In this seminar, we will look at Arbitration as a method for resolving commercial disputes--both domestic disputes and disputes arising out of international transactions. In international commercial contracts, arbitration clauses "not only predominate but are nowadays almost universal" and are "virtually taken for granted." (Kerr, International Arbitration v. Litigation,  J. Bus. Law 164). So arbitration is routinely used not only to settle commercial disputes between private parties (in sales, licensing, infrastructure, and energy disputes), but also, increasingly, to settle investment disputes between investors and developing capital-importing states. Arbitration has also traditionally been the standard method of dispute resolution in many domestic industries such as insurance, construction and textiles.
In addition, decisions of the Supreme Court over the last ten years or so have given impetus and support to the use of arbitration in many other areas-- notably securities disputes, insurance, banking, and franchising and other commercial contracts disputes. States have been experimenting with arbitration as a method of handling many kinds of "consumer" disputes--notably, disputes between attorneys and clients over fees, and disputes involving automobile warranties. The growing use of arbitration in employment contracts--entrusting to arbitrators the resolution of Title VII claims for racial and sexual discrimination--has been drawing increasing attention and criticism. And of course, arbitration is used both internationally (e.g., the Olympics) and domestically (e.g., in professional baseball to settle salary disputes between players and major league teams) in the resolution of sports-related disputes.
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 statutes favoring arbitration, international treaties, and court review of arbitration awards; b) setting 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 a 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 be a writing seminar. There are no prerequisites
3:45 - 5:35 pm
Pass/Fail Not Allowed
- Alan Scott Rau
University Casebook Series
ISBN: ISBN-13: 978-159941