AT&T Mobility and the Future of Small Claims Arbitration

This article focuses on small claims arbitration and examines the impact of AT&T Mobility on the legitimacy of the process. Part II of the article describes the Supreme Court’s AT&T Mobility decision, which held that the FAA preempts a California rule that declared a class arbitration waiver in a consumer contract unconscionable. Part III describes the primary features of the two options remaining for the Concepcions—small claims court and small claims arbitration, as well as their perceived advantages and disadvantages. Part IV demonstrates that courts have endorsed simplified arbitration. Part V examines whether simplified arbitration is a fair method of resolving small arbitration claims. Part VI explores other dispute resolution models for resolving small dollar value commercial disputes, including on-line dispute resolution, telephonic arbitration, and a small claims arbitrator. Part VII concludes by urging dispute system designers to consider changing the default mechanism of arbitrating small claims cases from paper or “desk” arbitration to a live hearing before a small claims arbitrator

Penerapan Arbitrase Online Dalam Penyelesaian Sengketa Transaksi E-Commerce

This research focuses on method of dispute resolution using online arbitration as online dispute resolution. This research character is analytical descriptive. Analysis method used in this research is qualitative method. The result of this research shows: First, online arbitration as one of the method of dispute resolution using online dispute resolution considered by e-commerce business actors as the best solution in resolving dispute in cyber world; Second, online arbitration in the practice faces juridical obstacle in some matters as follow: (1) agreement to perform arbitration; (2) choice of arbiter (3) fulfillment of fundamental procedures; (4) character and execution of arbitration binding decision

Control Over Dispute-System Design and Mandatory Commercial Arbitration

This article argues that mandatory arbitration is not itself the problem. The problem is instead that in some instances, one party to the dispute has exclusive control of the design of the dispute-resolution system. Consequently, research on mandatory arbitration should concentrate on who is structuring it, how they structure it, why this is so and how these choices affect dispute outcomes

Institutional Pressures, Human Resource Strategies, and the Rise of Nonunion Dispute Resolution Procedures

The author investigates factors influencing the adoption of dispute resolution procedures in the nonunion workplace. Various explanations are tested using data from a 1998 survey of dispute resolution procedures in the telecommunications industry. The results suggest that both institutional pressures and human resource strategies are factors driving the adoption of nonunion procedures. Among institutional factors, rising individual employment rights litigation and expanded court deferral to nonunion arbitration have led to increased adoption of mandatory arbitration procedures in the nonunion workplace. At the same time, an older institutional factor—union substitution by nonunion employers aimed at avoiding union organizing—continues to inspire the adoption of nonunion dispute resolution procedures, especially peer review. Finally, the results provide some support for a link between the use of high performance work systems and the adoption of nonunion dispute resolution procedures

Fungsi Perjanjian Arbitrase

Disputes or disagreements can happen anytime and anywhere without being limited space and time as long as we live in a society. The most important thing in dispute or disagreement is how to resolve the dispute wisely. Many ways that can be taken to resolve the dispute or disagreement in the field of civil or trade. One form of alternative dispute resolution is a resolution through arbitration institution. Dispute resolution through arbitration agreement or clause requires that states that the parties agree to resolve a dispute that has existed or will exist between them will be resolved through arbitration. Arbitration agreement as a form of agreement, subject to the general provisions of the treaty as contained in the Code of Civil Law. Issues to be discussed in this paper is whether the function of the arbitration agreement or arbitration clause in a settlement of the dispute through arbitration

Arbitration as Settlement of Disputes in Foreign Investments

This study aims to determine and understand the procedures for dispute resolution through arbitration in foreign investment (PMA), and how the development of arbitration is in accordance with positive knowledge and law in relation to dispute resolution in foreign investment (PMA). This research utilizes normative juridical legal research. This study uses a statutory, historical, and conceptual approach. The findings show that the procedure for disputing resolution through arbitration in foreign investment (PMA) has been confirmed in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. The development of arbitration is in accordance with positive knowledge and law in relation to dispute resolution in Foreign Investment (PMA), that investors, in this case, not all of them are able to have a positive impact on the progress of society and the Indonesian government, the legal process of arbitration in resolving disputes in foreign investment (PMA) is far from perfect words

Bargaining in the (Murky) Shadow of Arbitration

Disputing parties who are unable to settle their differences will end up before an adjudicator (typically a judge or jury) who will decide their dispute for them. Dispute resolution scholars have long theorized that disputants bargain in the shadow of this adjudicated outcome, predicting what would happen in court substantively and procedurally, and negotiating based on an assessment of the strength of “bargaining endowments” derived from applicable legal norms. The increasing use of arbitration to resolve commercial disputes in the U.S. means that more and more disputants are negotiating in the shadow of arbitration, not litigation. This Article explores how procedural differences between arbitration and litigation impact disputants who bargain in arbitration\u27s shadow, and adds an entirely new critique to the robust scholarship criticizing the fairness of mandatory arbitration. Because arbitration awards are often not public and are not considered precedent, the law does not develop in areas where virtually all disputes are arbitrated. Disputants can only murkily predict the likely outcome in arbitration, and thus can neither negotiate from an anchoring premise nor manage the risk of a failed negotiation. Ultimately, this leads to a reduction in value of the bargaining endowments the shadow of the law would otherwise grant. In turn, this weakens the legitimacy of these settlements and of arbitration as a dispute resolution process

Tinjauan Yuridis Penyelesaian Sengketa Kepailitan terhadap Adanya Klausul Arbitrase

Research review of juridical dispute resolution bankruptcy against the existence of the arbitration clause, have the problem of how the basic dispute resolution Authority Bankruptcy and Insolvency with dispute resolution arbitration clause based on the principle of Pacta Sunt Servanda. This research uses the normative research methods to analyze legislation related to bankruptcy dispute resolution in Indonesia. From this research it can be noted that with the enactment of Act No. 37 of the year 2004, then bankruptcy dispute resolution authority is the authority of the courts of Commerce according to article 1 of law No. 37 number 7 Year 2004 where it determines that the article in question in court in Act No. 37 of the year 2004 is the Commerce Court. Furthermore, problems associated with the bankruptcy dispute resolution based on the existence of an agreement between the two sides in agreement that acknowledged the existence of the arbitration clause as an attempt of dispute resolution in accordance with the principle of pacta sunt servanda, then the issue of dispute settlement, bankruptcy court but no longer authorized commercial arbitration institutions is authorized. This is because as one form of high penjunjungan the legal principles of the agreement, namely the principle of pacta sunt servanda that diimpelementasikan in the provision of article article 3 Law Number 30 of 1999 on alternative dispute resolution and Arbitration, stating that the State Court is not uthorized to adjudicate disputes of parties who have been bound in the arbitration agreement. Keywords : bankruptcy, arbitration, the principle pacta sunt servand

The Dispute Settlement through International Arbitration between PT. Karaha Bodas Company against PT. Pertamina and PLN

Arbitration is a dispute resolution institution that uses an adversarial approach with the result that win lose chosen as an alternative by business people. Alternative dispute resolution that is currently in demand is through arbitration because it is in line with the increase in commercial transactions in the business sector both nationally and internationally. Dispute resolution through arbitration provides benefits for the disputing parties. These advantages include the confidentiality of the disputing parties, relatively cheaper costs, a fast, efficient dispute resolution process and provide flexibility for the disputing parties. International arbitration dispute resolution has a uniqueness which adheres to the principle of final and binding (last resort and binding). An international arbitral award that has been decided abroad if it is brought to Indonesia, there are two possibilities, i.e. the International arbitral award asks to be enforced or annulled. Based on the dispute between PT. Pertamina against Karaha Bodas Company that Pertamina cannot cancel the arbitration award that has been handed down by the Swiss Arbitration Board. The reasons for rejection and cancellation are as stated in the New York Convention and the UNCITRAL Model Law

The Majority Approach to Arbitration Waiver: A Workable Test or A License for Litigants to Play Games with the Courts?

[Excerpt] “The freedom of parties to agree to arbitrate their disputes is enshrined by contract law and federal law. By inserting a mandatory arbitration clause in a contract, both parties agree that, should a dispute arise between them, they will not bring the matter to court. Instead, they agree to submit any disputes to a mutually-agreed-to third party, such as the American Arbitration Association; this third-party acts like a judge and resolves the dispute. Arbitration has many advantages, such as reducing the cost and increasing the efficiency of dispute resolution. Because of these reduced costs and greater efficiency, businesses can pass along their savings to consumers by offering them lower prices and more value. Notwithstanding all of these advantages, the freedom of parties to insert enforceable arbitration clauses in their contracts has its fair share of detractors. Big businesses often insert such clauses in take-it-or-leave-it consumer contracts, such as credit card and cell phone agreements. Consumers who want or need the service provided by these businesses are forced to agree to mandatory arbitration clauses, which grant to both parties the legal right to insist upon arbitration as the sole dispute resolution method. While almost no one disagrees that arbitration is efficient and less costly, some argue that it is an unfair process. Since the business party usually appears before the third-party arbitrator repeatedly, whereas the consumer appears before him only once, the arbitrator may feel inclined to find in favor of the business party, its repeat customer. This debate between efficiency and the unfairness underlies any discussion about arbitration. This note will address this debate by analyzing merely one facet of arbitration: arbitration waiver. All of the circuits agree that when a party with a contractual right to arbitrate chooses to litigate a dispute, the party’s election to litigate may waive his ability to move the case out of court and into arbitration. However, they disagree about what test should be applied to decide whether a particular election to litigate constitutes arbitration waiver. The circuits have formulated primarily two different tests. In the majority of circuits, two elements must be proven: (1) the party seeking arbitration must have participated in litigation; and (2) the party resisting arbitration must show that he will suffer prejudice. A minority of circuits keep the first element, but the prejudice requirement has been eliminated.