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Because arbitration is a matter of contract, the district court turned to the plain language of the agreement. However, unlike previous cases, the contract in question carved out an exclusion. Denying the motion to compel arbitration. On appeal, the Fifth Circuit affirmed the decision on other grounds. Henry Schein Inc. The AAA rules seem clear. The Arbitrator shall have the power to rule on his or her own jurisdiction including any objections to the existence, scope, or validity of the arbitration agreement. The majority of lower courts have come to the opposite conclusion, finding that invocation of the AAA rules grants exclusive authority to the arbitrator.

Law of International Commercial Arbitration did not mince words. Typically, these provisions are relatively simple and, like the AAA rules, merely state that the tribunal has the power to determine its own jurisdiction. Constraining the power of the judicial system undoubtedly streamlines the dispute process, at least initially, and deters delay tactics. And while this may be the most efficient process for the international system, U. Indirectly, recent decisions appear to have pushed the U. Yet until a definitive answer is reached within the United States, parties and litigators will remain uncertain and continue to contest the issue.

Arbitration Practice in Construction Contracts 3rd Edition

It is still too early to tell how the recent Supreme Court decision will shape the arbitration landscape going forward. At present, the majority of courts have held that AAA rules exclude judicial authority, similar to a negative competence-competence framework.


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However, there is always the possibility that the trend could swing in the other direction, in accordance with the ALI restatement view, and require more than a bland invocation of AAA rules to dedicate arbitrability issues to the arbitrator. One thing remains clear — when drafting a contract, parties should be sure to use explicit language. The ConsensusDocs form appears to address this issue by including not only a reference to AAA rules, but also a specific indication in the arbitration agreement excluding courts from deciding any issues.

Arbitration Practice in Construction Contracts 5th Edition pdf | LAW EBOOKS

Without similarly definitive language, even if exceptions are carved out for certain claims, the end result may be increased litigation costs with uncertain results. Myriad Group, A. Coverall N. High-Tech Inst.

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He has participated as counsel in more than international arbitrations, including four of the largest ICC arbitrations and several of the most significant ad hoc arbitrations in recent history. Born is uniformly ranked as one of the leading practitioners in the field. He is one of only two lawyers in the world to receive global "starred" status in Chambers rankings for international arbitration. Add selected products to cart. Continue Shopping View Cart. Verification Errors. We're sorry, but you may only purchase products in one currency in a single order.

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