Arbitrating in the Ether of Intent

The U.S. Supreme Court\u27s jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent in a respect that is fundamental yet not quite captured in existing legal literature. Specifically, in determining the core question of whether any particular dispute should be resolved by arbitration under the FAA, the Court has stubbornly relied on the concept of the parties\u27 “intent” on the matter. “Intent,” however, is at once elusive and polymorphic. It is elusive because the parties will often not have considered whether the particular issue is arbitrable, much less who—court or arbitrator—should decide that preliminary question. It is polymorphic as rendered by the Court, which has veered from looking for evidence of actual, conscious intent to constructive intent, and also from seeking out the intent to be bound procedurally by arbitration to the intent respecting the substantive terms of the arbitration agreement. These different senses of intent can and do conflict, but the careful differentiation thereof is masked by the Court\u27s treatment of “intent” as a monolithic concept. To illustrate the distorting influence on FAA jurisprudence, this Article dissects Supreme Court opinions in two broad sections of the FAA case law, both of which illustrate vividly the deforming effect of intent on it. The first concerns the carving up of jurisdiction between courts and arbitrators that goes to the foundations of the FAA, namely, the question of which decisionmaker—court or arbitrator—should determine whether the underlying dispute is arbitrable. The second is a controversy of more recent provenance that already has striking implications for all manner of consumer and employment contracts, specifically, the question concerning the availability of class arbitration. The result of this confused exercise is a tottering FAA case law built on ever more rarefied abstractions of “intent” that are little anchored in reality, yet impact in a very real way a broad range of contracts, including countless consumer and employment agreements. Thus, a complete and accurate account of the Court\u27s jurisprudence under the FAA is not possible without a close scrutiny of the role of “intent,” a concept that is ultimately wanting

投资者--国家仲裁中的精神损害赔偿的特征

投资法庭普遍没有把握住给予投资者精神损害赔偿的特征，未能区分精神损害赔偿与其他形式的赔偿，比如赔礼道歉和恢复名誉（不包括惩罚性赔偿）--导致在处理精神损害问题时面临各种理论和实际困难

Arbitrating in the Ether of Intent

The U.S. Supreme Court\u27s jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent in a respect that is fundamental yet not quite captured in existing legal literature. Specifically, in determining the core question of whether any particular dispute should be resolved by arbitration under the FAA, the Court has stubbornly relied on the concept of the parties\u27 “intent” on the matter. “Intent,” however, is at once elusive and polymorphic. It is elusive because the parties will often not have considered whether the particular issue is arbitrable, much less who—court or arbitrator—should decide that preliminary question. It is polymorphic as rendered by the Court, which has veered from looking for evidence of actual, conscious intent to constructive intent, and also from seeking out the intent to be bound procedurally by arbitration to the intent respecting the substantive terms of the arbitration agreement. These different senses of intent can and do conflict, but the careful differentiation thereof is masked by the Court\u27s treatment of “intent” as a monolithic concept. To illustrate the distorting influence on FAA jurisprudence, this Article dissects Supreme Court opinions in two broad sections of the FAA case law, both of which illustrate vividly the deforming effect of intent on it. The first concerns the carving up of jurisdiction between courts and arbitrators that goes to the foundations of the FAA, namely, the question of which decisionmaker—court or arbitrator—should determine whether the underlying dispute is arbitrable. The second is a controversy of more recent provenance that already has striking implications for all manner of consumer and employment contracts, specifically, the question concerning the availability of class arbitration. The result of this confused exercise is a tottering FAA case law built on ever more rarefied abstractions of “intent” that are little anchored in reality, yet impact in a very real way a broad range of contracts, including countless consumer and employment agreements. Thus, a complete and accurate account of the Court\u27s jurisprudence under the FAA is not possible without a close scrutiny of the role of “intent,” a concept that is ultimately wanting

Panel 1: The Framework Shaping the Law: Whose interests are reflected in existing treaties, practice and norms?

A focus on treaties, customary norms, soft law, arbital and judicial decisions to illustrate how an emergent international law of property has come to influence property rights held by private actors. This panel will focus on a) the human right to property; and b) international expropriation law

Reply: Clawback to the Future

In an earlier article also available on Scholarship Commons, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, Minnesota Law Review, Vol. 94, p. 368, 2009, Professors Miriam Cherry and Jarrod Wong set out an initial description and analysis of contractual clawback provisions. In this Reply, Profs. Cherry and Wong address three aspects of Michael Macchiarola\u27s Response: its application of the clawback doctrine to the recoupment of executive compensation; the criticism that the clawbacks doctrine introduces latent subjectivity into contractual analysis; and the apparent operational difficulties in implementing clawbacks

Reply: Clawback to the Future

In an earlier article also available on Scholarship Commons, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, Minnesota Law Review, Vol. 94, p. 368, 2009, Professors Miriam Cherry and Jarrod Wong set out an initial description and analysis of contractual clawback provisions. In this Reply, Profs. Cherry and Wong address three aspects of Michael Macchiarola\u27s Response: its application of the clawback doctrine to the recoupment of executive compensation; the criticism that the clawbacks doctrine introduces latent subjectivity into contractual analysis; and the apparent operational difficulties in implementing clawbacks