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Arbitration
What Constitutes Arbitration for Federal Arbitration Act Purposes?
June 24, 2014
The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16, codifies the federal policy of enforcing arbitration agreements. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the Supreme Court noted that “Section 2 [of the Act] is a congressional declaration of a liberal federal policy favoring arbitration, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability,...
June 24, 2014
The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16, codifies the federal policy of enforcing arbitration agreements. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the Supreme Court noted that “Section 2 [of the Act] is a congressional declaration of a liberal federal policy favoring arbitration, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability,...
Is an Arbitral Award Entitled to Collateral Estoppel Effect?
June 23, 2014
In an international commercial dispute, the U.S. District Court for the Eastern District of Pennsylvania (the district court) had to establish the effect of an Italian court judgment that confirmed an arbitral award over the defendant Pirito’s appeal. Pirito v. Penn Engineering World Holdings, No. 09-2396 (E.D. Pa. May 16, 2013). Background and Procedural History The case arose from a stock purchase agreement (SPA) executed in 2003, whereby Penn Engineering World Holdings (Penn World) purchased...
June 23, 2014
In an international commercial dispute, the U.S. District Court for the Eastern District of Pennsylvania (the district court) had to establish the effect of an Italian court judgment that confirmed an arbitral award over the defendant Pirito’s appeal. Pirito v. Penn Engineering World Holdings, No. 09-2396 (E.D. Pa. May 16, 2013). Background and Procedural History The case arose from a stock purchase agreement (SPA) executed in 2003, whereby Penn Engineering World Holdings (Penn World) purchased...
Arbitration Panels May Limit Discovery and Evidence
June 19, 2014
In Doral Financial Corp. v. Garcia-Velez, 725 F.3d 27 (1st Cir. 2013), LJL 33rd Street Associates v. Pitcairn Associates Properties, 725 F.3d 184 (2d Cir. 2013), and Bain Cotton Co. v. Chesnutt Cotton Co., 531 F. App’x 500, Appeal 12-11138 (5th Cir. June 24, 2013), the appeals each involved a losing party attempting to vacate an arbitration award by arguing that when the arbitrator(s) refused to give the parties free rein in seeking discovery or offering evidence, the arbitrators’ decisions were...
June 19, 2014
In Doral Financial Corp. v. Garcia-Velez, 725 F.3d 27 (1st Cir. 2013), LJL 33rd Street Associates v. Pitcairn Associates Properties, 725 F.3d 184 (2d Cir. 2013), and Bain Cotton Co. v. Chesnutt Cotton Co., 531 F. App’x 500, Appeal 12-11138 (5th Cir. June 24, 2013), the appeals each involved a losing party attempting to vacate an arbitration award by arguing that when the arbitrator(s) refused to give the parties free rein in seeking discovery or offering evidence, the arbitrators’ decisions were...
Arbitrating Arbitrability with Nonsignatories
June 18, 2014
The right to arbitrate a dispute is a right that arises out of a contract. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746 (2011).The Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) prescribes the gatekeeping role of the courts in the implementation of these contract rights. Section 3 requires the court to refer arbitrable issues to arbitration, and § 4 requires the court to compel arbitration upon finding that an arbitration agreement exists and has not been performed. Either way,...
June 18, 2014
The right to arbitrate a dispute is a right that arises out of a contract. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746 (2011).The Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) prescribes the gatekeeping role of the courts in the implementation of these contract rights. Section 3 requires the court to refer arbitrable issues to arbitration, and § 4 requires the court to compel arbitration upon finding that an arbitration agreement exists and has not been performed. Either way,...
Can You Force Whistleblower Arbitration? Maybe
June 17, 2014
Does a generally worded arbitration or mediation clause in your employment contracts cover whistleblower retaliation claims? Not according to the outcome of a recent case, explains Calfee Halter & Griswold partner, Virginia Davidson. On Lexology, she discusses a U.S. Court of Appeals for the Sixth Circuit decision in which the court ruled that BAE Systems Technology Solutions & Services, Inc.’s contracts didn’t hold enough water. She says the case involved a retired Army major and an illustrator...
June 17, 2014
Does a generally worded arbitration or mediation clause in your employment contracts cover whistleblower retaliation claims? Not according to the outcome of a recent case, explains Calfee Halter & Griswold partner, Virginia Davidson. On Lexology, she discusses a U.S. Court of Appeals for the Sixth Circuit decision in which the court ruled that BAE Systems Technology Solutions & Services, Inc.’s contracts didn’t hold enough water. She says the case involved a retired Army major and an illustrator...
New AAA Rules Provide Straightforward Guidelines for Appeals
June 17, 2014
The American Arbitration Association (AAA) has adopted rules, effective November 1, 2013, providing parties to commercial and construction arbitrations with an optional process for appealing an arbitration award. Except for the occasional inclusion of an ad hoc private appeal process in a contractual ADR provision, or unique state statutes, there have been limited opportunities for appellate review of the “merits” of arbitration awards. With increasing frequency, parties dissatisfied with...
June 17, 2014
The American Arbitration Association (AAA) has adopted rules, effective November 1, 2013, providing parties to commercial and construction arbitrations with an optional process for appealing an arbitration award. Except for the occasional inclusion of an ad hoc private appeal process in a contractual ADR provision, or unique state statutes, there have been limited opportunities for appellate review of the “merits” of arbitration awards. With increasing frequency, parties dissatisfied with...
“Remedies for Nonpayment” Rules Create New Challenges for Arbitrators
June 16, 2014
Doing justice and finding in favor of the aggrieved party are among the paramount goals of an arbitrator. Of equal and absolute...
June 16, 2014
Doing justice and finding in favor of the aggrieved party are among the paramount goals of an arbitrator. Of equal and absolute...
Construction Adjudication on the Rise Globally for Payment Disputes
June 12, 2014
The methods of resolving construction payment disputes seem as myriad as the disputes themselves. In Ireland, the legislature last July enacted a law introducing a method of dispute resolution new to the Irish construction landscape—adjudication. The motivation behind the Construction Contracts Act 2013 was to create payment protection for those who provide labor and materials for a project (as there is no mechanic’s lien in Ireland). The Act introduces two mechanisms to achieve this: (1) new 30-day...
June 12, 2014
The methods of resolving construction payment disputes seem as myriad as the disputes themselves. In Ireland, the legislature last July enacted a law introducing a method of dispute resolution new to the Irish construction landscape—adjudication. The motivation behind the Construction Contracts Act 2013 was to create payment protection for those who provide labor and materials for a project (as there is no mechanic’s lien in Ireland). The Act introduces two mechanisms to achieve this: (1) new 30-day...
Supreme Court Continues Down Pro-Arbitration Road
June 12, 2014
Although arbitration features regularly on the Supreme Court’s docket, a number of significant cases have been before the Court recently. The gist of these rulings is a continued pro-arbitration approach, consistent with the Federal Arbitration Act (FAA), 9 U.S.C. § 1. The Supreme Court also confirmed that parties to an arbitration contract are bound by the words of that contract. In addition, by denying certiorari in the Delaware Coalition for Open Government v. Strine case, the Court struck...
June 12, 2014
Although arbitration features regularly on the Supreme Court’s docket, a number of significant cases have been before the Court recently. The gist of these rulings is a continued pro-arbitration approach, consistent with the Federal Arbitration Act (FAA), 9 U.S.C. § 1. The Supreme Court also confirmed that parties to an arbitration contract are bound by the words of that contract. In addition, by denying certiorari in the Delaware Coalition for Open Government v. Strine case, the Court struck...
Arbitration as a Means of Avoiding Class Actions
June 11, 2014
In AT&T Mobility v. Concepcion, the Supreme Court held that a waiver of class action that was part of an arbitration clause in a consumer contract was enforceable despite state law to the contrary. Subsequently, in Oxford Health Plans v. Sutton, it upheld an arbitrator’s ruling that a class action could be sustained in a commercial arbitration agreement, because the arbitrator’s finding had drawn its essence from interpretation of the arbitration agreement itself. And in American Express v. Italian...
June 11, 2014
In AT&T Mobility v. Concepcion, the Supreme Court held that a waiver of class action that was part of an arbitration clause in a consumer contract was enforceable despite state law to the contrary. Subsequently, in Oxford Health Plans v. Sutton, it upheld an arbitrator’s ruling that a class action could be sustained in a commercial arbitration agreement, because the arbitrator’s finding had drawn its essence from interpretation of the arbitration agreement itself. And in American Express v. Italian...
