A Valuable Reference Work on Commercial Arbitration

By Jason, Peter D. | Dispute Resolution Journal, February-April 2004 | Go to article overview

A Valuable Reference Work on Commercial Arbitration


Jason, Peter D., Dispute Resolution Journal


A Valuable Reference Work on Commercial Commercial Arbitration. Third edition by Thomas H. Oehmke Published by: West Group (www.westgroup.com)

Commercial Arbitration was originally published in 1987. Now in its third edition, it has grown into a fourvolume set. This edition has 15 parts with 159 chapters and 16 appendices.

Part One provides an overview of alternate dispute resolution, including fact finding and the appraisal process, as well as mediation and arbitration. It also explains the Federal Arbitration Act.

Part Two concerns the process of arbitration. It emphasizes that arbitration is the product of the parties' agreement, not a process imposed upon them. It also contains helpful examples and check lists for the parties to consider before they decide to include an arbitration clause in their agreement. Then, it discusses the need to establish the rules governing the arbitration after the parties have agreed to arbitrate. Considerations of procedural rules, such as those governing arbitrator qualifications, appointment, and selecting the locale, are thoroughly covered.

Thomas Oehmke explains that a contract to arbitrate is subject to the same defenses as any other contract. In one example, an employee filed a grievance alleging that he was terminated for refusing to drive a track. His grievance, which included the defense that he was discharged because of a disability, was arbitrated but his claim was denied. The employee filed a Title VII complaint in federal court seeking to vacate the award and litigate his claim. The employer argued that the employee's claim was barred by the doctrine of resjudicata. But the court found that since the collective bargaining agreement did not grant the arbitrator authority to decide disability discrimination claims, the arbitrator had no authority to decide the employee's grievance. Accordingly, the employee was given a second "bite of the apple" in federal court.

How the contract is drafted will determine some of the defenses to arbitration. In Oehmke's example, the arbitration clause was not drafted broadly enough to constitute a waiver of the employee's right to sue under Title VII.

Oehmke covers a plethora of contract problems, including challenges to the validity of the contract and to the arbitrator's authority under the agreement. Typically, arbitration rules give the arbitrator authority to decide the validity of the contract, but this issue could end up in court. Courts generally are called on to decide whether the arbitrator exceeded the authority granted under the arbitration clause. It is important to draft documents carefully to make sure that the arbitrator's authority is specifically delineated. Otherwise, costly and time consuming disputes may arise.

Once the arbitration award has been issued, the losing party may challenge the enforceability of the award on various grounds, among them unconscionability and fraud. These defenses to enforcement of the award are fully explained.

Part Three addresses arbitrability in general and in specific contexts, such as construction and securities disputes, addressing these topics in separate chapters. Arbitrability is based on the premise that arbitration is a creature of contract, so before a matter can be arbitrated, there must be an agreement to arbitrate and the subject matter has to be within its scope. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Valuable Reference Work on Commercial Arbitration
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.