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Arbitration
Your Skills: Preparing to Win at Arbitration
October 10, 2013
It's your first, or one of your first, arbitrations. It may have started as a court lawsuit and was compelled to arbitration on a motion, or it may have started with a demand for arbitration pursuant to the client's contract providing for arbitration of disputes instead of court litigation. Either way, in order to get a successful result, the case assessment and strategy requires understanding how arbitration is fundamentally different from a case to be tried in state or federal court. Because...
October 10, 2013
It's your first, or one of your first, arbitrations. It may have started as a court lawsuit and was compelled to arbitration on a motion, or it may have started with a demand for arbitration pursuant to the client's contract providing for arbitration of disputes instead of court litigation. Either way, in order to get a successful result, the case assessment and strategy requires understanding how arbitration is fundamentally different from a case to be tried in state or federal court. Because...
Texas Supreme Court Declines to Review Arbitration Order in Natural Gas Case
September 25, 2013
The Supreme Court of Texas has declined to review a First District Court of Appeals decision requiring arbitration in a natural gas contract dispute. In Enterprise Field Services, LLC v. TOC-Rocky Mountain, Inc., No. 01-12-00345-CV (Tex. App. 1st February 28, 2013), Houston’s First Appellate District compelled the case to arbitration despite that arbitration was not expressly required under the parties’ agreement because the dispute could not be decided without considering another contract...
September 25, 2013
The Supreme Court of Texas has declined to review a First District Court of Appeals decision requiring arbitration in a natural gas contract dispute. In Enterprise Field Services, LLC v. TOC-Rocky Mountain, Inc., No. 01-12-00345-CV (Tex. App. 1st February 28, 2013), Houston’s First Appellate District compelled the case to arbitration despite that arbitration was not expressly required under the parties’ agreement because the dispute could not be decided without considering another contract...
Motion Practice in Arbitrations
September 17, 2013
Perhaps stalwarts of arbitration would prefer the issue put as a question: Should motion practice be part of arbitrations? Certainly, some would argue that the answer to the question should be “no,” fearing that allowing some type of motion practice in arbitrations would be yet another sign that arbitrations have morphed into litigation. But the reality is that discovery motions and dispositive motions are becoming a staple in more complex arbitrations; and they are being filed in even less complex...
September 17, 2013
Perhaps stalwarts of arbitration would prefer the issue put as a question: Should motion practice be part of arbitrations? Certainly, some would argue that the answer to the question should be “no,” fearing that allowing some type of motion practice in arbitrations would be yet another sign that arbitrations have morphed into litigation. But the reality is that discovery motions and dispositive motions are becoming a staple in more complex arbitrations; and they are being filed in even less complex...
A Rose by Any Other Name
August 23, 2013
Most of the leading law school textbooks explain arbitration by describing a case where a party suffers a loss and there is a dispute between the insurance company and the insured. The insured typically places a high value on the subject of the loss, while the insurance company places a lower value. A third party is called in to offer an opinion about the value of the loss and the parties agree to be bound by that third party’s opinion. Sometimes the parties each choose an appraiser and the two appraisers...
August 23, 2013
Most of the leading law school textbooks explain arbitration by describing a case where a party suffers a loss and there is a dispute between the insurance company and the insured. The insured typically places a high value on the subject of the loss, while the insurance company places a lower value. A third party is called in to offer an opinion about the value of the loss and the parties agree to be bound by that third party’s opinion. Sometimes the parties each choose an appraiser and the two appraisers...
Empowering the Growth of International ADR
July 18, 2013
This is the final posting of a 3-part series. Previous posts in the series noted the gathering tempest being whipped up by opacity in ADR practice. How can structural change help the ship steer towards modernity? User demand for more information and higher professional standards in ADR is unequivocal. An international institution is needed to address the global user demand, particularly in arbitration, conciliation and similar methods of resolving international commercial disputes. That institution...
July 18, 2013
This is the final posting of a 3-part series. Previous posts in the series noted the gathering tempest being whipped up by opacity in ADR practice. How can structural change help the ship steer towards modernity? User demand for more information and higher professional standards in ADR is unequivocal. An international institution is needed to address the global user demand, particularly in arbitration, conciliation and similar methods of resolving international commercial disputes. That institution...
Roadmap: When Should You Choose JAMS, AAA or CPR Rules?
July 11, 2013
Albert Einstein supposedly once said “you have to learn the rules of the game. And then you have to play better than anyone else.” In arbitration, that means figuring out which organizations’ rules are best suited for your arbitration clause. This post is designed to help drafters make that decision by giving a quick and dirty overview of the similarities and differences between the administered rules for commercial disputes at the three most common arbitration providers: AAA, JAMS, and CPR. Generally...
July 11, 2013
Albert Einstein supposedly once said “you have to learn the rules of the game. And then you have to play better than anyone else.” In arbitration, that means figuring out which organizations’ rules are best suited for your arbitration clause. This post is designed to help drafters make that decision by giving a quick and dirty overview of the similarities and differences between the administered rules for commercial disputes at the three most common arbitration providers: AAA, JAMS, and CPR. Generally...
12 Ways to Achieve Efficiency and Speed in Arbitration
June 28, 2013
Some lament that arbitration has become too much like litigation—protracted and expensive. This article suggests a dozen ways that corporate counsel can keep domestic arbitration from evolving into its evil twin. 1. A LITTLE PLANNING GOES A LONG WAY All too often an arbitration clause, removed from the critical path of negotiations, merely states that disputes will be arbitrated pursuant to institutional rules vesting the arbitrator with unbridled discretion regarding extent of discovery and schedule....
June 28, 2013
Some lament that arbitration has become too much like litigation—protracted and expensive. This article suggests a dozen ways that corporate counsel can keep domestic arbitration from evolving into its evil twin. 1. A LITTLE PLANNING GOES A LONG WAY All too often an arbitration clause, removed from the critical path of negotiations, merely states that disputes will be arbitrated pursuant to institutional rules vesting the arbitrator with unbridled discretion regarding extent of discovery and schedule....
Invalid Attorney’s Fee Provision Severed and Arbitration Compelled
June 17, 2013
An arbitration provision in an employment agreement provided that the “costs and expenses of the arbitration, including the arbitrator’s fees, shall be borne equally by the parties.” The court held the provision invalid because it would have prevented the plaintiff, if successful, from recovering attorneys fees as provided for in Title VII. However, the court severed the invalid provision and compelled arbitration. Adams v. Republic Parking System, Inc., Case No. 12-1310 (USDC W.D. Okla. April...
June 17, 2013
An arbitration provision in an employment agreement provided that the “costs and expenses of the arbitration, including the arbitrator’s fees, shall be borne equally by the parties.” The court held the provision invalid because it would have prevented the plaintiff, if successful, from recovering attorneys fees as provided for in Title VII. However, the court severed the invalid provision and compelled arbitration. Adams v. Republic Parking System, Inc., Case No. 12-1310 (USDC W.D. Okla. April...
After Blocking Mediation, Party Cannot Use Lack of Mediation to Prevent Arbitration
May 30, 2013
In confirming a foreign arbitral award, a federal court concluded that the question whether the parties’ dispute resolution...
May 30, 2013
In confirming a foreign arbitral award, a federal court concluded that the question whether the parties’ dispute resolution...
Choosing A Forum For Dispute Resolution
May 29, 2013
To the best of our knowledge, funding contracts generally require arbitration to resolve disputes. While arbitration has significant appeal, it may not always be the optimal arrangement for reasons laid out below. Therefore, the model contract defaults to New York courts as the forum for dispute resolution. Arbitration’s Appeal and Downsides Arbitration has one significant advantage over courts: secrecy (confidentiality). Even the fact of the dispute can be kept secret, which preserves...
May 29, 2013
To the best of our knowledge, funding contracts generally require arbitration to resolve disputes. While arbitration has significant appeal, it may not always be the optimal arrangement for reasons laid out below. Therefore, the model contract defaults to New York courts as the forum for dispute resolution. Arbitration’s Appeal and Downsides Arbitration has one significant advantage over courts: secrecy (confidentiality). Even the fact of the dispute can be kept secret, which preserves...
