Originally from: Employment Arbitration - 2nd Edition - Hardcover
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The Law of Arbitration: Basic Concepts
Thomas E. Carbonneau
A number of concepts and legal doctrines appear in all legal
regulations of arbitration. Understanding these basic notions is essential
to the evaluation of arbitral agreements, arbitral proceedings, and judicial
decision-making regarding the arbitral process.
(i) Party Autonomy
The primary rule that governs the law, practice, and regulation of
arbitration in the vast majority of national jurisdictions, including the
United States, is the principle of freedom of contract. In Volt Information
Sciences, Inc. v. Leland Stanford Junior University, for example, the
U.S. Supreme Court held that:
…[t]he FAA does not require parties to arbitrate when they
have not agreed to do so…nor does it prevent parties who
do agree to arbitrate from excluding certain claims from the
scope of their arbitration agreement….It simply requires
courts to enforce privately negotiated agreements to
arbitrate, like other contracts, in accordance with their
terms….Arbitration under the Act is a matter of consent, not
coercion, and parties are generally free to structure their
arbitration agreements as they see fit….
In effect, freedom of contract allows the parties to write their own
rules of arbitration—to have the agreement establish the law of
arbitration for the parties’ particular transaction. The parties, therefore,
can customize the arbitral process to the needs of their transaction,
eliminate legal rules or trial techniques that might prove inconvenient or
unsuitable, and incorporate procedural elements they believe essential to
the fairness, finality, and functionality of the process.
Full Table of Contents from "Employment Arbitration - 2nd Edition"
Dedication
Preface
Acknowledgments
Section I. An Introduction to the Process and the Issues
Section II. Arbitration: A Definition
(i) Its Appeal to the Commercial Community
(ii) The Reality of Its Operation
(iii) The Actual Operation
1. "Basic Organization"
2. "Arbitrators and Disclosure Requirements"
3. "Establishing the Scope of the Arbitration"
4. "The Basic Hearing"
5. "Third-Party Intervention"
6. "Awards and Judicial Scrutiny"
7. "Arbitral Costs"
8. "A Final Evaluation"
(iv) Arbitration and Lawyers
Section III. The Law of Arbitration: Basic Concepts
(i) Party Autonomy
(ii) Arbitration Agreements
(iii) Arbitrability
(iv) The Separability and Kompetenz-Kompetenz
(v) Amiable Composition
(vi) Duty to Arbitrate in Good Faith
(vii) Consolidation and Class Action in Arbitration
(viii) Selecting Arbitrators
(ix) Adjudicatory Powers of the Arbitrators
(x) Review and Enforcement of Awards
(xi) The Contribution of Practice: Fast-Track Arbitration
(xii) The "Modern" Arbitration Statute
Section IV. A Critical Political Assessment
(i) The Civil Rights Procedures Protection Act
(ii) EEOC Notice
(iii) U.S. Labor Department Position
Section V. The Fountainhead Cases
(i) The Ruling in Gardner-Denver
(ii) The Ruling in Gilmer
Section VI. The Employment Contract Exclusion (FAA §1)
(i) Circuit City Stores, Inc. v. Adams
(ii) The Aftermath of Adams
(iii) The Law Before Adams
Section VII. Fairness in the Employment Arbitration Contract
(i) The Ruling in Armendariz
(ii) Other Rulings
Section VIII. The Allocation of Costs in Employment Arbitration Agreements
(i) The Ruling in Green Tree and Other Cases
(ii) The Green Tree Progeny
Section IX. The Defense of Unconscionability
(i) Tarulli v. Circuit City Stores, Inc.
(ii) Martinez v. Master Protection Corp
(iii) Fitz v. NCR Corp
(iv) Washington Mutual Fin. Grp., LLC v. Curry
(v) Hightower v. GMRI, Inc.
Section X. The Effect of an Employment Arbitration Agreement on EEOC Jurisdiction
(i) The Prior Cases
(ii) EEOC v. Waffle House, Inc.
(iii) Subsequent Cases
Section XI. Employment Arbitration Agreements and Third-Party Beneficiaries
(i) An Introduction to the Issue and the Case
(ii) Penn v. Ryan's Family Steak Houses, Inc.
Section XII. The Basic Judicial Position
(i) The Standard Policy
Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
(ii) The Standard Construction
Great Western Mortgage Corp. v. Peacock
A Note on the Arbitrability of Title VII Claims
(iii) Maintaining the Effectiveness of Adjudication
Maye v. Smith Barney, Inc.
(iv) Distinguishing Between Gilmer and Gardner-Denver
Pryner v. Tractor Supply Co.and Sobierajski v. Theosen Tractor & Equipment Co
A Note on the Judicial Assessment of the Opposing Doctrine
Nieves v. Individualized Shirts
Section XIII. Minority Judicial Positions
(i) An Aggressive Interpretation of Gilmer
Austin v. Owens-Brockway Glass Containers, Inc.
(ii) Seeking Fairness in Employment Arbitration Agreements
Cole v. Burns International Security Services
(iii) The Arbitrability of Civil Rights Claims
Prudential Insurance Co. of America v. Lai
A Note on the Progeny
Willis v. Dean Witter Reynolds, Inc.
(iv) The Exception of Unconscionability
Stirlen v. Supercuts, Inc.
Section XIV. Aspects of the Continuing Debate on the Arbitrability of Title VII Claims
(i) Desiderio v. National Association of Securities Dealers (NASD), 2 F. Supp. 2d 516 (S.D.N.Y. 1998)
(ii) The Decision in Rosenberg v. Merrill Lynch
(iii) (a) Hooters of America v. Phillips, 39 F. Supp. 2d 582 (D.S.C. 1998)
(b) Hooters and the U.S. Fourth Circuit Court of Appeals
(iv) Seus v. John Nuveen & Co., 146 F.3d 175 (3d Cir. 1998), cert. denied, 525 U.S. 1139 (1999)
(v) Title VII and the Award of Attorney's Fees in Employment Arbitration
(vi) State Courts Uphold the Arbitrability of Title VII Claims
(vii) The Seventh Circuit Adopts Arbitrability
Section XV. The Settlements in the Smith Barney and Merrill Lynch Class Action Lawsuits
(i) Smith Barney, An Update
(ii) Merrill Lynch
Section XVI. The U.S. Supreme Court Decision in Wright
(i) The Ruling in Wright
Wright v. Universal Maritime Service Corp.
(ii) Subsequent Cases
Section XVII. "Makeshift" Employment Arbitration Agreements
(i) Employee Handbooks
(ii) E-mail Agreements
(iii) Agreements by Implication
(iv) Agreements by Conduct
Section XVIII. The Institutional Position: Integrating the Legal Doctrine into Corporate Policy
(i) The AAA's Resolving Employment Disputes: A Practical Guide
(ii) The AAA's National Rules for The Resolution of Employment Disputes (Including Mediation and Arbitration Rules)
Section XIX. A Model Agreement and Arbitral Process
(i) Basic Considerations
(ii) Provisions of a Model Agreement
Index and Table of Cases
Thomas 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 de L'Arbitrage and is the author of ten highly acclaimed books and 75 scholarly and professional articles on arbitration.
