Forum Selection
Protecting Arbitral Jurisdiction of The Merits With a Foreign Anti-suit Injunction
November 5, 2013
The pro-arbitration foreign anti-suit injunction is not mentioned in the text of the New York Convention or the U.S. Arbitration Act (FAA). But its importance to the enforcement of agreements to arbitrate transnational disputes is considerable. To be reminded of this, read a recent New York federal district court decision granting such an injunction:Bailey Shipping Ltd. v. American Bureau of Shipping, 2013 WL 5312540 (S.D.N.Y. Sept. 23, 2013). Or continue reading this Commentary. A definitional...
November 5, 2013
The pro-arbitration foreign anti-suit injunction is not mentioned in the text of the New York Convention or the U.S. Arbitration Act (FAA). But its importance to the enforcement of agreements to arbitrate transnational disputes is considerable. To be reminded of this, read a recent New York federal district court decision granting such an injunction:Bailey Shipping Ltd. v. American Bureau of Shipping, 2013 WL 5312540 (S.D.N.Y. Sept. 23, 2013). Or continue reading this Commentary. A definitional...
Contrasting U.S. Litigation and International Arbitration
October 31, 2013
American litigators know that there is often a tortuous road between the filing of the complaint and trial. The parties’ positions, and how each side views the facts, tend to evolve through the initial pleadings, amended pleadings, motions to dismiss, documentary discovery, depositions, summary judgment motions, pretrial submissions, motions in limine, pretrial statements, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment motions...
October 31, 2013
American litigators know that there is often a tortuous road between the filing of the complaint and trial. The parties’ positions, and how each side views the facts, tend to evolve through the initial pleadings, amended pleadings, motions to dismiss, documentary discovery, depositions, summary judgment motions, pretrial submissions, motions in limine, pretrial statements, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment motions...
The Pros and Cons of ADR Clauses
October 25, 2013
Employers across the country have witnessed a flurry of significant decisions in recent years culminating in several U.S. Supreme Court rulings reinforcing the enforceability of arbitration agreements generally, and more specifically, class action waiver provisions. These headline-grabbing cases have sparked renewed debate as to whether arbitration programs are advisable, particularly in California where the fate of class action waivers is less certain and existing case law imposes a number of requirements...
October 25, 2013
Employers across the country have witnessed a flurry of significant decisions in recent years culminating in several U.S. Supreme Court rulings reinforcing the enforceability of arbitration agreements generally, and more specifically, class action waiver provisions. These headline-grabbing cases have sparked renewed debate as to whether arbitration programs are advisable, particularly in California where the fate of class action waivers is less certain and existing case law imposes a number of requirements...
In Practice: Bespoke Arbitration
October 23, 2013
The parties can craft an off-the-rack proceeding to suit the needs of the case, explains Jerome Falk of JAMS.
October 23, 2013
The parties can craft an off-the-rack proceeding to suit the needs of the case, explains Jerome Falk of JAMS.
ND Texas Compels Would-Be FLSA Class Action to Arbitration
October 18, 2013
The Northern District of Texas has accepted a United States Magistrate Judge’s findings, conclusions, and recommendation that a putative class action lawsuit filed pursuant to the Fair Labor Standards Act (“FLSA”) be submitted to arbitration. In Rogers v. Epic Health Services, Inc., No. 3:13-CV-1752-O, (N. D. Tex., September 17, 2013) the court granted Epic Heath Services, Inc.’s (“Epic”) motion to compel arbitration in a one page order. In the case, Joshua Rogers worked at Epic...
October 18, 2013
The Northern District of Texas has accepted a United States Magistrate Judge’s findings, conclusions, and recommendation that a putative class action lawsuit filed pursuant to the Fair Labor Standards Act (“FLSA”) be submitted to arbitration. In Rogers v. Epic Health Services, Inc., No. 3:13-CV-1752-O, (N. D. Tex., September 17, 2013) the court granted Epic Heath Services, Inc.’s (“Epic”) motion to compel arbitration in a one page order. In the case, Joshua Rogers worked at Epic...
Class Action Waiver in Arbitration Agreement Will Be Strictly Enforced Under the Federal Arbitration Act
July 2, 2013
The Court on Thursday continued its recent trend of strictly enforcing the terms of arbitration agreements, holding that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery. The Court’s opinion likely makes such class action waivers ironclad in the absence of specific legislation to the contrary or evidence – such as unconscionability under state law – that...
July 2, 2013
The Court on Thursday continued its recent trend of strictly enforcing the terms of arbitration agreements, holding that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery. The Court’s opinion likely makes such class action waivers ironclad in the absence of specific legislation to the contrary or evidence – such as unconscionability under state law – that...
In Quest of the Arbitration Trifecta, or Closed Door Litigation?: The Delaware Arbitration Program
June 24, 2013
Recently, a minor tempest has been raging over the Delaware Arbitration Program, which attempts to marry one of America’s premier business courts to the fundamentally more private consensual adjudicative alternative, binding arbitration. At a time when commercial parties face potentially long delays in underfunded courts, but harbor mixed views about arbitration, Delaware’s unique concoction ostensibly offers a veritable trifecta of procedural advantages. These include: (1) a first-rate adjudicator...
June 24, 2013
Recently, a minor tempest has been raging over the Delaware Arbitration Program, which attempts to marry one of America’s premier business courts to the fundamentally more private consensual adjudicative alternative, binding arbitration. At a time when commercial parties face potentially long delays in underfunded courts, but harbor mixed views about arbitration, Delaware’s unique concoction ostensibly offers a veritable trifecta of procedural advantages. These include: (1) a first-rate adjudicator...
Broad Service of Suit Provision in Insurance Policy Endorsement Precludes Arbitration
June 12, 2013
In a prior post, we reported the district court’s denial of the insurer’s motion to compel arbitration in Union Electric Co. v. Aegis Energy Syndicate 1225. In that decision, the court held that a choice of law and forum selection clause agreeing “to submit to the jurisdiction of the Courts of the state of Missouri” in a policy endorsement, commonly known as a service of suit provision, prevailed over an alternative dispute resolution clause in the policy itself, and foreclosed arbitration....
June 12, 2013
In a prior post, we reported the district court’s denial of the insurer’s motion to compel arbitration in Union Electric Co. v. Aegis Energy Syndicate 1225. In that decision, the court held that a choice of law and forum selection clause agreeing “to submit to the jurisdiction of the Courts of the state of Missouri” in a policy endorsement, commonly known as a service of suit provision, prevailed over an alternative dispute resolution clause in the policy itself, and foreclosed arbitration....
