Perhaps the time to tackle whether employer can demand employees to waive their right to class action in an arbitration agreement has come.
Uber is stating that the lawsuit is one between Google and its former employee, for which lies an arbitration agreement.
Failure to pay fees, if agreed in an arbitration clause, equals to non-feasance.
New update since 2003 with effect from 31/1/2017.
- Art. 23 – Removal of right to challenge appointment of arbitrator in court,
- Art. 14-15 – Sole arbitrator as default position,
- Art. 39 – Power to grant interim measures,
- Art. 4.4 – Service and filing by e-mail
- Art. 29 – Timetable for the arbitration
- Art. 13 – Power to consolidate proceedings
Poland: a law recently approved on 17th Jan 2017 intertwines Consumer Law and Arbitration.
Here, an arbitration agreement in a contract with a consumer is presumed to be an unfair contract term and it can only be concluded in writing after the dispute emerges. An additional requirement imposes the parties to acknowledge that they are aware of arbitration’s effects, in particular of the binding effect of the arbitral award or settlement after the state court enforces or recognises them
No exchange of means of communication that enables its content to be recorded is allowed.
You can find some considerations on which Arbitration agreements can harm consumer rights by browsing my previous post in the Arbitration section.
The Court of London has recently ruled in two decisions deciding two aspects of arbitration:
- Can a non-signing counterparty be bound by the agreement containing an arbitration clause? And,
- Which parties are authorised to accept service of arbitration notices?
In the first case, the Court ruled that a non-signing counterparty must grant actual or ostensible authority for a furher counterpartty to sign a contract including an arbitration clause on its behalf. In this case (London Maritime Arbitrators Association Award 13/16), only defining the term ‘merchant’ to include the shipper wasn’t enough.
In the second case, it was stressed out as important is it that a party is authorised to accept service of arbitration notices. Without such confirmation, service may not be recognised. However, an agent or broker usually grants arbitration notice to its principal and actual receipt of the notice by the principal is regarded as effective.
Another trend lots of legals are not aware of is the funding of litigation (and prisons) from third parties.
Although on the one hand it allows short-resourced parties to afford litigation, this phenomenon also sets some worrisome issues:
- firstly, what if “investors” decide to fund only litigation where sucess’ rate is higher?
- on top of percentages on awarded damages, additional expenses are required (and render the process less profitable): upfront due-diligence, NDA drafting and the funding agreement.
- Although in English litigation, a third-party funder of an unsuccessful litigant could be liable to contribute towards the costs of the other side in proportion to the initial contribution, within arbitration boundaries, this is less clear and it may force the funder to resort to security for its costs.
- conflict(s) of interest may arise
- Privilege and confidentiality may vary across countries.
Further issues come along and the question is once again: is more regulation the answer?
Scalia’s death was only one of the many events that undermined the application of arbitration to consumer contracts. Yet, Trump’s election represents a threat to such balance of rights.
Namely courts created uncertainty around delegation clauses; regarding who can decide the availability of arbitration clauses. Arbitration is also not applicable to famous athletes and well five federal circuits disagreed with NLRB on applicability of Arbitration clauses.
The article goes (arguably for the yes):
- you can keep privacy of the matter – unless the employee or the client talks about it to social media (watch out for the confidentiality within the litigation clause)
- you can save money – arbitration are knowingly expensive. They can be shorter, sure (although it also depends shorter what which country) but are generally more expensive than the public one.\
More than 200 arbitration and dispute resolution practitioners to handle arbitrations in English, Spanish, Russian and Chinese among the others.