Arbitrating Statutory Claims

1
Arbitrating Statutory Claims
p. 441 Shearson/American Express(1987) Statutory
claims generally are arbitrable absent a clear
intent to the contrary by Congress This includes
securities, employment, ADEA and even antitrust
claims
2
Arbitration Procedure

• Impartial arbitrator
• p. 485 Commonwealth Coatings
• 10 of FAA
• What is meant by evident partiality
• Is the dissent correct?
• Compare to rules of AAA. Who has burden to
  disclose possible partiality?

3
Arbitration Procedure

• Informal Nature of Arbitration Hearings
• Limited or no discovery
• Relaxed evidence rules
• Awards without findings/conclusions
• Record/no record. NASD requires
• Class actions. Not available generally, but some
  states permit.

4
Arbitration Procedure

• Waiver of right to arbitrate
• P. 496 Cabinetree of Wisconsin
• Court found presumptive waiver where Kraftmaid
  first availed itself of court (removal) and
  discovery
• 7th Cir did not require proof of prejudice,
  though some do (5th and 11th among them)

5
Arbitration Procedure

• Enforcing the award
• Court adopts award as judicial decree

6
Hybrid Processes

• Med-Arb
• Arb-Med
• Final Offer/Baseball Arbitration
• Must order final offer of one side
• High-low contract offer
• Arbitrator limited to award between the high and
  low offers usually only liability