Arbitration

Adequate Remedy

An adequate remedy is one that affords complete relief with reference to the particular matter in controversy, and which is appropriate given the circumstances of the case. An adequate remedy has also been described as a remedy that is complete, practical, and efficient, to the prompt administration of justice as is equitable relief. As such, the availability of an otherwise adequate remedy, typically monetary damages, precludes the grant of an injunction.

For example, in a breach of contract case, a court considers putting the harmed party in the same economic position they would have been in had no breach occurred a complete, practical, and efficient remedy. Therefore, a court will not grant specific performance of the contract and will instead order monetary damages unless the contract involved unique goods like artwork.

In property law, it is traditionally assumed that damages are not an adequate remedy for a breach of an agreement to convey real property because real property is assumed to be unique.

Furthermore, to be considered adequate in redressing a constitutional wrong, a remedy must at least give a plaintiffthe opportunity to enter the courthouse doors and present their claim.

In administrative law, to determine whether an adequate remedy exists for final agency action under the Administrative Procedure Act (APA), the court evaluates whether a statute provides an independent cause of action or an alternative review procedure.

Arbitration is one of the most emblematic and growing forms of ADR. Arbitration is more formal than mediation and has a lot of similarities with traditional court proceedings, involving limited discovery and simplified rules of evidence (ex. hearsay is usually admissible in arbitration).

Different types of arbitration exist:

• national arbitration: for example American arbitration, French arbitration or German arbitration which are all governed by different rules enacted by the institutions of each country;
• international commercial arbitration: usually used to settle disputes that arise from commercial contractual relations between buyers and sellers who are in two different states;
• investor-State arbitration: unilateral referral by private individual investors to an arbitral tribunal against a host State of their investment.​

Other types of arbitration and areas of specialization for this ADR exist, such as construction arbitration, post M&A arbitration, etc.

Arbitration relies on the consent of the parties, therefore the arbitration agreement is emblematic because it is the gateway to the particular system that is arbitration. Prior to the dispute occurring, parties usually enter into a binding arbitration agreement or any other form of agreement with an arbitration clause, that allows them to lay out major terms for the arbitration process (number of arbitrators, arbitration forum; arbitration rules; fees etc.).

If parties still have disputes about certain terms before entering into an arbitration they can petition to a court to resolve a dispute. Arbitration can be held ad hoc or with the administrative support from one of the institutional providers like American Arbitration Association (AAA) or JAMS when the arbitration is national.

The arbitration is headed and decided by an arbitral panel or a single arbitrator, depending on the agreement of the parties. Arbitrators do not have to be lawyers, parties can select arbitrators from other fields that they consider more suitable for the resolution of the dispute, which usually occurs when the arbitration deals with a very specialized topic such as construction or pharmaceutical issues. Indeed, parties can for example choose an arbitrator with an engineering background to arbitrate a construction dispute.

To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel or a single arbitrator then deliberates and issues a written binding decision or arbitral award. Opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes. For national arbitration, Title 9 of the U.S. Code establishes federal law supporting arbitration. It is based on Congress's plenary power over interstate commerce. Where Title 9 applies, its terms prevail over state law. There are, however, numerous state laws on ADR. Forty-nine states have adopted the 1956 version of the Uniform Arbitration Act as state law. The act was revised in 2000 and subsequently adopted by twelve states. The arbitration agreement and award is now enforceable under both state and federal law.

In 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or the "New York Convention", was drafted to aid in the enforcement in domestic courts of awards granted in foreign countries. In 1970, the United States joined and, as of November 2021, there are 156 countriesparticipating in the convention.

Collyer Doctrine

Applies when the National Labor Relations Board defers charges (ie. unfair labor practices) to the arbitration process when these charges are brought prior to an arbitration award. The National Labor Relations Board will, under this doctrine, refer...

Compromise

Compromise is an agreement between opposing parties to settle a dispute or reach a settlement rather than continue the dispute or go to trial.

As defined in the Louisiana Civil Code Art. 3071, “a compromise is a contract...