Agreement Arbitration Sample With Class Action Waiver In Virginia
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Without a valid arbitration agreement, no arbitration can take place or award can be rendered. In other words, a valid arbitration agreement is the cornerstone of any arbitration proceedings. Townsend, J.M., Drafting Arbitration Clauses: Avoiding the 7 Deadly Sins, Dispute Resolution Journal, 2003, p. 1.
drafted arbitration clause can kill a class action in its infancy. Therefore, when evaluating a consumer class action case, you should attempt to determine whether the putative plaintiff is in a contractual relationship with the defendant business.
See 9 U.S.C. § 1. In Concepcion, the U.S. Supreme Court ruled that class action waivers in arbitration agreements are enforceable.
Under binding arbitration, as is required here, the parties agree to accept the arbitrator's decision as final, limiting their right to seek resolution of the dispute by the court.
A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract.
The Scope of the Clause. This section of the clause is critical; it sets the boundaries for which disputes the tribunal is authorised to determine. Choice of Rules. The Number of Arbitrators. Appointing Authority. Choice of Venue. The language of the proceedings. Finality. Exclusion of the right of appeal.
Unconscionability requires a showing of both a procedural and substantive defect in the document for the agreement to be rendered unenforceable by the court. Procedural unconscionability results from oppression or unfair surprise to one party caused by unequal bargaining power.
So long as a defendant can show a valid agreement to arbitrate and a valid class action waiver, then a putative class action plaintiff will be unable to proceed on a class basis.
If you include an arbitration clause in your contract, you might want to specify the rules for the arbitration proceeding. You can be vague in your rules. For example, you can simply say that the arbitration is: binding.
1 In the context of arbitration, waiver occurs when a party consciously and intentionally gives up its right to arbitrate a particular dispute, thereby choosing litigation as the preferred method of dispute resolution.