LSN: Contract Litigation最新文献

{"title":"India's Jumbled Public Policy Jurisprudence: Stretch, Demarcate and Saw (Pipes)","authors":"Malcolm Katrak","doi":"10.2139/ssrn.3812355","DOIUrl":"https://doi.org/10.2139/ssrn.3812355","url":null,"abstract":"The doctrine of public policy is a channel through which public law enters private law and bars it from actualizing its normal legal consequences. Even though public policy is an old doctrine in common law, it is not clear which aspects of public law could enter the arena of private law and make it unenforceable. Despite the historical importance of the doctrine of public policy in contractual settings, there is still an unresolved tension at the heart of the intersection between private conflict resolution mechanisms and public policy.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"282 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121337099","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Commercial Arbitration In Canada After Uber Technologies Inc. v. Heller","authors":"Tamar Meshel","doi":"10.2139/ssrn.3646573","DOIUrl":"https://doi.org/10.2139/ssrn.3646573","url":null,"abstract":"This article examines the Supreme Court of Canada’s judgment in Uber Technologies Inc. v. Heller from an international commercial arbitration perspective, focusing on two specific issues. The first issue is the Court’s application of a provincial domestic, rather than international, arbitration statute to Uber and Heller’s international arbitration agreement, on the ground that the agreement is not “commercial”. The article argues that this finding is not in line with international arbitration instruments and practice. The second issue is the Court’s interpretation and application of the competence-competence principle, which permits arbitral tribunals to decide their own jurisdiction. The article maintains that the Court’s approach does not offend this principle, but that the Court provides insufficient guidance to lower Canadian courts on how to implement this approach in future cases. The article concludes that the Court’s decision, while far-reaching in many respects, should not disturb the enforcement of routine international commercial arbitration agreements in Canada. The decision may have implications, however, for arbitration agreements contained in international contracts – particularly standard form contracts – that might give rise to employment disputes, such as those in the gig economy, or that contain terms that may seem to bar a party’s access to the arbitral process.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134218088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Collective Preclusion and Inaccessible Arbitration: Data, Non-Disclosure, and Public Knowledge","authors":"J. Resnik, Stephanie Garlock, Annie Wang","doi":"10.2139/ssrn.3606277","DOIUrl":"https://doi.org/10.2139/ssrn.3606277","url":null,"abstract":"When courts enforce mandates to arbitrate, jurists describe themselves as respecting the individuals’ autonomy to enter into contracts that route claimants to a process that is more user-friendly than adjudication. But those rationales are disjunctive with the practices of providers of goods and services and of employers. These companies neither offer individuals choices about dispute resolution mechanisms nor welcome the exchange of information about experiences with arbitration. Instead, companies impose obligations to arbitrate and set the terms. In addition to the increasingly commonplace bans on joint and collective actions in any forum, many providers and employers also seek to mandate a cone of silence by instructing individuals not to disclose the content of claims, the use of arbitration, or the outcomes. \u0000 \u0000But as we document in this Article, during the last decade, very few individuals filed claims, single-file, in arbitration. Given the success in precluding class actions and the rarity of filings, why are market actors seeking to silence the few who do arbitrate? And are such mandates enforceable by courts? \u0000 \u0000In this Article, we interrupt these silencing provisions through disseminating information about the rules of and use of arbitration. We track efforts to limit information about arbitration, outline the growing body of law on non-disclosure, and analyze the data about consumer use of arbitration. As we recount, some jurists have held non-disclosure obligations unenforceable. Yet many decisions condone their imposition despite the repeat-player advantages that accrue to the clauses’ drafters, who have access to information that one-shot participants do not have. \u0000 \u0000In addition to information about efforts to silence litigants that can be gleaned from the case law, we have also mined materials posted by the American Arbitration Association (AAA), which has complied with state statutes requiring administrators of consumer arbitration to make accessible the number of claims filed and the results. The picture that emerges is that, of the millions of people using services and products, virtually none file individual arbitration claims. \u0000 \u0000Because AT&T succeeded in persuading the U.S. Supreme Court to enforce bans on collective action and require claimants to use the AAA, we researched arbitration filings against AT&T. Between 2009 and 2019, when the AT&T wireless services customer base ranged from 85 to 165 million, about 90 individuals a year filed an arbitration claim. \u0000 \u0000The available data also provide insight into why, given that remarkably low level of claims, providers of services seek to silence the few who are arbitration users. Law firms and other aggregators have begun a market in de facto collective actions by bundling similar claims against individual providers. And, outside of courts and arbitration, collective consumer action can seek remedies by putting information into the public realm that can affect purchasing decis","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124407963","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Symposium Article: Complete Contracts in Finance","authors":"Elisabeth de Fontenay","doi":"10.2139/ssrn.3603760","DOIUrl":"https://doi.org/10.2139/ssrn.3603760","url":null,"abstract":"Notwithstanding its significant influence in corporate finance, the theory of incomplete contracts is arguably misunderstood by courts enforcing contracts governing corporate transactions. In resolving such disputes, judges implicitly assume that complete contracts are both achievable and desirable when the parties are financially sophisticated, and they systematically assign blame to one of the parties for leaving the contract incomplete. This, in turn, prompts parties to write ever longer and more complex agreements. Such agreements do not necessarily produce more efficient outcomes, however. In fact, they may yield unexpected outcomes or interpretations, which can be enforced opportunistically by one of the parties or by third parties.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131245742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Is a Ricardian Contract?","authors":"Usman W. Chohan","doi":"10.2139/SSRN.3085682","DOIUrl":"https://doi.org/10.2139/SSRN.3085682","url":null,"abstract":"Recent technological innovations have created room for the construction and implementation of “Ricardian” contracts, which are robust, transparent, and efficient contractual structures that can be expressed and executed in software. This discussion paper discusses the scope and functions of such contractual structures and considers their wider implementation and use given their reduced transaction costs, faster dispute resolution, better enforceability and enhanced transparency.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127619619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Impact of Mandatory Arbitration on the Common Law Regulation of Standard Terms in Consumer Contracts","authors":"James P. Nehf","doi":"10.2139/SSRN.2923746","DOIUrl":"https://doi.org/10.2139/SSRN.2923746","url":null,"abstract":"The focus of this paper is the regulation of standard terms in consumer contracts at common law, i.e., judges deciding cases in published opinions. In particular, I focus on the two most important common law doctrines in this area — unconscionability and good faith — and to a lesser extent on court decisions that interpret consumer statutes. They have all played a central role in regulating standard terms in consumer contracts over the years, yet their continuing role is being threatened by the proliferation of mandatory arbitration provisions in consumer contracts. If this trend continues, the ability of courts to further develop contract doctrine in consumer transactions may be severely limited. I begin with a discussion of the role that common law plays in regulating consumer transactions. I then discuss how the unconscionability and good faith doctrines have evolved as limitations on standard terms in consumer contracts. Next I discuss the increasing use of mandatory arbitration clauses in consumer contracts and the likely effects of this trend on consumer contract litigation. Toward the end of the paper, I explore what this might mean going forward if the common law of unconscionability and good faith in consumer contracts are essentially frozen in time, and if mandatory arbitration results in fewer published decisions interpreting and applying consumer statutes.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115428949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contracting Out of Access to Justice: Enforcement of Forum Selection Clauses in Consumer Contracts","authors":"M. Pavlović","doi":"10.7202/1040051AR","DOIUrl":"https://doi.org/10.7202/1040051AR","url":null,"abstract":"Forum-selection agreements in consumer contracts nominate by default the business’s home jurisdiction to resolve disputes and thus directly impact a consumer’s ability not only to access courts, but also to obtain access to substantive justice. It has been argued that courts should consider enforcing jurisdiction clauses in consumer contracts with “greater scrutiny” because of their inherent power imbalance. To examine how the courts approach forum-selection clauses in consumer contracts, this article analyzed all reported consumer cases involving forum-selection agreements in Canadian common law jurisdictions between 1995 and 2016. The analysis of these cases shows that the courts have failed to exercise the greater scrutiny that was called for. In light of the analysis of the surveyed cases, this article argues that the rules for enforcing forum-selection clauses in consumer contracts ought to be recalibrated to reflect the power dynamics of consumer relationships, the ubiquity of standard-form contracts, and their effect on consumers’ ability to obtain redress. This article proposes two suggestions for reform: legislative intervention to invalidate forum-selection clauses in consumer agreements, and reframing and recalibrating the common law strong-cause test for the enforcement of forum-selection clauses in consumer transactions.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"235 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122922436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Freedom to Mislead: The Fictitious Freedom to Contract Around Fraud Under Delaware Law","authors":"Hao Jiang","doi":"10.2139/ssrn.2815380","DOIUrl":"https://doi.org/10.2139/ssrn.2815380","url":null,"abstract":"In the past 15 years, Delaware courts seem to have created a rule that allowed sophisticated parties to contract around fraud by using an unambiguous disclaimer and integration clause. Supposedly, an extra-contractual fraud claim would be dismissed had there been an unambiguous disclaimer. However, a survey of Delaware cases tells a different story. They have not held that even sophisticated parties who have relied on fraudulent misrepresentations are bound by contract with a clear disclaimer and integration clause. In the cases in which the courts have supposedly done so, either the party seeking to uphold the contract did not make any fraudulent misrepresentations or the other party did not rely on them or the case could as easily have been decided on other grounds.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122221905","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Continuing Evolution of U.S. Judgments Recognition Law","authors":"Ronald A. Brand","doi":"10.2139/SSRN.2670866","DOIUrl":"https://doi.org/10.2139/SSRN.2670866","url":null,"abstract":"The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that result in both inequity of result and inefficiency of judicial process. These inefficiencies are fueled by differences regarding (1) substantive rules regarding the recognition of judgments, (2) requirements for personal and quasi in rem jurisdiction when a judgments recognition action is brought (recognition jurisdiction), and (3) the application of the doctrine of forum non conveniens in judgments (and arbitral award) recognition cases. Recent cases demonstrate the need for a return to a single, federal legal framework for the recognition and enforcement of foreign judgments. This article reviews the history of U.S. judgments recognition law, summarizes current substantive law on the recognition and enforcement of foreign judgments, reviews recent decisions that demonstrate the three specific problem areas, and proposes a coordinated approach using federal substantive law on judgments recognition and state law on related matters in order to eliminate the current problems of non-uniformity and inefficient use of the courts.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129609754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mandatory Arbitration in Consumer Finance and Investor Contracts","authors":"Michael S. Barr","doi":"10.1017/9781316691397.005","DOIUrl":"https://doi.org/10.1017/9781316691397.005","url":null,"abstract":"Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts — for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute. The lack of salience means that there is no meaningful competition over arbitration provisions or likely any price effect. Some arbitration proceedings lack procedural protections, and unbiased arbitrator selection essential for fair outcomes. In addition, many arbitration provisions contain “gag” rules barring disclosure of reasoning, evidence, or outcomes. Moreover, arbitration clauses typically preclude consumers from banding together in aggregated actions, which diminishes redress and weakens deterrence. In the wake of the financial crisis, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which authorizes the new Consumer Financial Protection Bureau and the U.S. Securities and Exchange Commission to prohibit or condition the use of arbitration clauses in consumer finance and investment contracts, respectively. It is well past time for these agencies to use this authority.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116525693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}