In this seminar, we will look at Arbitration as a method for resolving commercial disputes--disputes arising out of both domestic, and international transactions.
In international commercial contracts, arbitration clauses "not only predominate but are nowadays almost universal" and are "virtually taken for granted." There are in fact few---or no---practical, satisfactory substitutes for private justice in the resolution of international disputes. Arbitration has also traditionally been the standard method of dispute resolution in many domestic industries such as construction, insurance, and textiles.
In addition, decisions of the Supreme Court over the last fifteen years or so have given impetus and support to the use of arbitration in many other areas--- notably securities disputes, antitrust, intellectual property, banking, and other commercial contracts disputes. The growing use of arbitration in employment and consumer contracts--entrusting to private arbitrators not only questions of contractual interpretation, but questions of statutory rights arising out of antidiscrimination and civil rights legislation and consumer protection legislation---has recently been drawing considerable attention and criticism. And of course, arbitration is used in professional baseball to settle salary disputes between players and major league teams.
In this seminar, we will be looking at both the law and the practice of commercial arbitration. During the first few weeks, as background, there will be reading and discussion that will touch on the following areas: a) the law of commercial arbitration: e.g., federal and state status favoring arbitration, international treaties, and court review of arbitration awards; 2) settling up an arbitration e.g., choosing the arbitrators, and the various arbitration bodies like the International Chamber of Commerce and the American Arbitration Association; c) drafting arbitration clauses, and planning to provide for unforeseen events--what rules should govern the arbitration?; d) the conduct of an arbitration--how are a lawyer's skills in arbitration different from litigation skills?
Thereafter, each student will write a paper on at topic suggested by the earlier classes. This could be either a research paper in traditional form, or an empirical paper focusing on actual dispute resolution practice. This will therefore be a writing seminar. There are no prerequisites; on the other hand, the seminar is open to students who have taken courses such as ADR or International Arbitration, and who may want to do more advanced work in the form of a paper.