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Who Decides the Validity of Your Contract?
Who do you turn to if you believe that an agreement is invalid? Should it make a difference if the agreement contains an arbitration clause? If it does have such a clause, can you nonetheless walk into court and have a judge decide? Or must the dispute go to arbitration? The Catch-22 is this: If an arbitrator were to determine that the agreement is invalid, the arbitrator logically would seem to have no jurisdiction over the matter to start with, because the arbitration clause therein should be invalid too. But if you were to litigate that dispute in court, and a judge determined that the agreement is valid, then an arbitrator should have resolved all disputes pursuant to the arbitration clause therein.
Although the inclusion of arbitration clauses in commercial contracts is a long-standing and prevalent business practice, both state and federal courts in the United States have struggled for some time to determine precisely how, and by whom, those clauses and contracts should be interpreted and enforced. Recently, in Buckeye Check Cashing, Inc. v. Cardegna, the United States Supreme Court stepped into the fray. __ U.S. __, 126 S. Ct. 1204 (Feb. 21, 2006) (Scalia, J.). In a 7-to-1 decision (Justice Alito took no part), the Court ruled that, under the Federal Arbitration Act, 9 U.S.C. ”1-16 (FAA), a general challenge to the validity of a contract as a whole, as opposed to a specific challenge to an arbitration clause within it, has to be decided by an arbitrator and not a court. The Court also held that the ruling applies in state court too, as long as interstate commerce is implicated.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.