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> in all likelihood, most real companies will flatly refuse mandatory binding arbitration That's not correct, Thomas. All kinds of big and small companies inc
by dctoedt 14y ago
> in all likelihood, most real companies will flatly refuse mandatory binding arbitration
That's not correct, Thomas. All kinds of big and small companies include mandatory binding arbitration provisions in B2B and especially B2C contracts.
(In B2C contracts, a big part of the appeal of an arbitration provision is that the U.S. Supreme Court recently said, in AT&T Mobility v. Concepcion [1], that B2C contracts can essentially eliminate consumer class-action lawsuits by requiring individual arbitrations and jumping through a few minor hoops.)
[1] http://en.wikipedia.org/wiki/AT%26T_Mobility_v._Concepcion http://en.wikipedia.org/wiki/AT%26T_Mobility_v._Concepcion; see also http://scholar.google.com/scholar_case?case=17088816341526709934 http://scholar.google.com/scholar_case?case=1708881634152670...
- tptacek 14y agoI don't mean to dispute that B2B contracts often include arbitration clauses (though obviously I did just that; sorry). Clearly they do. I'm disputing that an (e.g.) freelancer has a chance in hell of getting arbitration into a real company's master agreement that didn't already include arbitration. You're the expert: what do you think the odds are here? My experience is limited to watching the redlines ping-pong over simple choice of state law in our own contracts. I think this is a cool idea for a business, by the way.
- dctoedt 14y agoIf I were representing the "real company" Thomas mentions, I would absolutely recommend that my client consider a suitably-designed arbitration provision for a freelance designer agreement. Not least, I'd welcome the chance to put disputes into an informal, comparatively-inexpensive forum, where the risk of a runaway jury deciding the case mainly out of sympathy for the freelancer is essentially eliminated. I would almost certainly object, though, to the ex aequo et bono standard that judge.me proclaims --- that standard, in essence, gives the arbitrator carte blanche to do whatever seems good in his or her eyes, regardless what the contract or the law says. That, coupled with the extremely-limited right of appeal of arbitration decisions, could definitely be a show-stopper. For those interested, as part of the materials for a law-school course I teach, I've posted an extensively-annotated model arbitration provision [1]. [Disclosure: My wife is a full-time labor- and employment arbitrator.] [1] http://www.techlawnotes.com/docs/Common-Draft-2012-02-15.pdf#page=170 http://www.techlawnotes.com/docs/Common-Draft-2012-02-15.pdf...
- peterjancelis 14y agoYour concern is exactly why public arbitrator profiles are my number one priority now. Arbitrator reputation should overcome the randomness concern.
- tptacek 14y agoAlso: in a professional services context? It's your experience that mutual binding arbitration is common in B2B professional services contexts? My thinking here: even a website redesign puts outside people into contact with confidential business information, poachable employees, company IP, and liability if the website e.g. includes IP from other companies.
- dctoedt 14y ago> It's your experience that mutual binding arbitration is common in B2B professional services contexts? It's certainly not uncommon. > even a website redesign puts outside people into contact with confidential business information, poachable employees, company IP, and liability if the website e.g. includes IP from other companies. All the more reason for arbitration, which by agreement can be made private and confidential, whereas confidentiality in litigation can be very dicey under open-court laws [1]. [1] See, e.g., http://www.nytimes.com/1990/04/23/us/texas-high-court-cuts-into-secrecy-in-civil-suits.html http://www.nytimes.com/1990/04/23/us/texas-high-court-cuts-i...
- tptacek 14y agoWell then! Live & learn. Glad you commented. Thanks!