Arbitration by Door Posting?

Dan Barnhizer (Michigan State) posted yesterday on the Contracts list serve this photo sent to him from a student that saw it at a Whataburger. The text reads:

"Arbitration Notice"
"By entering these premises, you hereby agree to resolve any and all disputes or claims of any kind whatsoever, which arise from the products, services or premises, by way of binding arbitration, not litigation. No suit or action may be filed in any state or federal court. Any arbitration shall be governed by the FEDERAL ARBITRATION ACT, and administered by the American Mediation Association.
"Arbitration Notice"

Naturally, this raises many questions about consent to abitration, class action arbitrations and rules that might even apply to any such disputes. And, of course, Barnhizer asked "what they do for drive-through customers?"

- JSM

The CISG and the Vis International Moot: Twin Ideas for Effective Lawyering in a Globalized World

This year marks the 17th anniversary of the Willem C. Vis International Commercial Arbitration Moot (The Moot.) The Moot takes place annually in the Spring in Vienna, Austria with participants from over 100 law schools hailing from civil and common law countries. The journey is not only a milestone for the student participants, but a bridge to international understanding through the rule of law. The Moot engages students in the art of effective advocacy, and conveys the important message that the adversarial process is not necessarily an arena for gladiators.

The stated goal of the Moot is "to foster the study of international commercial law and arbitration for the resolution of international business disputes through its application to a concrete problem of a client and to train law leaders of tomorrow in methods of alternative dispute resolution." (www.cisg.law.pace.edu/vis.html).

I was privileged to participate in the Ninth Moot in 2001-2002, while a student at the University of Pittsburgh School of Law. One year later, I served as coach to a group of students at the Meiji Gakuin University in Tokyo, Japan. Both events galvanized the premise that law schools in the United States need to engage students in this level of competition to enhance legal education. Specifically, participation in the Moot will bolster legal writing and advocacy skills. The message is being heard as each year, more law schools are discovering the Moot. Some law schools in the United States and Europe have incorporated the Moot into the curriculum. For example, Touro Law School and the University of Pittsburgh have collaborated with schools in Central and Eastern Europe to offer a summer program structured around the Moot. (www.law.pitt.edu/academics/cile/jdprogram/studyabroad).

In the area of advocacy, preparation for the Moot will be extremely beneficial, even to first year law students. In this critical area, the Moot provides students with skills in the art of persuasion. Not only do particpants learn to write persuasive arguments, but they develop, and hone the nuances of rhetoric on the international stage. The Moot is organized around a contractual problem, which asks students to analyze the articles of the United Nations Convention on the International Sale of Goods (CISG) (www.uncitral.org). As such, students are exposed to the work of the United Nations Commission on International Trade Law, and acquire the added bonus of exposure to comparative legal systems. Specifically, for U.S. law students comparing the rules of Article 2 of the UCC with the CISG is both challenging and exciting. As a result, participants in the Moot develop critical skills in international commercial law that even seasoned lawyers lack.

Moreover, the CISG is at the heart of the Moot. This treaty espouses the theory that economic rights are human rights. The treaty provides uniform rules governing certain aspects of the making and performance of everyday commercial contracts for the sale of goods. Article 7 of the CISG provides that "the adoption of uniform rules, which govern contracts for the international sale of goods should take into account the different social, economic and legal systems." The CISG was created to foster the development of international trade on the basis of equality and mutual benefit as an important element in promoting friendly relations among states. The CISG aims to promote international trade by removing legal barriers in international trade, and to unify the sales law of international trade.

Although the focus of the moot is commercial arbitration, the format of the Moot serves several pedagogical needs. Foremost among them is a focus on the representation of clients from diverse backgrounds and diverse legal systems. In this age of globalization and multiculturalism, the Moot provides ample opportunity for students' exposure to crucial interpersonal lawyering skills. Participation in the Moot exposes students to principles of fairness in international contracts, which will instill an awareness of multiculturalism and widen the lenses of their worldview. In addition, the Moot provides students with the opportunity for research and writing, oral adovacy and treaty interpretation.

Each year, the Moot problem focuses on issues of contract drafting, which helps students understand choice of law issues. In the practical context, students learn the importance of effective drafting. These issues allow students to grapple with civil and common law systems of procedure. Although the advocacy space is based primarily on arbitration principles, this forum provides participants with the rhetorical skills needed for effective advocacy, albeit in a non-confrontational and less adversarial manner. In addition, preparation for the Moot can bolster student confidence, and help prepare them for oral advocacy.

Finally, the tenets of multicultural lawyering form the bedrock of the CISG. As outlined in its preamble, the overarching goal of the CISG is to erase disparities in international trade. The CISG espouses the principles of effective lawyering through its emphasis on the use of simpler, clearer language in international contracts. According to Professor Harry Flechtner, the CISG seeks the "ommission of awesome relics through its push for a unified language in the drafting of international contracts." See John Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention 30 (Harry Flechtner ed., 4th ed. 2009). This transformative capacity of the Vis Moot and the CISG to improve communication across cultures and transfer the rule of law around the globe will enhance the law school experience, and add value to the lawyering process for law students and practitioners.

Loaded Questions

On April 2, the Institute for Legal Reform released the results of a consumer survey that indicated consumers oppose legislation regulating the use of binding arbitration in consumer disputes (the proposed Arbitration Fairness Act). The telephone poll found that 71 percent of likely voters oppose efforts by Congress to ban arbitration agreements from consumer contracts. 82 percent actually prefer arbitration to litigation as a means to settle a serious dispute with a company. The American Association for Justice says its survey shows the opposite. 81 percent of Americans express disapproval of mandatory binding arbitration. 64 percent of voters favor the legislation, 26 percent oppose it. How can this be?

Here's one of the statements made as part of the American Association for Justice poll:

"As you may know, consumers are sometimes required to sign a contract with a company when they buy certain services or products such as automobiles, cell phones, or nursing home care. Today, these contracts often include a binding arbitration provision, which says that the consumer agrees to have any dispute with the company decided by an independent arbitrator in binding arbitration, rather than by a judge or jury in a civil legal proceeding. Do you approve or disapprove of these binding arbitration provisions in consumer contracts?"

Now here's one from the Institute for Legal Reform poll:

"Now suppose for a moment you had to sign a contract with a company when you purchased their goods or services. If you could choose the method by which any serious dispute would be settled between you and the company, which would you choose? Arbitration, which does not require going to court ...or... Litigation, which does require a lawsuit and going to court. "

Hat tip to Consumer Law and Policy Blog.

Neither statement provides an intelligent person with the information necessary to answer the question. If I ever get a call from a poll taker, I'd want to know what my "right to go to court" costs me in terms of the price I pay for consumer goods and services. I'd ask about the odds for consumers in arbitration vs. judicial resolution of their disputes. I'd want to know what was in it for me — apart from empty rhetoric about my right to "go to court" or vague inferences about the relative "fairness" of arbitration vs. adjudication. And, in the extremely unlikely event that I did not hang up on the poll taker within seconds after he mispronounces my name, I'd resent being used as a tool for others whose stake in the controversy dwarfs that of the average consumer.