Abstract: Numerous US states (California, Maryland, New Jersey, New York, and Washington, to mention just a few) have recently adopted laws which nullify agreements to arbitrate claims related to employment discrimination and sexual harassment. Although policy reasons behind such laws appear very appealing, the question arises whether such legislation can “survive” in the U.S. federal system, well known for its pro-arbitration policy.
In two recent cases, a New York federal and a New York state court provided two completely different answers to this question. In order to determine which reasoning should prevail, it is necessary to analyse relevant U.S. Supreme Court case law on the scope of application of the Federal Arbitration Act, the doctrine of pre-emption and the notion of arbitrability. This would provide a solid legal basis to critically analyse the existing state laws and offer alternative solutions to achieve the policy goals behind them.
Andrijana Mišović is a University Assistant at the University of Vienna, Faculty of Law – Department of European, International and Comparative Law. Before joining the University, she worked as an associate for an international law firm based in Vienna, specializing in international investment and commercial arbitration. She is a graduate of Harvard Law School (LL.M. 2018) and the University of Belgrade, Faculty of Law (LL.B. 2012, LL.M. 2013).
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