Arbitration Clauses and Litigation
More and more companies are including arbitrational clauses in their contracts. Whether it is in an employee application or an online selling website, arbitrational clauses are becoming abundant. But do these clauses hold up in the legal system? In the recent Paypal Corporation case, the arbitration clause was not enforced due to miniscule details such as clicking a mouse. The overruling of these clauses is becoming the norm as people are beginning to realize what they have gotten themselves into.
The same type of arbitrational clause dispute as the Paypal Corporation occurred in the case of BellSouth Mobility LLC v. Christopher. BellSouth institutionalized an arbitrational clause in its service agreement that states that “instead of suing in court, company and customer agree to arbitrate any and all dispute”. In the event that the disagreement goes through arbitration, the arbitrator can not give punitive damages to the plaintiff as well as only receive a limited amount of recovery money. When Christopher brought the case before an appellate court, the court sided in his favor claiming that the contract was “substantively unconscionable” due to the fact that BellSouth still had the right to bring Christopher to court over different legal matters, giving them an “unfair advantage.” The case continued to go to trial court to see if the contract was “procedurally unconscionable” because of the small print of the arbitrational clause. Because Christopher was not fully forewarned about the arbitrational clause, and the fact that BellSouth took advantage of a client, BellSouth was found guilty (Hackbarth).
A similar situation occurs in the case of Toppings v. Meritech Mortgage Services (MMS). An elderly couple, Margaret and Roger Toppings received a loan from Meritech Mortgage Services for thirty-seven thousand dollars with a monthly payment plan which would last for fifteen years, along with thirty-six thousand dollars in interest. Before signing the loan, the couple asked for the document to be explained. At the time, the MMS lawyer was not coherent with the document but told the couple to read it at home after signing the document. Upon reading the contract, the Toppings came across the amount to be repaid in interest and tried to bring MSS to court for trying to take advantage of the elderly.
Jones was party to the contract and mortgage together with Mrs Jones as surety for her husband, even though Mrs Jones was the actual owner of the property. This produced a legal consequence as it affected the appellants with a conduct on the part of the husband in relation to his wife which raised equities in her favour against the indication of a mortgage. The husband exercised undue influence on Mrs Jones to procure her signature to the mortgage which consisted of no consideration. The plaintiff brought proceedings against the defendant upon a contract to pay interest and principal contained in the mortgage over the property at Walkerville owned by Mrs Jones. It was understood that Mrs Jones executed the mortgage without understanding the effect of the contract and presumed various false misrepresentations. She argued that the mortgage which she s...
A Lithuanian lawyer is sought to read over the contract. for the purchase of their house. Jurgis is suspicious when the lawyer and the agent are on a first-name basis. However, when the lawyer tells him that it is a legal and fair document, Jurgis. believe him to be true. The lawyer does not tell him of the loopholes that will eventually lead to the loss of the house.
However prior to the modern understanding of Consumer Rights there was a understanding of Caveat Emptor – Buyer Beware –this has been a fundamental premise of consumer wellbeing prior to World War ‖ , relation to transactions, principle that the buyer purchases at his own risk in the absence of an express warranty in the contract . This common law rule assumes that buyers and sellers are in an equal bargaining position. However there has been evident change in consumer rights which have contributed to the precedence of using Caveat Emptor is no longer acceptable, apparent in the case ACCC v Hewlett Packard Australia (HP), illustrated that no longer can a company ...
A recent case decision from the Delaware Court of Chancery, Cigna Health and Life Ins. Co. v. Audax Health Solutions, Inc., called into question the use of special provisions in the letter of transmittal to bind non-signatory shareholders, and the use of a post-closing indemnification provision, contained in a merger agreement, that is not limited in duration or subject to a monetary cap.
The company Builder Square, Inc. was in the market to sell, subletting, or leasing vacant K-mart stores, in-turn found Network Group to carry out this process throughout the Ohio area. A deal was struck that Reisenfeld’s with the company Network that they would receive $1 per square foot for a store that was subleased totaling $260,320 in commissions. Unfortunately, Network’s sole shareholder was defrauding BSI in various ways. As a result, that Reisenfeld’s was left high and dry, with no money from the commission. After having a suit brought against Reisenfeld’s, and BSI stated that under restitution (unjust enrichment). Under Ohio law, there are three elements for quasi-contract claim. There must be (1) a benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; (3) retention of the benefit by the defendant under circumstances where it would be unjust to do without payment (Kubasek, 2015, p. 313). It is the third one that the disagreement was based on was having the problem with; whether it would be unjust for BSI to retain the benefit it received without paying Reisenfeld’s for it. The courts ruled that Reisenfeld’s may seek payment from BSI under quasi-contract theory this in fact overruled the trial court’s judgment.
Macintyre, S. (1987), Holt and the Establishment of Arbitration: An Australian Perspective, New Zealand Journal of Industrial Relations, 12(3): 151-159.
A glaring question raised from the inspection of institutional rules on arbitration is whether privacy and confidentiality are different or not. To answer this very question, a crucial distinction should be made between both the terms. They have been presumed to be the core principles of any arbitral proceedings; this does not mean these two different concepts are implied to be one and the same thing. In fact they are corollaries to each other, since the reason of privacy is the concern for confidentiality. Privacy will be meaningless without confidentiality. Various scholars have made quite a number of distinctions as to what is exactly the concept of privacy and confidentiality.
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Both the common law and the statutory law have recognized the weaker position of consumers. It is well established an exclusion clause will be valid and enforceable only if it is incorporated in the contract, use clear wordings and does not contravene statutory limits. In order to limit the unfairness resulting from exclusion clauses, the courts have developed certain principles such as the doctrine of non est factum in signature cases, ‘red ink-red hand’ principle in relation to ‘onerous or unusual’ terms, contra proferentem rule when interpreting ambiguous exclusion clauses and ‘fundamental breach’ principle.
Advantages and Disadvantages of Alternative Dispute Resolution. Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.
An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy. Bibliography Byars, L. L. (1997). The.
In the world of commerce, employment, and other social relations, businesses and individuals strive to choose either arbitration or mediation (conciliation). There are situations when parties submit their cases to arbitration bodies for mediation and, vice versa, when mediators are requested to resolve the dispute through the arbitration award. The arbitration and mediation traditions vary from jurisdiction to jurisdiction, but their general ideas still remain similar. However, while a mediator in a single process possesses no entitled authority to render an award, an arbitrator is vested with more procedural powers and can execute a mediator’s functions. Furthermore, despite the flexibility of arbitration and mediation procedures, as well
Gies, T. P., & Bagley, A. W. (2013). Mandatory arbitration of employment disputes: What's new and what's next?. Employee Relations Law Journal, 39(3), 22-33.
The Arab-Israeli conflict is a struggle between the Jewish state of Israel and the Arabs of the Middle East concerning the area known as Palestine. The term Palestine has been associated variously and sometimes controversially with this small region. Both the geographic area designated by and the political status of the name have changed over the course of some three millennia. The region, or a part of it, is also known as the Holy Land and is held sacred among Jews, Christians, and Muslims. In the twentieth century it has been the object of conflicting claims of Jewish and Arab national movements, and the conflict has led to prolonged violence and in several instances open warfare opposing Israel's existence. These wars, which occurred during the years of nineteen forty-eight to nineteen forty-nine, nineteen fifty-six, nineteen sixty-seven, nineteen seventy-three to nineteen seventy-four, and nineteen eighty-two were complicated and heightened by the political, strategic, and economic interests in the area of the great powers. This fight is the continuation of an Arab-Jewish struggle that began in the early 1900's for control of Palestine. The historic and desirable region, which has varied greatly since ancient times, is situated on the eastern coast of the Mediterranean in southwestern Asia. The strategic importance of the area is immense. Through it pass the main roads from Egypt to Syria and from the Mediterranean to the hills beyond the Jordan River. Palestine is now largely divided between Israel and the Israeli-occupied territories, parts of which are self-administered by Palestinians. The ongoing feud is and was based around competing land claims and the two opposing viewpoints are that the Palestinians lived in the region long before Jews began moving there in large numbers in the late 1800's and that Jews believed they were justified by Zionism. “Chiefly, today’s Palestine question has to do with Jews and Arabs. Over the centuries, both groups have developed deep historical roots in a place both regard as a Holy Land. Both have strong emotional ties to it.” (Carrol, 3) This paper will discuss how discrimination against Arab-Palestinians is justified by Zionism and the results of these actions, the origins, purposes, and effects of the Arab “Intifada,” and what the future holds for the Arabs and Jews living in a race/religion biased land.