A Presumptively Better Approach to Arbitrability

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator\u27s purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of arbitrability that necessarily arises when one party disputes the contractual validity of the underlying container contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no arbitration agreement). The U.S. approach of separability dates back a half-century to aSupreme Court case that was controversial when it was decided and remains so today. The Supreme Court has added several more decisions trying to clarify its arbitratbility rules within just the past few years. The Canadians too have tried to sort out this mess, seizing upon the hoary legal distinction between law and fact, also offering recent Supreme Court pronouncements. Neither country\u27s approach is normatively or functionally satisfying. After discussing and critiquing the two approaches comparatively, we offer our own proposal. We too deploy legal presumptions, but in our case we focus on what we contend are the two most relevant criteria: (1) the nature of the legal challenge to the underlying container contract, and (2) the type of contract at issue. Challenges to consent in contract formation and contracts involving adhesion should be specially scrutinized by the courts before carting parties off to arbitration, whereas commercial agreements between sophisticated actors should presumptively be for arbitral resolution. even for constitutive challenges to the underlying contract

A Presumptively Better Approach to Arbitrability

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator’s purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of “arbitrability” that necessarily arises when one party disputes the contractual validity of the underlying “container” contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no arbitration agreement). The U.S. approach of “separability” dates back a half-century to a Supreme Court case that was controversial when it was decided and remains so today. The Supreme Court has added several more decisions trying to clarify its arbitrability rules within just the past few years. The Canadians too have tried to sort out this mess, seizing upon the hoary legal distinction between law and fact, also offering recent Supreme Court pronouncements. Neither country’s approach is normatively or functionally satisfying. After discussing and critiquing the two approaches comparatively, we offer our own proposal. We too deploy legal presumptions, but in our case we focus on what we contend are the two most relevant criteria: (1) the nature of the legal challenge to the underlying container contract, and (2) the type of contract at issue. Challenges to consent in contract formation and contracts involving adhesion should be specially scrutinized by the courts before carting parties off to arbitration, whereas commercial agreements between sophisticated actors should presumptively be for arbitral resolution, even for “constitutive” challenges to the underlying contract

A Presumptively Better Approach to Arbitrability

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator\u27s purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of arbitrability that necessarily arises when one party disputes the contractual validity of the underlying container contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no arbitration agreement). The U.S. approach of separability dates back a half-century to aSupreme Court case that was controversial when it was decided and remains so today. The Supreme Court has added several more decisions trying to clarify its arbitratbility rules within just the past few years. The Canadians too have tried to sort out this mess, seizing upon the hoary legal distinction between law and fact, also offering recent Supreme Court pronouncements. Neither country\u27s approach is normatively or functionally satisfying. After discussing and critiquing the two approaches comparatively, we offer our own proposal. We too deploy legal presumptions, but in our case we focus on what we contend are the two most relevant criteria: (1) the nature of the legal challenge to the underlying container contract, and (2) the type of contract at issue. Challenges to consent in contract formation and contracts involving adhesion should be specially scrutinized by the courts before carting parties off to arbitration, whereas commercial agreements between sophisticated actors should presumptively be for arbitral resolution. even for constitutive challenges to the underlying contract

A laboratory facility to study gas-aerosol-cloud interactions in a turbulent environment: The Π Chamber

A detailed understanding of interactions of aerosols, cloud droplets/ice crystals, and trace gases within the atmosphere is of prime importance for an accurate understanding of Earth’s weather and climate. One aspect that remains especially vexing is that clouds are ubiquitously turbulent, and therefore thermodynamic and compositional variables, such as water vapor supersaturation, fluctuate in space and time. With these problems in mind, a multiphase, turbulent reaction chamber—called the Π chamber because of the internal volume of 3.14 m3 with the cylindrical insert installed—has been developed. It is capable of pressures ranging from 1,000 to –60 hPa and can sustain temperatures of –55° to 55°C, thereby spanning much of the range of tropospheric clouds. To control the relative humidity in the chamber, it can be operated with a stable, unstable, or neutral temperature difference between the top and bottom surfaces, with or without expansion. A negative temperature difference induces turbulent Rayleigh–Bénard convection and associated supersaturation generation through isobaric mixing. Supporting instrumentation includes a suite of aerosol generation and characterization techniques; temperature, pressure, and humidity sensors; and a phase Doppler interferometer. Initial characterization experiments demonstrate the ability to sustain steady-state turbulent cloud conditions for times greater than 1 day, with droplet diameters typically in the range of 5–40 µm. Typical turbulence has root-mean-square velocity fluctuations on the order of 10 cm s–1 and kinetic energy dissipation rates of 1 × 10–3 W kg–1

Evidence of sound production by spawning lake trout (Salvelinus namaycush) in lakes Huron and Champlain

Two sounds associated with spawning lake trout (Salvelinus namaycush) in lakes Huron and Champlain were characterized by comparing sound recordings with behavioral data collected using acoustic telemetry and video. These sounds were named “growls” and “snaps” and were heard on lake trout spawning reefs, but not on a nonspawning reef, and were more common at night than during the day. Growls also occurred more often during the spawning period than the prespawning period, while the trend for snaps was reversed. In a laboratory flume, sounds occurred when male lake trout were displaying spawning behaviors: growls when males were quivering and parallel swimming and snaps when males moved their jaw. Combining our results with the observation of possible sound production by spawning splake (Salvelinus fontinalis × Salvelinus namaycush hybrid) provides rare evidence for spawning-related sound production by a salmonid or any other fish in the superorder Protacanthopterygii. Further characterization of these sounds could be useful for lake trout assessment, restoration, and control