Sky Blog
Today [February 24, 2018] is a special day for the [Securities and Exchange Commission’s] Office of the Investor Advocate.[1] I started this job four years ago today, and because I am the first Investor Advocate that is also the …
Courts in many countries, including the U.S., generally enforce contracts with clauses specifying international arbitration as the preferred avenue for resolving disputes. Accordingly, when drafting such provisions, due consideration must be placed on ensuring that such clauses are drafted to …
In the movie Office Space, the (pretty) good guys hatch a plan to divert to themselves fractions of cents that their employer, Initech, has apparently been overcharging its customers by rounding billings upward. Had any customer discovered the scam, he …
On October 1, 2017, new international investment arbitration trial rules (Chinese version) (the “Rules”) issued by the China International Economic and Trade Arbitration Commission (“CIETAC”) became effective. The Rules mark China’s first attempt to establish a domestic arbitral institution for …
Since the CFPB issued its Arbitration Rule in July, most commentators have focused on ways the rule may be blocked from going into effect. Chief among these is the possibility that Congress will vote to overturn the rule under the …
An August 21 blog post, “Shareholders Deserve Right to Choose Mandatory Arbitration,” by Professor Hal S. Scott, argues that the introduction of mandatory arbitration clauses into corporate charters would be good for stockholders. Nothing could be further from the truth.…
On July 17, SEC Commissioner Michael Piwowar extended an important invitation to U.S. public companies. “For shareholder lawsuits,” Piwowar offered, “companies can come to [the SEC] to ask for relief to put… mandatory arbitration into their charters.” To some, this …
It’s been five years since Concepcion made “clear” that the Federal Arbitration Act (FAA) preempts state laws that forbid class action waivers. Concepcion did not protect arbitration agreements from laws of general applicability (such as unconscionability), but it …
The system for resolving domain-name disputes is unique in that it gives the complainant the unilateral ability to choose the arbitration provider. As a result, providers, whether motivated by profit or prestige, have incentives to favor the complainant, a trademark …
In my article The Arbitration Bootstrap,[1] I explain how courts are misinterpreting the Federal Arbitration Act of 1925 (the FAA) in ways that allow firms to use arbitration clauses to render unenforceable contract terms enforceable. Arbitration clauses require …
Following the 2008 financial crisis, more and more countries have begun to embrace whistleblower protections as a tool to change corporate cultures. Such provisions may give whistleblowers the protections they need to raise their voices, and draw attention to undesired …
On May 5, 2016, the Consumer Financial Protection Bureau (“CFPB”) proposed a rule that would govern two aspects of consumer finance dispute resolution. First, the new regulations would prohibit providers of certain consumer financial products and services from including in …
Intra-corporate dispute (ICD) arbitration may cover a wide range of disputes between shareholders, between shareholders and the company, and between shareholders and third parties such as the company directors. ICD arbitration has been practiced in the US for many years …
In 2015, Delaware adopted the Delaware Rapid Arbitration Act (DRAA). The DRAA replaced Delaware’s system of Court of Chancery arbitration (under which Court of Chancery judges could serve as arbitrators in confidential arbitration proceedings), which had been held unconstitutional as …
Arbitration as a means of dispute resolution is intended to help consumers and businesses save time and money and achieve fair results when compared to traditional litigation. Millions of contracts for consumer financial products and services have a pre-dispute arbitration …
On October 7, 2015, the United States Consumer Financial Protection Bureau announced that it is “launch[ing] a rulemaking process” that is intended to impede the use of “pre-dispute arbitration agreements for consumer financial products and services.”[1] The proposal currently …
Takeover disputes can be fiercely contested. Given this, there is an important question about the forum for these disputes. Traditionally, takeover disputes were resolved by the courts. However, in recent years, there has been a trend to have these disputes …
The Delaware Rapid Arbitration Act (DRAA)—which provides a streamlined arbitration process that will allow for prompt, cost-effective resolution of business disputes—was passed by the Delaware House of Representatives on March 19, 2015, and the Delaware Senate on March 31, 2015, …
On March 10, 2015, the Consumer Financial Protection Bureau (CFPB) released a much anticipated report regarding the use of pre-dispute arbitration clauses (sometimes referred to as “mandatory” arbitration clauses). The use of these clauses is fairly common in the consumer …
The Delaware Corporation Law Council—composed of members of the Delaware bar charged with proposing annual amendments to the Delaware General Corporation Law (DGCL)—has proposed several potentially significant amendments to the DGCL. Among other things, the amendments would seek to prohibit …