This article discusses the current circuit split over the continued validity of manifest disregard of the law (“manifest disregard”) as a nonstatutory ground for vacatur of arbitration awards under the Federal Arbitration Act (“FAA”). Today, as commercial parties decide whether to include arbitration agreements in their business contracts, they weigh the risks of proceeding to arbitration versus litigation to resolve their disputes. This topic is especially pertinent in light of the current economic climate. Dicta from the U.S. Supreme Court’s decision in Hall Street Associates, L.L.C. v. Mattel, Inc. called into question the continued validity of nonstatutory grounds for vacatur. The circuit courts have severely split on the question of one ground in particular: manifest disregard. Although seemingly ripe for review, the Supreme Court has appeared reluctant to resolve the issue, even side-stepping the Second Circuit’s opinion in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. and ruling on other grounds. Rather than opining on which side of the split should prevail, this article posits first that manifest disregard should never have been a valid ground for vacatur under the FAA. Next, the article takes a historical perspective that shows the FAA does not allow courts to look at the merits of an arbitration award. Instead, courts should look only to the award itself, determining its enforceability exclusive of the merits of the arbitrator’s or tribunal’s decision. Inquiry into the merits of the decision violates the FAA and damages arbitration’s finality and efficiency, two of the most important benefits of the arbitration bargain. Excluding the merits from judicial review conforms to FAA requirements and retains these two critical benefits. In other words, this article proposes a resolution to the circuit split that maintains the integrity of both the FAA and the arbitration process without excluding concerns surrounding a full abandonment of judicial review.
这篇文章讨论了目前巡回法院对“明显无视法律”(“明显无视”)作为根据《联邦仲裁法》(“FAA”)撤销仲裁裁决的非法定理由的持续有效性的分歧。今天，当商业当事人决定是否将仲裁协议纳入他们的商业合同时，他们会权衡通过仲裁还是诉讼来解决纠纷的风险。鉴于当前的经济形势，这一话题尤为贴切。美国最高法院在Hall Street Associates, L.L.C.诉Mattel, Inc.一案中的判决，对非法定理由的持续有效性提出了质疑。巡回法院在一个特别的理由上产生了严重分歧:明显无视。尽管审查时机似乎已经成熟，但最高法院似乎不愿解决这个问题，甚至回避第二巡回法院在斯托尔特-尼尔森公司诉动物饲料国际公司案中的意见，并以其他理由作出裁决。而不是意见的一方分裂应该占上风，这篇文章首先假设，明显的无视不应该是一个有效的理由，根据FAA。接下来，本文从历史的角度来看，FAA不允许法院查看仲裁裁决的是非曲性。相反，法院应该只考虑裁决本身，确定其可执行性，而不考虑仲裁员或仲裁庭裁决的是非曲实。调查裁决的优点违反了联邦航空局，损害了仲裁的终局性和效率，这是仲裁交易的两个最重要的好处。从司法审查中排除是非曲直符合FAA的要求，并保留了这两个关键的好处。换句话说，本文提出了一项决议，以维持联邦航空局和仲裁程序的完整性，而不排除对完全放弃司法审查的担忧。
{"title":"'Final' Awards Reconceptualized: A Proposal to Resolve the Hall Street Circuit Split","authors":"Matthew J. Brown","doi":"10.2139/ssrn.2084936","DOIUrl":"https://doi.org/10.2139/ssrn.2084936","url":null,"abstract":"This article discusses the current circuit split over the continued validity of manifest disregard of the law (“manifest disregard”) as a nonstatutory ground for vacatur of arbitration awards under the Federal Arbitration Act (“FAA”). Today, as commercial parties decide whether to include arbitration agreements in their business contracts, they weigh the risks of proceeding to arbitration versus litigation to resolve their disputes. This topic is especially pertinent in light of the current economic climate. Dicta from the U.S. Supreme Court’s decision in Hall Street Associates, L.L.C. v. Mattel, Inc. called into question the continued validity of nonstatutory grounds for vacatur. The circuit courts have severely split on the question of one ground in particular: manifest disregard. Although seemingly ripe for review, the Supreme Court has appeared reluctant to resolve the issue, even side-stepping the Second Circuit’s opinion in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. and ruling on other grounds. Rather than opining on which side of the split should prevail, this article posits first that manifest disregard should never have been a valid ground for vacatur under the FAA. Next, the article takes a historical perspective that shows the FAA does not allow courts to look at the merits of an arbitration award. Instead, courts should look only to the award itself, determining its enforceability exclusive of the merits of the arbitrator’s or tribunal’s decision. Inquiry into the merits of the decision violates the FAA and damages arbitration’s finality and efficiency, two of the most important benefits of the arbitration bargain. Excluding the merits from judicial review conforms to FAA requirements and retains these two critical benefits. In other words, this article proposes a resolution to the circuit split that maintains the integrity of both the FAA and the arbitration process without excluding concerns surrounding a full abandonment of judicial review.","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115733098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Collaborative Practice (CP) significantly changes the way that legal disputes are resolved from beginning to end. CP is a dramatic shift from the way law is generally practiced today in the United States and it has the potential to transform that practice. Cochran considers the two dramatic changes that CP brings to law practice: a change in the mental attitude of lawyers and clients toward the conflict and a change in lawyers’ counseling techniques. Part Two of the article defines CP and compares it to traditional negotiation-pending-litigation (NPL). Part Three considers the change in attorney and client mental attitudes wrought by CP, where both lawyers and clients take responsibility for identifying a resolution that will meet the needs of all of the parties. Part Four considers the type of client-counseling that is often generated by CP - lawyers in CP may strongly encourage clients to find a resolution that meets the needs of all of the parties. Cochran concludes with a consideration of the possible future of CP.
{"title":"Collaborative Practice’s Radical Possibilities for the Legal Profession: '[Two Lawyers and Two Clients] for the Situation'","authors":"Robert F. Cochran","doi":"10.2139/SSRN.1605322","DOIUrl":"https://doi.org/10.2139/SSRN.1605322","url":null,"abstract":"Collaborative Practice (CP) significantly changes the way that legal disputes are resolved from beginning to end. CP is a dramatic shift from the way law is generally practiced today in the United States and it has the potential to transform that practice. Cochran considers the two dramatic changes that CP brings to law practice: a change in the mental attitude of lawyers and clients toward the conflict and a change in lawyers’ counseling techniques. Part Two of the article defines CP and compares it to traditional negotiation-pending-litigation (NPL). Part Three considers the change in attorney and client mental attitudes wrought by CP, where both lawyers and clients take responsibility for identifying a resolution that will meet the needs of all of the parties. Part Four considers the type of client-counseling that is often generated by CP - lawyers in CP may strongly encourage clients to find a resolution that meets the needs of all of the parties. Cochran concludes with a consideration of the possible future of CP.","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134136420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ho'oponopono is a traditional Hawaiian dispute resolution system that has recently experienced a resurgence of interest. The word ho'oponopono literally means to make right. In this system, both the offender and victim participate in a type of guided mediation along with other stakeholders in the offense. Ho'oponopono is different from typical mediations because after the session is successfully completed, the participants figuratively cut the cord of legal and psychological entanglement which binds them - in other words, the dispute is put to rest forever. When victim and offender come to a true resolution of the problem, and jointly make the decision to move forward without further conflict on the issue, true healing can occur.
{"title":"Cutting the Cord: Ho'oponopono and Hawaiian Restorative Justice in the Criminal Law Context","authors":"Andrew J. Hosmanek","doi":"10.2139/SSRN.635863","DOIUrl":"https://doi.org/10.2139/SSRN.635863","url":null,"abstract":"Ho'oponopono is a traditional Hawaiian dispute resolution system that has recently experienced a resurgence of interest. The word ho'oponopono literally means to make right. In this system, both the offender and victim participate in a type of guided mediation along with other stakeholders in the offense. Ho'oponopono is different from typical mediations because after the session is successfully completed, the participants figuratively cut the cord of legal and psychological entanglement which binds them - in other words, the dispute is put to rest forever. When victim and offender come to a true resolution of the problem, and jointly make the decision to move forward without further conflict on the issue, true healing can occur.","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124854285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of "justice." The piece explores whether certain shifts in process characteristics or the neutral's role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice.
{"title":"Images of Justice","authors":"L. Love","doi":"10.2139/SSRN.229990","DOIUrl":"https://doi.org/10.2139/SSRN.229990","url":null,"abstract":"This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of \"justice.\" The piece explores whether certain shifts in process characteristics or the neutral's role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice.","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114790032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1515/9781644692554-017
Harold I. Abramson
"Would you like to go to Delhi to train people in negotiations?" the email message inquires. "Are you kidding?" you think to yourself. "Of course, I would get to do in an exotic location what I enjoy doing at home -- helping others to resolve conflicts. And I also would meet fascinating people and tour an intriguing city and country with a local host." "YES,' you reply after working out the logistical details. Now as you begin to pack your off-the-shelf training materials, you start to wonder how you should adapt your training for this foreign location. You do not want to be accused of cultural imperialism or insensitivity. This article will explore what to do before getting on the airplane, from the point-of-view of a U.S. trainer.
{"title":"CHAPTER 13. Outward Bound to Other Cultures: Seven Guidelines for U.S. Dispute Resolution Trainers","authors":"Harold I. Abramson","doi":"10.1515/9781644692554-017","DOIUrl":"https://doi.org/10.1515/9781644692554-017","url":null,"abstract":"\"Would you like to go to Delhi to train people in negotiations?\" the email message inquires. \"Are you kidding?\" you think to yourself. \"Of course, I would get to do in an exotic location what I enjoy doing at home -- helping others to resolve conflicts. And I also would meet fascinating people and tour an intriguing city and country with a local host.\" \"YES,' you reply after working out the logistical details. Now as you begin to pack your off-the-shelf training materials, you start to wonder how you should adapt your training for this foreign location. You do not want to be accused of cultural imperialism or insensitivity. This article will explore what to do before getting on the airplane, from the point-of-view of a U.S. trainer.","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131202198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Masthead & Table of Contents","authors":"C. W. Bennett","doi":"10.15760/anthos.2015.a","DOIUrl":"https://doi.org/10.15760/anthos.2015.a","url":null,"abstract":"","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127782130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Permanent Resolution Mechanism of Cultural Property Disputes","authors":"M. Granovsky","doi":"10.2139/ssrn.1001786","DOIUrl":"https://doi.org/10.2139/ssrn.1001786","url":null,"abstract":"","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126036541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to resolve the extent to which judicial review standards are default rules under RUAA. This article argues that parties may be able to obtain court review of arbitral errors of law under RUAA by defining legal errors as beyond the scope of the arbitrators’ authority. A court then can vacate an award on the basis of legal error under the statutory ground that the arbitrators exceeded their authority. If so, then the RUAA standards for judicial review are default rules (at least in part), and parties can contract around those standards even though RUAA does not clearly so provide.
{"title":"Contracting Around RUAA: Default Rules, Mandatory Rules, and Judicial Review of Arbitral Awards","authors":"C. R. Drahozal","doi":"10.2139/SSRN.1882625","DOIUrl":"https://doi.org/10.2139/SSRN.1882625","url":null,"abstract":"By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to resolve the extent to which judicial review standards are default rules under RUAA. This article argues that parties may be able to obtain court review of arbitral errors of law under RUAA by defining legal errors as beyond the scope of the arbitrators’ authority. A court then can vacate an award on the basis of legal error under the statutory ground that the arbitrators exceeded their authority. If so, then the RUAA standards for judicial review are default rules (at least in part), and parties can contract around those standards even though RUAA does not clearly so provide.","PeriodicalId":350514,"journal":{"name":"Pepperdine Dispute Resolution Law Journal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124029709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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