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Arbitration
Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act, Part II
December 4, 2013
Part II: A Consent-Based Framework for Enforcing Arbitration Awards Enforcing Arbitration Agreements to Promote Arbitration The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle...
December 4, 2013
Part II: A Consent-Based Framework for Enforcing Arbitration Awards Enforcing Arbitration Agreements to Promote Arbitration The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle...
Fifth Circuit Invalidates NLRB Order Prohibiting Clauses In Covered Employment Agreement Waiving Class/Collective Claims and Requiring Individual Arbitration
December 4, 2013
In the controversial case of D.R. Horton v. National Labor Relations Board (No. 12-60031, Dec. 3, 2013), the US Court of Appeals for the Fifth Circuit today vacated, in a 2-1 decision, orders of the National Labor Relations Board (NLRB) invalidating an employee arbitration agreement that waived class and collective procedures and compelled individual arbitration. This case, along with sister cases in other Circuits, is likely to come before the US Supreme Court in due course. In the meantime,...
December 4, 2013
In the controversial case of D.R. Horton v. National Labor Relations Board (No. 12-60031, Dec. 3, 2013), the US Court of Appeals for the Fifth Circuit today vacated, in a 2-1 decision, orders of the National Labor Relations Board (NLRB) invalidating an employee arbitration agreement that waived class and collective procedures and compelled individual arbitration. This case, along with sister cases in other Circuits, is likely to come before the US Supreme Court in due course. In the meantime,...
Class Action Waivers in Arbitration Agreements Validated in NLRB Loss in the Fifth Circuit
December 4, 2013
A decision handed down by the U.S. Court of Appeals for the Fifth Circuit in New Orleans Tuesday upheld the use of class or collective action waivers in arbitration agreements. The decision in D.R. Horton Inc. v. National Labor Relations Board, argued before the court back in February, overturned the NLRB’s previous decision, which held that the massive Texas-based residential building company was violating the National Labor Relations Act when it required employees to sign a waiver that prevents...
December 4, 2013
A decision handed down by the U.S. Court of Appeals for the Fifth Circuit in New Orleans Tuesday upheld the use of class or collective action waivers in arbitration agreements. The decision in D.R. Horton Inc. v. National Labor Relations Board, argued before the court back in February, overturned the NLRB’s previous decision, which held that the massive Texas-based residential building company was violating the National Labor Relations Act when it required employees to sign a waiver that prevents...
Enforcing Arbitral Awards That Have Previously Been Annulled
December 3, 2013
In their International Litigation column, Lawrence W. Newman and David Zaslowsky of Baker & McKenzie write: If an arbitration award is annulled in the courts of the country where the arbitration took place, can it nevertheless be enforced by the courts of another country? A recent decision in the Southern District of New York addressed and answered that very question.
December 3, 2013
In their International Litigation column, Lawrence W. Newman and David Zaslowsky of Baker & McKenzie write: If an arbitration award is annulled in the courts of the country where the arbitration took place, can it nevertheless be enforced by the courts of another country? A recent decision in the Southern District of New York addressed and answered that very question.
Arbitration Agreements Waiving FLSA Collective Actions
December 3, 2013
In their Arbitration column, Samuel Estreicher, a professor at New York University School of Law and of counsel to Schulte Roth & Zabel, and Holly H. Weiss, a partner at Schulte Roth, write: The Second Circuit has extended the Supreme Court's pro-arbitration jurisprudence to the labor and employment context through 'Parisi,' 'Sutherland,' and 'Raniere.' Employers and employees can expect courts in this circuit routinely to uphold arbitration agreements that, while they preclude class or collective...
December 3, 2013
In their Arbitration column, Samuel Estreicher, a professor at New York University School of Law and of counsel to Schulte Roth & Zabel, and Holly H. Weiss, a partner at Schulte Roth, write: The Second Circuit has extended the Supreme Court's pro-arbitration jurisprudence to the labor and employment context through 'Parisi,' 'Sutherland,' and 'Raniere.' Employers and employees can expect courts in this circuit routinely to uphold arbitration agreements that, while they preclude class or collective...
Consumer Arbitration Unconscionability Trumps FAA Pre-Emption in Ninth Circuit Once Again
December 3, 2013
A California grocery chain, presumably emboldened by Supreme Court decisions that appeared to sustain corporate arbitration policies used to stifle consumer and employee class actions, took a gamble and, at least in the U.S. Ninth Circuit Court of Appeals, lost. This grocer fashioned an arbitration policy, imposed on applicants for employment as a condition for receiving their applications, that: (1) ensured that when an employee demanded arbitration, the grocer would pick the sole arbitrator, and (2) required...
December 3, 2013
A California grocery chain, presumably emboldened by Supreme Court decisions that appeared to sustain corporate arbitration policies used to stifle consumer and employee class actions, took a gamble and, at least in the U.S. Ninth Circuit Court of Appeals, lost. This grocer fashioned an arbitration policy, imposed on applicants for employment as a condition for receiving their applications, that: (1) ensured that when an employee demanded arbitration, the grocer would pick the sole arbitrator, and (2) required...
Developing a Framework for Arbitrating Standards-Essential Patent (SEP) Disputes
December 2, 2013
Jorge L. Contreras, Associate Professor of Law at American University, Washington College of Law, and David L. Newman, Partner in the Intellectual Property Law Group at Arnstein & Lehr LLP, have authored an interesting article entitled, Developing a Framework for Arbitrating Standards-Essential Patent (SEP) Disputes, Journal of Dispute Resolution, (2014, forthcoming). In the article, the authors discuss whether arbitration should be used to resolve standards-essential patents disputes. Here...
December 2, 2013
Jorge L. Contreras, Associate Professor of Law at American University, Washington College of Law, and David L. Newman, Partner in the Intellectual Property Law Group at Arnstein & Lehr LLP, have authored an interesting article entitled, Developing a Framework for Arbitrating Standards-Essential Patent (SEP) Disputes, Journal of Dispute Resolution, (2014, forthcoming). In the article, the authors discuss whether arbitration should be used to resolve standards-essential patents disputes. Here...
Fifth Circuit Holds Procedural Questions for ICDR to Decide
December 2, 2013
The United States Court of Appeals for the Fifth Circuit has held that procedural challenges to the selection of an arbitrator in an international dispute must be determined by the International Centre for Dispute Resolution (“ICDR”). In Adam Technologies International S.A. de C.V. v. Sutherland Global Services, Inc., No. 12-10760, (5th Cir., September 05, 2013), Sutherland Global Services, Inc. (“Sutherland”) sought arbitration in New York with Adam Technologies International S.A....
December 2, 2013
The United States Court of Appeals for the Fifth Circuit has held that procedural challenges to the selection of an arbitrator in an international dispute must be determined by the International Centre for Dispute Resolution (“ICDR”). In Adam Technologies International S.A. de C.V. v. Sutherland Global Services, Inc., No. 12-10760, (5th Cir., September 05, 2013), Sutherland Global Services, Inc. (“Sutherland”) sought arbitration in New York with Adam Technologies International S.A....
Judicial Attention to the Powers of Emergency Arbitrators
December 2, 2013
Is emergency arbitral relief granted by an emergency arbitrator inherently provisional, and therefore not final, and therefore beyond the powers of the emergency arbitrator insofar as the relief ordered would require a party to do something with irreversible consequences, and, finally, not capable of judicial recognition as an Award because of its necessarily provisional nature, being subject to modification by the regular arbitral tribunal in due course? This week’s answers are no, no, no, and no. (Yahoo!,...
December 2, 2013
Is emergency arbitral relief granted by an emergency arbitrator inherently provisional, and therefore not final, and therefore beyond the powers of the emergency arbitrator insofar as the relief ordered would require a party to do something with irreversible consequences, and, finally, not capable of judicial recognition as an Award because of its necessarily provisional nature, being subject to modification by the regular arbitral tribunal in due course? This week’s answers are no, no, no, and no. (Yahoo!,...
Unsurprising Sixth Circuit Decision that Propriety of Class Arbitration is a Gateway Question and that Silent Clause Doesn’t Permit Class Arbitration
November 29, 2013
From the Employer Law Report (Caroline Gentry): The Sixth Circuit held that courts, not arbitrators, must decide the “gateway”...
November 29, 2013
From the Employer Law Report (Caroline Gentry): The Sixth Circuit held that courts, not arbitrators, must decide the “gateway”...
