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What is Arbitration?
Arbitration is one type of method of Alternative Dispute Resolution. Unlike litigation, arbitration does not take place in a courtroom. An arbitrator, rather than a judge or jury, decides the award, which is usually final. Additionally, in arbitrations resulting from mandatory arbitration clauses, the company selects the arbitrator.
What is the Importance of Experienced Lawyers in Arbitration Proceedings?
For the past few years, there have been mandatory arbitration provisions in the employment contracts of seamen. This means that seamen can only pursue their personal injury claims against their employer in arbitration proceedings. Arbitration proceedings take away the seamen’s rights to a jury trial granted to them by the Jones Act. The lawyers here at Rivkind Margulies & Rivkind P.A., are very surprised that courts enforce these mandatory provisions despite the fact that the purpose of the Jones Act was to protect the seamen. The Jones Act was remedial legislation, enacted to provide seamen with recourse when they got injured because of their employer’s negligence. It was designed to protect seamen from the unequal bargaining power that exists between seamen and their employer by allowing them a jury trial and the right to selection of the forum in which to file their claim against their employer.
Not only are these arbitration proceedings a significant change from the way seamen used to be able to pursue their claims, these proceedings are also very complex. Those involved in arbitration proceedings will see the vast differences between arbitration and litigation. It is important for those involved in an arbitration proceeding to hire attorneys very experienced in this field. An understanding of your client’s case is not enough. Your attorney should understand arbitration law and all of the kinds of practice, procedures, and technicalities, that go along with it.
Our maritime lawyers at Rivkind Margulies & Rivkind P.A., have extensive experience representing clients faced with mandatory arbitration provisions, especially those involving maritime law. We have successfully represented crewmembers and seamen worldwide that have been injured or harmed on a cruise ship, yacht, tug boat or any other type of vessel throughout the whole arbitration process, yielding only favorable results through verdict or settlement.
Arbitration Clause Enforcement for Seamen From Foreign Countries
The employment contracts of these seamen are labeled international commercial transactions. This subjects the arbitration agreement to Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). In order for the courts to compel arbitration based on the mandatory provision in a seamen’s employment agreement, they must consider four jurisdictional requirements. All four must be met before the Court compels arbitration.
The four prerequisites that must be met are as follows:
- There must be an agreement in writing. The agreement must be within the meaning of the New York Convention;
- The employment contract must make arbitration available in the territory of a signatory of the New York Convention;
- The agreement results from a commercial legal relationship;
- One of the parties to the employment agreement cannot be a citizen of the United States.
Our law firm has faced many motions to compel arbitration in seamen cases. For example, with respect to employment contracts of seamen working on Royal Caribbean Cruise Ships, their employment contract usually has a collective bargaining agreement with a mandatory arbitration provision within the agreement. In this case, the seamen is usually given no choice when signing the employment contract and does not know he or she has given up their rights under the Jones Act. However, courts do not consider this factor when deciding whether the four jurisdictional prerequisites are met. These employment contracts are found on other cruise lines such as Princess, Norwegian and Carnival Cruises, as well as other shipping and boating companies.
Are There Any Ways to Avoid These Mandatory Arbitration Provisions?
Because we believe arbitration provisions for seamen should be held unconscionable and thus unenforceable our first step is to pursue all arguments to avoid arbitration, and to avoid employers of seamen trying to escape their responsibilities under this remedial legislation called the Jones Act. If arbitration is still required, our attorneys at Rivkind Margulies & Rivkind P.A., are highly trained to take you through the process.