An employee may be forced to
arbitrate a claim only if the employee knowingly agrees to submit such a claim to arbitration.
Courts have been less than consistent, however, in their approach to whether commercial tort claims, such as fraud in the inducement, misrepresentation, conspiracy, etc., which often are raised in the course of reinsurance disputes, must be arbitrated.(16) At times, a court will conclude that some, but not all, of the claims at issue are subject to arbitration.(17) Of course, the parties always have the option of agreeing to
arbitrate all their claims, including those that would not be arbitrable but for that agreement.
An agreement to
arbitrate entered into at the beginning of the employment relationship is likely to be enforceable under the FAA or state law, because the job that the employer gave the employee is consideration for the agreement to
arbitrate.
Thus, if a party changes its mind later about going to arbitration, it may be stuck unless the other side also wants to waive its right to
arbitrate under the agreement.
"[...] [T]he bulk of international authority supports our view that the provision functions as a purely procedural precondition to
arbitrate. See 1 G.
Within very broad limits, parties to an agreement to
arbitrate are free to fashion any agreement they wish.
An agreement to
arbitrate that had been agreed without specific authority provided in the power of attorney is sanctioned by a relative nullity of the agreement to
arbitrate that only the grantor of the power of attorney has the right to raise.
Section(s) 2 [of the FAA]." "The issue of 'whether a valid written agreement to
arbitrate exists' is controlled by principles of state contract law." (5)
According to Reuters, Merrill Lynch, a unit of Bank of America Corp (NYSE: BAC), was fined for failing to
arbitrate disputes with employees regarding retention bonuses.
Once a dispute arises, the parties may still mutually agree to
arbitrate, but the odds of that happening are small.
On 20 March,aEcuador has formally requested a panel to
arbitrate its conflict with the EU, following the complaint filed to the WTO on 16 November 2006.
Acas has also been called in to
arbitrate in a dispute over the time shop stewards can devote to union duties.
By agreeing, for example, that the Federal Arbitration Act (rather than Arkansas law) will apply, the parties can agree to
arbitrate tort claims.
Hilltop also argued that the plaintiffs had to individually
arbitrate their claims.