During the past few years arbitration has been under attack. Recent judicial decisions, newly enacted and proposed legislation, and populist sentiments are important and obviously can result in significant changes. But many of the criticisms leveled at arbitration can be addressed and, most...

This Article is primarily about whether the parties to a collective bargaining agreement can voluntarily agree to alter the standard of judicial review that any such labor arbitration decision would normally be subjected to. Under the FAA in the context of commercial arbitration, this issue has...

Advanced systems of domestic corporate law generally apply a “no reflective loss” principle to shareholder claims. Shareholder claims are permitted for direct injury to shareholder rights (such as voting rights). But shareholders generally cannot bring claims for reflective loss incurred as...

Corporate law in advanced domestic legal systems on the one hand, and typical treaties for the protection of foreign investment on the other hand, treat claims for damages by company shareholders differently. Advanced domestic systems generally bar shareholders from claiming for reflective loss...

Should arbitrators consider authority—such as statutes or case law—external to the collective bargaining agreement when deciding labor grievances? Do they rely on such external authority? If so, do they do so in particular circumstances or in certain types of cases? To provide more insight...

The process of arbitration has been transformed by a series of Supreme Court decisions that have increased the enforceability of arbitration awards. Beyond that, the Supreme Court has also taken steps to ensure the enforceability of promises to arbitrate. These latter arbitrability issues raise...

This paper comes from a February 2012 Symposium, "The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector." It discusses the history of an important form of alternative dispute resolution: the use of what is...

Today, binding arbitration procedures are employed in a wider variety of contracts than at any time in our nation's history, and arbitration has become a wide-ranging surrogate for court trial of civil disputes. As a result, arbitration is subjected to unprecedented stresses and strains, and it...

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling...