Arbitration
Challenging Awards for Lack of Disclosure
July 17, 2013
The May 2013 issue of the IBA Dispute Resolution Section’s journal, Dispute Resolution International, has a concise and compelling article by Mark H. Alcott addressing “Post-Award Attacks on Arbitrators.” The title speaks for itself: the author is harshly critical of challenges to arbitral impartiality that are first asserted after an award has issued. Challenges to “would-be arbitrators because of interests or relationships that are marginal, at best,” cause delay, unnecessary...
July 17, 2013
The May 2013 issue of the IBA Dispute Resolution Section’s journal, Dispute Resolution International, has a concise and compelling article by Mark H. Alcott addressing “Post-Award Attacks on Arbitrators.” The title speaks for itself: the author is harshly critical of challenges to arbitral impartiality that are first asserted after an award has issued. Challenges to “would-be arbitrators because of interests or relationships that are marginal, at best,” cause delay, unnecessary...
Equal Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations
July 17, 2013
Frederic G. Sourgens, Associate Professor of Law at Washburn University School of Law has publishedEqual Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations, North Carolina Journal of International Law and Commercial Regulation, Vol. 38, No. 4, 2013. In his article, Professor Sourgens discusses the procedure for establishing jurisdictional proof in investor-state arbitral proceedings. Here is the abstract: This article develops the process of jurisdictional proof in investor-state...
July 17, 2013
Frederic G. Sourgens, Associate Professor of Law at Washburn University School of Law has publishedEqual Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations, North Carolina Journal of International Law and Commercial Regulation, Vol. 38, No. 4, 2013. In his article, Professor Sourgens discusses the procedure for establishing jurisdictional proof in investor-state arbitral proceedings. Here is the abstract: This article develops the process of jurisdictional proof in investor-state...
Reflections on 2013 Supreme Court Arbitration Decisions
July 16, 2013
I have had a few days to digest the Supreme Court’s most recent opinions interpreting the Federal Arbitration Act (Oxford Health Plans LLC v. Sutter, see blog post here; and American Express Co. v. Italian Colors Restaurant, see blog posts here and here) and offer the following reflections: Sutter affirmed the broad power of the arbitrators to decide issues properly submitted to them even if the resulting decision seems implausible. Italian Colors affirmed the power of parties...
July 16, 2013
I have had a few days to digest the Supreme Court’s most recent opinions interpreting the Federal Arbitration Act (Oxford Health Plans LLC v. Sutter, see blog post here; and American Express Co. v. Italian Colors Restaurant, see blog posts here and here) and offer the following reflections: Sutter affirmed the broad power of the arbitrators to decide issues properly submitted to them even if the resulting decision seems implausible. Italian Colors affirmed the power of parties...
Washington Legislature Says Statute of Limitations Applies to Arbitration Proceedings
July 16, 2013
An interesting arbitration-related development has come out of the Washington Legislature. In an apparent response to a 2010 Washington Supreme Court ruling, lawmakers have amended the state’s Uniform Arbitration Act to allow statutes of limitations to apply to arbitral proceedings. The bill was purportedly filed in response to the holding in Broom v. Morgan Stanley DW, Inc. which said a Financial Industry Regulatory Authority panel exceeded its authority when it dismissed arbitral claims based...
July 16, 2013
An interesting arbitration-related development has come out of the Washington Legislature. In an apparent response to a 2010 Washington Supreme Court ruling, lawmakers have amended the state’s Uniform Arbitration Act to allow statutes of limitations to apply to arbitral proceedings. The bill was purportedly filed in response to the holding in Broom v. Morgan Stanley DW, Inc. which said a Financial Industry Regulatory Authority panel exceeded its authority when it dismissed arbitral claims based...
Supreme Court Affirms Commitment to Narrow Judicial Review of Arbitration Awards in Sutter Decision
July 15, 2013
Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is whether the arbitrator interpreted the parties’ agreement,...
July 15, 2013
Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is whether the arbitrator interpreted the parties’ agreement,...
SCOTUS Says “Tough Luck” To Plaintiffs Whose Claims Are Too Pricey To Prove In Individual Arbitrations
July 12, 2013
In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely because proving their claims on an individual basis would cost many times more than their potential recovery. In doing so, Justice Scalia, writing for the five-member majority, gave this characteristically harsh assessment: “The FAA’s command to enforce arbitration agreements...
July 12, 2013
In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely because proving their claims on an individual basis would cost many times more than their potential recovery. In doing so, Justice Scalia, writing for the five-member majority, gave this characteristically harsh assessment: “The FAA’s command to enforce arbitration agreements...
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...
The Fifth Circuit Accepts Judicial Estoppel as a Basis for Discovery
July 5, 2013
In its dispute with Chevron Corporation regarding the Lago Agrio litigation, the Republic of Ecuador has frequently been on the losing end of discovery applications filed by Chevron pursuant to 28 U.S.C. section 1782. In Republic of Ecuador, et al. v. John A. Connor, Chevron Corporation, et al., Nos. 12-20122/20123, 2013 WL 539011 (5th Cir. February 13, 2013), Ecuador filed its own section 1782 application in the U.S. District Court for the Southern District of Texas, seeking discovery from an individual...
July 5, 2013
In its dispute with Chevron Corporation regarding the Lago Agrio litigation, the Republic of Ecuador has frequently been on the losing end of discovery applications filed by Chevron pursuant to 28 U.S.C. section 1782. In Republic of Ecuador, et al. v. John A. Connor, Chevron Corporation, et al., Nos. 12-20122/20123, 2013 WL 539011 (5th Cir. February 13, 2013), Ecuador filed its own section 1782 application in the U.S. District Court for the Southern District of Texas, seeking discovery from an individual...
Associational Arbitration: First Circuit Finds a New Way to Limit Stolt-Nielsen
July 3, 2013
On June 27, 2012, the U.S. Court of Appeals for the First Circuit joined the Second and the Third Circuits by finding a unique way to allow class arbitration by limiting Stolt-Nielsen to its facts. Fantastic Sams Franchise Corp. v. FSRO Association Ltd.,No. 11-2300. In the dispute, the regional owners association of Fantastic Sams hair salons (FSRO) sued the franchisor (FSFC) alleging breach of the franchise agreement. The FSRO and the franchisor had entered into 35 regional license agreements...
July 3, 2013
On June 27, 2012, the U.S. Court of Appeals for the First Circuit joined the Second and the Third Circuits by finding a unique way to allow class arbitration by limiting Stolt-Nielsen to its facts. Fantastic Sams Franchise Corp. v. FSRO Association Ltd.,No. 11-2300. In the dispute, the regional owners association of Fantastic Sams hair salons (FSRO) sued the franchisor (FSFC) alleging breach of the franchise agreement. The FSRO and the franchisor had entered into 35 regional license agreements...
Ninth Circuit Retreats from Complete Destruction of Broughton-Cruz Rule
July 2, 2013
In AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S.Ct. 1740, 1745 (2011) (Concepcion), the Supreme Court struck down the “Discover Bank rule,” California’s judicially crafted prohibition of class action waivers in arbitration agreements. See Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005).Concepcion also brought into question the validity of California’s “Broughton-Cruz rule,” another judicially crafted doctrine allowing plaintiffs...
July 2, 2013
In AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S.Ct. 1740, 1745 (2011) (Concepcion), the Supreme Court struck down the “Discover Bank rule,” California’s judicially crafted prohibition of class action waivers in arbitration agreements. See Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005).Concepcion also brought into question the validity of California’s “Broughton-Cruz rule,” another judicially crafted doctrine allowing plaintiffs...
