Arbitration Drafting Arbitration Agreements and Clauses 3

Question 1

Under the Supreme Court's ruling in AT&T Mobility LLC v. Concepcion (2011), which state-law doctrine was preempted by the FAA?

Accepted Answer

A California rule that found class arbitration waivers unconscionable in consumer contracts

Answer

In Concepcion, the Supreme Court held the FAA preempted California's Discover Bank rule, which treated class arbitration waivers in consumer contracts as unconscionable.

Question 2

What is the primary purpose of including a confidentiality clause in an arbitration agreement?

Accepted Answer

To prohibit parties from disclosing the existence, proceedings, or award of the arbitration to third parties

Answer

Confidentiality clauses protect sensitive business information by prohibiting disclosure of arbitration proceedings, evidence, and awards outside the proceeding.

Question 3

What does a 'delegation clause' within an arbitration agreement accomplish?

Accepted Answer

It assigns the question of arbitrability itself to the arbitrator rather than a court

Answer

A delegation clause expressly commits to the arbitrator (not a court) the threshold question of whether a particular dispute is subject to arbitration.

Question 4

Why might a drafter choose a 'filing fee cap' provision in a consumer arbitration agreement?

Accepted Answer

To limit the claimant's upfront costs and reduce the risk that the clause will be struck down as unconscionable

Answer

Capping filing fees for consumers removes a potential unconscionability argument that cost barriers effectively deny them access to a dispute resolution forum.

Question 5

Which international convention governs the recognition and enforcement of foreign arbitral awards and is frequently referenced in international arbitration clauses?

Accepted Answer

The New York Convention (1958)

Answer

The 1958 New York Convention requires its 170+ signatory states to recognize and enforce foreign arbitral awards, making it the cornerstone of international arbitration enforcement.

Arbitration - Arbitration and Dispute Resolution Certification Practice Test

Arbitration - Arbitration and Dispute Resolution Certification Practice Test

Arbitration Drafting Arbitration Agreements and Clauses 3