Keys To Drafting Effective Arbitration Provisions

December 4, 2009Articles Law360

The question of arbitrability is not a novel subject. To the contrary, countless courts, arbitrators and authors have explored this issue.

However, drafting enforceable and effective arbitration provisions for collective bargaining agreements (“CBAs”) has remained a challenge as evidenced by the recent flood of decisions that have addressed whether an issue can proceed to arbitration.

Perhaps the most important of these decisions was issued by the United States Supreme Court this past spring in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (April 1, 2009).

The court addressed whether union members can waive their rights to a judicial forum for statutory employment discrimination claims and be compelled to arbitrate such claims pursuant to the parties’ CBA.

In answering these questions in the affirmative, Pyett held that the CBA’s arbitration provision must “clearly and unmistakably” require union members to arbitrate such claims.


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