recast), Rome I, Hague Convention, Lugano Convention, Brexit, Private International Law, Arbitrator, Liability

Arbitration and Conciliation Act, 1996 - An Overview

The significant increase in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. As a result, alternative dispute resolution mechanisms including arbitration have become more crucial for businesses operating in India as well as those during businesses with Indian firms. Keeping in mind the broader exploration between the quality of legal performance and economic growth, this paper is an attempt to critically evaluate arbitration in India as a legal institution. In this paper, the prime position in dispute resolution is discussed. This paper examines and evaluates the International Arbitration Regime in India under 1940 and 1996 Acts, and also discusses the main concepts like arbitrator, arbitration agreement, arbitral awards, foreign awards, public policy etc. This paper also deals with recognition and enforcement of the award and identifies the Indian regime governing the domestic, and International Commercial Arbitration. In International commercial arbitration contracts are frequently applied ADR techniques, especially arbitration is seen as a way out arbitration as a private, independent, and neutral system, time and cost benefits that are felt to be the hallmarks of the arbitration. Arbitration is increasingly becoming popular within the parties to settle their international as well as domestic commercial disputes.

Smart Contracts & International Arbitration

The Increasing Growth of Conclusion of Smart Contracts on Ethereum raises numerous intriguing Legal Questions in respect of such Smart Contracts. The latter could be categorized into two Main Categories: (I) Weak Smart Contracts & (II) Strong Smart Contracts. Weak Smart Contracts are Smart Contracts which are Revocable or Relatively Irrevocable. On the other hand, Strong Smart Contracts are Smart Contracts which are Absolutely Irrevocable. Smart Contracts on Blockchains (i.e. Ethereum) usually take the form of Strong Smart Contracts. In this regard, this paper will focus solely on Strong Smart Contracts. First, we need to figure out whether there are Absolutely Irrevocable Agreements under Contract Law. If yes, then we need to explore how the National Courts and the Arbitral Tribunals have dealt with such Contracts in Practice. Second, most of the disputes that would arise out of Strong Smart Contracts would be dealing with cross-border transactions, and therefore arbitration would be normally the optimal dispute resolution mechanism for these disputes. Therefore, we need to determine the Legal Issues associated with the Arbitration of Disputes arising out of or in relation to Strong Smart Contracts. Precisely, we need to define the Safeguards that must be developed to ensure the Recognition and Enforcement of Arbitral Awards for these Disputes on an International Level under the New York Convention. Third, Arbitration itself could take the form of a Strong Smart Contract. Thus, we have to consider whether Strong Smart Arbitration Contracts are legally viable in the first place. Specifically, whether the Absolute Irrevocability of such Strong Smart Arbitration Contracts would constitute an Obstacle to the Recognition & Enforcement of such Agreements before the National Courts. Finally, we could lend our help to the Tech Community through 3 main efforts: (1) Survey the Current Initiatives proposed in the White Papers prepared by the Tech Community; (2) Assess how far the Tech Community is taking into consideration all the Potential Legal Dilemmas associated with Smart Contracts' Dispute Resolution & (3) Prescribe Possible Legal Solutions that would also make sense from in the eyes of the Tech Community.

Arbitration Clauses: The Louisiana Supreme Courtts Flawed Decision in Duhon v. Activelaf, LLC. And Why the Doctrine of Unconscionability Should Be Adopted in Louisiana

Louisiana should give credit where credit is due and recognize the doctrine of unconscionability. Louisiana is the only civil law jurisdiction in the United States. In order to preserve its unique heritage, Louisiana has been reluctant to adopt common law concepts. Because of this reluctance, some beneficial concepts have been rejected or overlooked, such as the doctrine of unconscionability. Common law states use the doctrine of unconscionability to analyze contracts of adhesion, or determine the enforceability of arbitration clauses. Louisiana, on the other hand, utilizes a four-factor test outlined in Aguillard v. Auction Management Corp. The four factors are: (1) the physical characteristics of the arbitration clause, (2) the distinguished features of the arbitration clause, (3) the mutuality of the arbitration clause, and (4) the relative bargaining strength of the parties. The Louisiana Supreme Court used these factors in its decision of Duhon v. Activelaf, LLC. The court failed to use all of the factors and conducted a faulty analysis. This Article discusses how an analysis of all four leads to the conclusion that the disputed arbitration contract is not adhesionary and is valid. This Article also discusses how the doctrine of unconscionability is quite compatible with the Louisiana Civil Code. The doctrine helps fill in the gaps of existing law, which is inadequate when dealing with mass, standard-form contracting.

After Atalese, New Jersey Opinions Are Limiting Enforcement of Arbitration Provisions

Arbitration contract enforcement has been in flux in New Jersey since the state's Supreme Court passed down Atalese v. U.S. Legal Services LP, 219 N.J. 430, 99 A.3d 306 (2014), cert. denied, 135 S. Ct. 2804, 192 L. Ed. 2d 847 (2015)(available at http://bit.ly/ZtfbW4).

Comparative Study of International Commercial Arbitration and International Law in Iran

Arbitration is one of the most important solutions to end enmity and replace judicial inquest. As international trading is extended, referring to judgment to solve the conflicts caused by commercial contracts has been rapidly rising which is a result of judgment benefits over justice authorities. Fastness and efficiency, law inquest cost, compromise nature of selecting the referees, and professional selection are among the most evident specifications of arbitration. Furthermore, Iran’s involvement in the most significant judgment case of the last century i.e. the lawsuits filed between the Islamic Republic of Iran the United States of America after the victory of the revolution would double the essentiality of knowing this organization. Judgment may be either individual or organic (permanent) and also the number of referees needs to be one or three. The most important issue in the judge’s inquest is to follow two factors including independence and impartiality from the beginning until the end of the inquest process. Violating these characteristics or the lack of one of both or other descriptions predicted in the arbitration contract would result in its violation by one side of the conflict or both of them. In the present paper, a comparison is conducted between the commonalty and distinction of Iran’s international commercial arbitration in 1376 and international law.

The separability of arbitration agreement in the Emirati law

Arbitration nowadays is widely accepted as a main dispute resolution means. Parties, in more than one case, refer to arbitration to have their contractual disputes resolved. Accordingly, in such cases, parties conclude two contracts; a substantive contract regulating their substantive rights, and an arbitration contract. The latter contract assigns arbitration as a means to resolve the disputes resulting from the former contract. The two contracts are attached to each other, since arbitration is adopted to resolve the disputes resulting from the substantive contract. However, a logical question is posed to the effect that ‘how separable is the arbitration contract from the substantive contract?’ This study is set to address and assess this issue in the Emirati law. It is found that the Emirati courts reached more than one view on this regard. Accordingly, this study recommends that the Emirati legislator needs to readdress this issue in order to avoid futuristic conflicts concerning this issue.

The Nature of Arbitration Agreement

Abstract The base and the root cause of the institution of arbitration in the international and domestic arenas stemmed from the existence of vacuum in the normal and public procedure in the formal existence that led to slow investigation and spending of costs for the state and the two sides of the argument. Thus, in most countries in the world, detailed regulations were approved regarding various types of arbitration and its conditions and effects. In the domestic arena, arbitration rules with a focus on civil law are considered to be among non-formal contracts and in the international arena, Iranian Law, in line with International Arbitration Law, has considered the arbitration contract to be among formal contracts and emphasizes the necessity of the written arbitration contract; furthermore, in domestic regulations, arbitration agreement is considered as subject to the main contract and in Iranian Law on International Arbitration, autonomy of the arbitration contract from the main contract has been recognized

INCAPACITY OF PARTIES AND INVALIDITY OF ARBITRATION AGREEMENT AS GROUNDS FOR REFUSING RECOGNITION AND ENFORCEMENT IN KUWAIT

Arbitration agreement is one of the widely discussed laws of contract in law. Each and every country has specific rules and regulation which government had rules which govern the arbitration contract between the citizens and between the nation and other nations. Kuwait is one of such countries and it has faces a lot of challenges what it comes to arbitration law and sharia law until the time when New York Convention was incorporated and ratified in the process of administering justice in the Kuwait. The enforcement of the awards specifically has brought challenges until the NYC provided the grounds under which the enforcement of the awards may be rejected. The main objective of this paper is to discuss whether Incapacity of Parties and Invalidity of Arbitration Agreement as sufficient Grounds for Refusing Recognition and Enforcement in Kuwait. The paper is divided into five sections with first section giving introduction and definition of what is arbitration, the second part discusses the finality of the awards, thirdly it discuses the finality of the awards, fourthly the paper discuses the rejection of enforcement due to invalidity and incapacity and lastly the paper discusses the position of NYC position on the sufficiency of invalidity and incapacity as enough proof for non-enforcement and recognition of arbitration agreement as a result of invalidity and incapacity be for concludes with conclusion.

International arbitration contract principles: analysis of Middle East perceptions

PurposeThe purpose of this paper is to examine the main contract principles which govern the international arbitration contract with special emphasis to examine contract principle found of the Middle East, how international principles of contract are perceived in the region, and whether there are any dominant contract principles.Design/methodology/approachA general exploratory research procedure used to give a better grasp of various aspects of socio‐legal approaches. The paper seeks to create knowledge that can be used to retrieve some pressing social and organisational understanding in the said region. The first part of the paper examines the role of ethics and tradition in understanding Middle Eastern contract principles. The second part examines the impact of Islamic Law on commercial contract principles. The third section analyses the regional perception of international contract principles. Finally, the paper addresses some contemporary issues of international contracts in the Middle East.FindingsThe paper showed that the legal perceptions of international contract principles reflect regional legal thinking which has been influenced by a mixed understanding of regional traditions, Islamic contract law principles as well as Western contract principles when these principles match regional legal culture. Overall, it showed that still under such mixed understanding, there are strong regional legal traditions and these are found in Islamic contract principles and affects commercial contract experiences. In general, a significant difference still exists between modern international contract principles and those in the Middle East.Practical implicationsThe paper generates a knowledge that mixed understanding in regard to international contract arbitration principles due historical and cultural reasoning. Arab States does not share common understanding of international contract principles. Thus, it is very superfluous to propose the argument that there is sole Middle Eastern regional perception which dominates every Arab State. Therefore, special understandings and considerations should be given to every international arbitration contract from certain Arab State entity to another.Originality/valueThe paper provides a clear understanding of the guidelines for international commercial arbitration contract in the Middle East. Legal culture should be taken into consideration if a successful contract implementation has to be achieved.

Do Partisan Elections of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations

Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights.I examine whether partisan judicial elections affect court review of arbitrator rulings (called awards) in employment disputes. For this study, I added a new variable – method for selecting judges – to my database of 223 state court rulings from 1975-2008.I relate this empirical research to a strategic model of corporate avoidance of liability in employment disputes. Some employers avoid lawsuits by requiring employment arbitration, and implementing favorable arbitration rules. When awards are appealed to court, employers continue to influence the outcome by designating the court for reviewing an award. This model suggests that some employers would expand their influence by strategically supporting judges who run for office in political campaigns.I found that in state trial courts where an award was challenged, employees won only 32.1% of cases before party-affiliated judges. But in states where judges were appointed or elected in non-partisan races, employees prevailed in 52.7% of the cases.The partisan election effect was not observed, however, in appellate cases. Employees won 43.2% of cases before party-affiliated judges, and 50.0% of cases before judges who were appointed or elected in non-partisan races.My results provide preliminary and limited support for the concern that partisan judicial elections produce unequal justice for ordinary people who are not large campaign donors. But, there are important caveats. This study did not determine whether judges in these cases actually accepted campaign support from employer groups. These judges may have ruled through a more ideological prism than appointed and non-partisan judges.In the same vein, the finding of no partisan effect at the appellate level is not conclusive – and does not mean that party-affiliated appellate judges are as neutral as their appointed counterparts. Even in partisan judicial elections, it appears that only some appellate candidates raise war chests and declare campaign positions. A seemingly biased judge, such as the justice in Caperton, can be outvoted by more neutral judges on the appellate panel, thereby muffling the effect of campaign spending in partisan elections.My findings do not prove that employers seek venue before judges who receive their campaign contributions, but they offer preliminary statistical evidence that suggests that this is possible. The fact that employers can designate venue in an arbitration contract reinforces this possibility. In sum, the shocking example in Caperton, along with the preliminary data in my study, suggests that employers are able to expand the liability-avoidance model by donating to judges who would review their arbitration awards.

Agreements to Waive or to Arbitrate Legal Claims: An Economic Analysis

As arbitration agreements have grown in use, they have become controversial, with many critics describing them as a disguised form of waiver. This paper presents an economic analysis of waiver and arbitration agreements and applies this analysis to the evolving arbitration case law in the Supreme Court and elsewhere. The paper examines the conditions under which parties have an incentive to enter into these types of agreement, and their welfare implications. It shows that, if parties are well informed, they will enter into waiver agreements when and only when litigation is socially undesirable, in the sense that the deterrence benefits provided by the threat of litigation fall short of litigation costs. Under similar conditions, they will enter into arbitration agreements when and only when the margin between deterrence benefits and dispute resolution costs is larger under the arbitral regime. These results suggest a presumption in favor of enforcing these agreements, especially where parties are informed. Exceptions to this presumption largely should be based on informational disparities. The theory developed in the paper is used to critically examine arguments against arbitration contracts, such as the claim that these agreements inhibit the development of new law, and to suggest a positive theory of the case law. Although the focus here is on waiver and arbitration agreements, the analysis has broader implications for the literature on the social desirability of litigation. The key implication is that the answer to socially undesirable litigation is not a wholesale reduction in the amount of litigation or the number of lawyers, but an expansion of markets in waiver and arbitration agreements.

Compulsory arbitration of non-union employment disputes

In response to costly legal battles and proliferating causes of action for alleged employer misconduct, employers in the United States are beginning to require their employees to sign contracts that mandate binding arbitration of any employment dispute. These arbitration contracts have been the focus of much litigation because they compel employees to waive their right to sue their employers for employment discrimination, tortious conduct, and any other dispute that arises out of the employment relation. In Gilmer v. Interstate / Johnson Lane Corp. (1991), the U.S. Supreme Court cracked opened the door to the legitimacy of these contracts by sanctioning compulsory arbitration of an age discrimination claim. In the ensuing years, lower courts nationwide, except in the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee), have interpreted Gilmer to mean that employees can be required to arbitrate almost any employee rights question, provided that certain procedural guidelines are followed. This article presents an overview of the law and the literature in this area to assist human resource managers in designing a compulsory arbitration policy that will both survive legal scrutiny and operate to the mutual advantage of both employer and employee.

Konstituisanje međunarodne trgovinske arbitraže

The technique of constitution of the arbitration is the major subject which is set in conflict which are solved by the arbitration. If its not, on the first place, precisely defined, big problems which can hardly be solved will occur and thats why is necessary to define this subject in arbitration contract.

Major League Baseball Salaries: The impacts of Arbitration and Free Agency

Earnings equations are estimated for major league baseball hitters and pitchers using salary data for the 1989 season. The results indicate that final-offer salary arbitration and long-term contracts have a large positive impact on salaries. The impact of free-agency eligibility is also positive, but smaller man arbitration eligibility. This implies that some players have used the arbitration process to extract above-market salaries. Therefore it is concluded that it would be in the interest of the owners to replace arbitration with earlier eligibility for free agency.

Arbitration—Contract Alleged Void—Jurisdiction of Arbitrator

Arbitration—Contract Alleged Void—Jurisdiction of Arbitrator

Arbitration and Award. Arbitration Contracts and Submission. Federal Arbitration Act Does Not Give Federal Court Power to Enforce Provision in Collective-Bargaining Agreement to Arbitrate Terms of New Contract

Arbitration and Award. Arbitration Contracts and Submission. Federal Arbitration Act Does Not Give Federal Court Power to Enforce Provision in Collective-Bargaining Agreement to Arbitrate Terms of New Contract

Arbitration and Award. Arbitration Contracts and Submission. Arbitration Available Where Statute of Limitations Has Run on Underlying Claim but Not on Refusal to Arbitrate

Arbitration and Award. Arbitration Contracts and Submission. Arbitration Available Where Statute of Limitations Has Run on Underlying Claim but Not on Refusal to Arbitrate

Judicial Exercise of Equitable Discretion in Enforcement of Arbitration Contracts

Judicial Exercise of Equitable Discretion in Enforcement of Arbitration Contracts