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Law and Practice of Arbitration - Fifth Edition

ISBN: 978-1-937518-36-3
Author: Thomas E. Carbonneau
Page Count: 730
Published: February 2014
Media Desc: 1 Hardcover Volume. Table of Cases. Index.
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The Law and Practice of Arbitration is a comprehensive treatise about the development and practice of arbitration law in the United States. It addresses in detail the recourse to arbitration in domestic matters -- employment, labor, consumer transactions, and business -- and its use in the resolution of international commercial claims. It covers all of the major subject areas in the field and provides practical advice as well as an easy-to-read, clear discussion of the relevant case law. It represents a masterful synthesis of the entire body of arbitration law. It discusses basic concepts and doctrines, the FAA, freedom of contract in arbitration, arbitrability, the enforcement of awards, the use of arbitration in consumer and employment matters, institutional arbitration, and the drafting of arbitration agreements. It speaks of the federalization of the law and growing judicial objections to the use of adhesionary arbitration agreements in the consumer context, The volume represents the author's continuing in-depth reflection on the practical and systemic consequences of United States Supreme Court's decisional law on arbitration -- a process that is instrumental to the operation of the United States legal system as well as international business. The work continues its tradition of being the best statement on U.S. arbitration law and practice. The Law and Practice of Arbitration is a handy reference for all who have an interest in arbitration law and practice.

The new Fifth Edition of Carbonneau’s treatise is built upon a comprehensive update of the federal circuit and U.S. Supreme Court cases on arbitration. The Introduction has been rewritten to take into account AT & T Mobility v. Concepcion and the American Express Merchants’ Litigation in the development of U.S. arbitration law. These decisions represent landmark USSC pronouncements on adhesive arbitration. The Introduction also contains a new section on the foundational legitimacy of arbitration in the U.S. legal system. The two landmark decisions are also incorporated into the text of Chapter 8 on the topic of adhesive arbitration. Chapter 9 on the award enforcement assesses the standing of Stolt-Nielsen in light of the Court’s recent decision in Sutter, asking whether this re-evaluation might be a de facto reversal of the earlier and highly unusual opinion. The assessment takes into account Justice Alito’s concurring opinion in Sutter. Chapter 10 on International Commercial Arbitration has undergone substantial rewriting and makes its various points more lucidly and effectively. This is also true of chapters 2, 3, and 5. Many footnotes have been perfected in form and content. The per curiam opinions---KPMG LLP v. Cocchi, Marmet Health Care v. Brown, and Nitro-Lift v. Howard---are all integrated into the text and fully assessed. The USSC’s decision in CompuCredit v. Greenwood is evaluated for its significance on the issue of Congressional intent to preclude arbitration. There are updates on how the courts define arbitration, the waiver of the right to arbitrate (in particular, the Ninth Circuit opinion in Richards v. Ernst & Young), the enforcement of arbitration agreement, with emphasis upon the curious Third Circuit decision on the matter in Guidotti, the latest adherents to the ill-conceived RUAA, the Ninth Circuit’s favorable response to AT&T Mobilty in Mortensen and Murphy, and an assessment of recent developments on the judicial imposition of penalties for frivolous vacatur actions. The treatise continues to be a highly contemporary and complete statement on the law of arbitration.


Table of Contents


1. The Rise of Arbitration

2. Presumptive Contract Validity

3. The Rule of Federal Law

4. Unobstructed Arbitrability

5. The Imperial Federal Judicial Policy

6. Arbitrator Impartiality and Disclosures

7. The Golden Age

8. Adhesive Arbitration

9. Judicialization

10. The Hall Street Protocol

11. The Action to Clarify and the Use of Sanctions

12. The Foundational Legitimacy of Arbitration

13. Pending Case

14. A Map of the Book

Chapter One: Arbitration Defined

1. Introduction

2. The Commercial Appeal

3. The Promise of Arbitration

4. How the Arbitral Trial Works

5. The Basic Mechanism

6. The Political Character of Arbitration

7. Reforming the FAA

8. Arbitration and ADR

9. The Law at a Glance

10. Arbitration and the Practice of Law

11. Conclusion

Chapter Two: Basic Concepts, Principles, and Issues

1. Party Autonomy

2. Arbitration Agreements

3. The Terms of Reference

4. Arbitrability

5. The Separability Doctrine and Kompetenz-

6. Adjudicatory Powers of the Arbitrators

7. Enforcement of Awards

8. Consolidation and Class Actions in Arbitration

9. Fast-Track Arbitration

10. Selecting Arbitrators

11. Expanding the Reach of Arbitration Agreements

12. Waiver of the Right to Arbitrate

13. Multijurisdictional Practice in Arbitration

14. Immunity in Arbitration

15. Arbitral Institutions

16. “Anational” Arbitration: The Lex Loci Arbitri and the
Lex Mercatoria

17. Judicial Supervision of the Merits of Awards in
Anglo-Saxon Laws

18. International Treaties and National Statutes on

19. Contemporary Arbitration Statutes

Chapter Three: The FAA and the Uniform Law

1. The Early "Hostility"

2. The United States Arbitration Act of 1925

3. The Significant Provisions and the Law That
Underlies Them

4. The FAA as a “Super-ADR” Statute

5. The Uniform Law for States

Chapter Four: Resistance

1. The Rise of the Federal Arbitral Policy

2. The Initial Confrontation

3. The Ninth Circuit’s Disposition

4. The Due Process Calculus

5. Illustrative Examples

6. The Engima of Engalla

7. Conclusion

Chapter Five: Arbitration and Federalism

1. Initial Steps toward “Federalization”

2. The Federalism Trilogy

3. The Faux Pas in Volt

4. Affirming the Federalization Policy

Chapter Six: Contract Freedom and Arbitrability

1. The Decisional Edifice on Arbitration

2. Freedom of Contract

3. Mastrobuono

4. Kaplan

5. Freedom of Contract and the Threshold Authority of
the Arbitrator

6. The Demise of “Opt-in” Agreements

7. The Arbitrability of Statutory Claims

Chapter Seven: Conventional Forms of Arbitration

1. Maritime Arbitration: A Private Sector Creation

2. Labor Arbitration: The Privatization of Workplace

3. Conclusion

Chapter Eight: Adhesive Arbitration

1. The Anti-Arbitration Critique

2. The Legislation

3. The “Findings”

4. An Assessment

5. Securities Arbitration

6. The McMahon Opinion

7. The Reversal of Wilko

8. Consumer Arbitration

9. The Early Cases

10. The Rise of Unconscionability

11. The Ruling in Engalla

12. Mutuality in Arbitration

13. Forum Selection Clauses

14. Nursing Homes

15. Class Action Waivers

16. Institutional Rules

17. An Appraisal

18. Employment Arbitration

19. The Judicial Response

20. An Interim Assessment

21. The Arbitrability Schism

22. Uncertainty in the Wake of the Schism

23. The Demise of Gardner-Denver

24. The Factor of Costs

Chapter Nine: The Enforcement of Arbitral Awards

1. Introduction

2. The General Policy for Review and Supervision

3. The Public Policy Exception to Enforcement

4. Arbitrary and Capricious or Irrational Awards

5. Manifest Disregard of the Law

6. Undue Means

7. Excess of Arbitral Authority

8. Arbitrator Misconduct

9. Evident Partiality

10. Penalties for Frivolous Appeals

11. Opt-In Provisions

12. The Action to Clarify Awards

Chapter Ten: International Commercial Arbitration

1. Introduction

2. An Assessment of the New York Arbitration

3. The United States Supreme Court on ICA

4. A Brief History

5. ICA in the World Community

6. The Need for Uniformity

7. Impact on National Law

Table of Cases


Author Detail

Thomas E. Carbonneau is the Samuel P. Orlando Distinguished Professor of Law at Penn State's Dickinson School of Law. Professor Carbonneau is commonly regarded as one of the world's leading experts on domestic and international arbitration. He serves on the editorial board of La Revue D'Arbitrage.


"Most works on arbitration deal only with the nuts-and-bolts; others adopt an entirely theoretical approach. Carbonneau's book offers all the perspectives one could want -- historical, analytical, jurisprudential and practical -- all the while viewing arbitration in its full range of substantive contexts. This completeness makes the book invaluable."

--George A. Bermann, Monnet Professor of European Union Law, Columbia University School of Law. Member, Board of Directors, American Arbitration Association (AAA), Reporter, American Law Institute (ALI), Restatement Third, The U.S. Law of International Commercial Arbitration

"This superb tour d'horizon masterfully brings together the disparate elements of arbitration law and practice. A must for every lawyer and law library."

--William W. Park, Professor of Law, Boston University: Of Counsel, Ropes & Gray, Boston; President, London Court of International Arbitration (LCIA)

"A wonderful tool to explore international arbitration issues."

--Emmanuel Gaillard is Chair of Shearman & Sterling's international arbitration practice group. He is acknowledged as one of the world's leading experts on international arbitration. He is a co-author of Fouchard Gaillard Goldman On International Arbitration, the leading and most exhaustive publication in this field. Mr. Gaillard teaches International Arbitration and Private International Law at the University of Paris XII.

"The book is a wonderful blend of case law, commentary, the author's own experience, and theoretical considerations about the nature and role of arbitration. It provides a unique comparative perspective."

--Clark J. Freshman, Professor, University of Miami School of Law

"An excellent book on the topic of arbitration, destined to become a passage oblige for non-U.S. lawyers wishing to know about the law and practice of arbitration in the United States. The discussion on foreign and transnational law will be of great use to anyone interested in international commercial arbitration."

--Frederic Bachand, Professor, McGill University, Faculty of Law; Member, Canadian Commercial Arbitration Centre

"Professor Carbonneau's book is a necessary reference for practitioners and others interested in arbitration. The author conveys an accurate and comprehensive view of the core issues and debates that have emerged in the field. Carbonneau, in fact, supplies one of the most convincing and well articulated accounts of the law of arbitration. He focuses on both the domestic and international dimensions of the arbitral process and provides a persuasive description of their overlap and distinction. The chapte r on international commercial arbitration is the best treatment of the topic I have seen. This volume will set the standard in the field."

--Philip J. McConnaughay, Dean and Donald J. Farage Professor of Law, Penn State University, The Dickinson School of Law; Former Partner, International Arbitration Group, Morrison & Foerster LLP, Tokyo and Hong Kong

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