2006/Vol. 5 No.1 - Hamline Law - Hamline University

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44 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1 Another issue relating to arbitrability, which may require consideration at a pre-hearing conference, involves whether parties are free to submit statutory claims to arbitration. Statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. 175 The United States Supreme Court has held that antitrust 176 and RICO 177 claims are among the statutory claims that parties may agree to arbitrate. The Court said “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” 178 At the pre-hearing conference, an arbitrator may be tempted to put on a mediator’s hat. Should an arbitrator attempt to mediate a dispute during pre-arbitration hearings? Should he/she use med-arb as a technique? There is much debate on the matter. Most arbitrators avoid on the parties even if the main contract is void.” Janet A. Rosen, Arbitration Under Private International Law: The Doctrines of Separability and Competence de la Competence, 17 FORDHAM INT’L L.J. 599, 607 (1994). For the arbitration clause to be struck down, the fraud must go to the making of the arbitration clause itself. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402 (1967) (stating that arbitration clauses “are ‘separable’ from the contracts in which they are embedded, and that where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud”); Republic of Nicaragua v. Standard Fruit Co., 937 F.2d 469, 477 (9th Cir. 1991); Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348, 350 (7th Cir. 1983). 175. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991). The Court in Gilmer stated that “[i]t is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.” Id. at 26. The Court held that claims under the Age Discrimination in Employment Act were arbitrable. Id. at 35. See also EEOC v. Waffle House, Inc., 534 U.S. 279, 296 (2002) (holding that claims brought by employee against employer may be subject to arbitration under the Americans with Disabilities Act, but such arbitration does not interfere with the EEOC’s right to bring a claim in court on behalf of the employee); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 619-20 (1985) (holding that claims under the Sherman Antitrust Act are arbitrable). 176. Mitsubishi Motors Corp., 473 U.S. at 629 (recognizing that “concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties’ agreement [to arbitrate their antitrust claims]”). 177. Shearson /Am. Express, Inc. v. McMahon, 482 U.S. 220, 242 (1987) (finding “no basis for concluding that Congress intended to prevent enforcement of agreements to arbitrate RICO claims,” and thus, a “RICO claim is arbitrable under the terms of the [Federal] Arbitration Act”). 178. Mitsubishi Motors Corp., 534 U.S. at 628.
2006] ARBITRATION: THE BASICS 45 attempting to mediate the dispute. 179 But some commentators argue that it is appropriate for the arbitrator to assume the hybrid role of mediator/arbitrator, 180 especially during the pre-hearing conference. 181 VII. THE HEARING A. The Place An arbitration hearing can be scheduled anywhere in the world. 182 Considerations similar to those for “forum non conveniens” govern the selection of an appropriate place for an arbitration. The Supreme Court set forth factors used to determine “forum non conveniens,” including: [T]he relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. 183 Arbitration proceedings are not limited, like a trial, to a courtroom. They can be held in any convenient place. Arbitration proceedings can be held in a principal place of business, a hotel, a conference center, a lawyer’s office, or any other place that is convenient for the parties and the arbitrator. If the parties are working with an arbitration agency, such as the AAA, ICC, or LCIA, there are facilities provided by the agency. 179. See CARBONNEAU, supra note 14, at 10-11 (criticizing the evolution of arbitration beyond the traditional process, and med-arb specifically). 180. See JOHN W. COOLEY, ARBITRATION ADVOCACY 3 (2d ed. 2003). 181. Id. at 90. For more information on med-arb, see JOHN W. COOLEY, MEDIATION ADVOCACY § 1.1 (2d ed. 2002). Med-arb (mediation-arbitration) is a hybrid process in which the parties first mediate their dispute with the assistance of a third-party neutral. Id. Once mediation is completed, the parties submit any unresolved issues to arbitration. Id. The same party may conduct both the mediation and arbitration, or the parties may select a different neutral to conduct the arbitration. Id. Med-arb is different than traditional mediation because “it gives the mediator the power to decide the matter for the parties if they are unable to do so themselves. Med-arb also differs from traditional arbitration because the mediator’s role extends past that of serving only as a private judge.” Christopher Honeyman & Ellen A. Waldman, San Diego Moveable East: Competition in Cooperation- Building, 5 CARDOZO J. CONFLICT RESOL. 173, 185 (2004). 182. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974). 183. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
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2006/Vol. 5 No.1 - Hamline Law - Hamline University

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