Arbitration
Arbitrating ‘Arbitrability’
April 25, 2013
Professor Alan S. Rau, Mark G. and Judy G. Yudof Chair in Law at the University of Texas School of Law, has published a paper entitled Arbitrating ‘Arbitrability’, World Arbitration and Mediation Review, 2013; U of Texas Law, Public Law Research Paper. In his paper, Professor Rau examines threshold challenges to the use of arbitration in both international and domestic commercial disputes. Here is the abstract: It is quite common, in the case law and the secondary literature, to focus...
April 25, 2013
Professor Alan S. Rau, Mark G. and Judy G. Yudof Chair in Law at the University of Texas School of Law, has published a paper entitled Arbitrating ‘Arbitrability’, World Arbitration and Mediation Review, 2013; U of Texas Law, Public Law Research Paper. In his paper, Professor Rau examines threshold challenges to the use of arbitration in both international and domestic commercial disputes. Here is the abstract: It is quite common, in the case law and the secondary literature, to focus...
Fortune 1,000 Survey on Mediation, Arbitration and Conflict Management on International Mediation
April 25, 2013
A new study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration less often and relying more on mediated negotiation and other approaches aimed at resolving disputes informally, quickly and inexpensively. The 2011 survey of corporate counsel developed by researchers at Cornell University’s Scheinman Institute on Conflict Resolution, the Straus Institute for Dispute Resolution at Pepperdine University School of Law, and the International...
April 25, 2013
A new study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration less often and relying more on mediated negotiation and other approaches aimed at resolving disputes informally, quickly and inexpensively. The 2011 survey of corporate counsel developed by researchers at Cornell University’s Scheinman Institute on Conflict Resolution, the Straus Institute for Dispute Resolution at Pepperdine University School of Law, and the International...
Small Business Arbitration Part I: Should we Make Arbitration Part of the Deal?
April 25, 2013
Small businesses (including sole proprietors) frequently must negotiate arms-length commercial transactions with their more economically powerful counterparts and, not infrequently, must decide whether to accept an offer to make an arbitration agreement part of the deal. Whether or not to accept that invitation, and, if so, under what terms, may seem like a straightforward question susceptible to an easy answer, and it can be tempting to think that the risks associated with making the wrong choice...
April 25, 2013
Small businesses (including sole proprietors) frequently must negotiate arms-length commercial transactions with their more economically powerful counterparts and, not infrequently, must decide whether to accept an offer to make an arbitration agreement part of the deal. Whether or not to accept that invitation, and, if so, under what terms, may seem like a straightforward question susceptible to an easy answer, and it can be tempting to think that the risks associated with making the wrong choice...
Sixth Circuit Paints Vivid Picture of “Evident Partiality” Sufficient to Vacate Arbitration Award
April 24, 2013
One of the very few ways to show evident partiality by an arbitrator is to show the arbitrator had financial ties to a party or witness in the proceeding, another is to show the arbitrator prejudiced a party by reversing a procedural or evidentiary ruling during the hearing. The Sixth Circuit found a Michigan arbitrator committed both transgressions, and affirmed the district court’s decision to vacate the resulting arbitration award. Thomas Kinkade Co. v. White, __ F.3d __, 2013 WL 1296238...
April 24, 2013
One of the very few ways to show evident partiality by an arbitrator is to show the arbitrator had financial ties to a party or witness in the proceeding, another is to show the arbitrator prejudiced a party by reversing a procedural or evidentiary ruling during the hearing. The Sixth Circuit found a Michigan arbitrator committed both transgressions, and affirmed the district court’s decision to vacate the resulting arbitration award. Thomas Kinkade Co. v. White, __ F.3d __, 2013 WL 1296238...
Plaintiffs Must Arbitrate Individually, Even If It Means No “Pattern-or-Practice” Claim
April 24, 2013
All the cool kids are talking about class arbitration lately. . . There are the two casespending before SCOTUS, and now the Second Circuit confirms its place in the “in crowd” with a decision forcing a class of employees into arbitration in Parisi v. Goldman, Sachs & Co., __ F.3d __, 2013 WL 1149751 (2d Cir. Mar. 21, 2013). In Parisi, three female former employees alleged gender discrimination by Goldman, Sachs and sought to proceed as a class action in court. The plaintiffs acknowledged...
April 24, 2013
All the cool kids are talking about class arbitration lately. . . There are the two casespending before SCOTUS, and now the Second Circuit confirms its place in the “in crowd” with a decision forcing a class of employees into arbitration in Parisi v. Goldman, Sachs & Co., __ F.3d __, 2013 WL 1149751 (2d Cir. Mar. 21, 2013). In Parisi, three female former employees alleged gender discrimination by Goldman, Sachs and sought to proceed as a class action in court. The plaintiffs acknowledged...
Arbitration Clause Interpretation Round-Up
April 24, 2013
Following is a summary of five recent opinions of note concerning the interpretation of arbitration agreements and arbitration procedure: Klein v. Nabors Drilling USA L.P., Case No. 11-30824 (5th Cir. Feb. 26, 2013) (reversing denial of motion to compel arbitration; option in contract to agree to non-binding alternative dispute resolution proceedings did not render mandatory arbitration clause unenforceable). Noohi v. Toll Bros., Inc., Case No. 12-1261 (4th Cir. Feb. 26, 2013) (affirming denial...
April 24, 2013
Following is a summary of five recent opinions of note concerning the interpretation of arbitration agreements and arbitration procedure: Klein v. Nabors Drilling USA L.P., Case No. 11-30824 (5th Cir. Feb. 26, 2013) (reversing denial of motion to compel arbitration; option in contract to agree to non-binding alternative dispute resolution proceedings did not render mandatory arbitration clause unenforceable). Noohi v. Toll Bros., Inc., Case No. 12-1261 (4th Cir. Feb. 26, 2013) (affirming denial...
George Friedman Responds to Dan Solin’s Indictment of FINRA Arbitration
April 23, 2013
Last week, author Dan Solin, a long-time critic of FINRA, published a column in U.S. News & World Report attacking the FINRA arbitration forum as biased, unfair to investors and shrouded in secrecy. Presumably, the column was motivated by a federal judge’s recent decision to deny a FOIA request that PIABA (Public Investors Arbitration Bar Association) filed with the SEC to obtain what Solin describes as “very basic information about the way FINRA administers the arbitration process,...
April 23, 2013
Last week, author Dan Solin, a long-time critic of FINRA, published a column in U.S. News & World Report attacking the FINRA arbitration forum as biased, unfair to investors and shrouded in secrecy. Presumably, the column was motivated by a federal judge’s recent decision to deny a FOIA request that PIABA (Public Investors Arbitration Bar Association) filed with the SEC to obtain what Solin describes as “very basic information about the way FINRA administers the arbitration process,...
5th Circuit Reverses Vacatur in Perpetual-License Case
April 23, 2013
In another example of how difficult it is to overturn an arbitration award in federal court, the 5th U.S. Circuit Court of Appeals has reversed and remanded a vacatur.
April 23, 2013
In another example of how difficult it is to overturn an arbitration award in federal court, the 5th U.S. Circuit Court of Appeals has reversed and remanded a vacatur.
Choice of Law Provision Rendered Arbitration Agreement Unenforceable
April 23, 2013
Employee could not be compelled to arbitrate an employment discrimination claim brought under California statute where the arbitration clause was part of a contract that parties agreed be "construed in accordance with the internal substantive laws of The Commonwealth of Massachusetts," and the agreement did not clearly and unmistakably state that statutory discrimination claims were subject to the arbitration clause, as required by Massachusetts law. Defendants, Bingham McCutchen LLP,...
April 23, 2013
Employee could not be compelled to arbitrate an employment discrimination claim brought under California statute where the arbitration clause was part of a contract that parties agreed be "construed in accordance with the internal substantive laws of The Commonwealth of Massachusetts," and the agreement did not clearly and unmistakably state that statutory discrimination claims were subject to the arbitration clause, as required by Massachusetts law. Defendants, Bingham McCutchen LLP,...
U.S. & International Arbitration 2013
April 23, 2013
Four times in the past 15 months the Supreme Court has struck down lower court attempts to limit the impact of the Federal Arbitration Act (FAA) by allowing recourse to the courts — on three of those occasions issuing per curiam orders vacating state court decisions for ignoring Supreme Court precedent. Nitro-Lift Techs. v. Howard, 133 S. Ct. 500 (2012) (Oklahoma); Marmet Health Care Ctr. v. Brown, 132 S. Ct. 1201 (2012) (West Virginia); KPMG LLP v. Cocchi, 132 S. Ct. 23 (2011) (Florida);...
April 23, 2013
Four times in the past 15 months the Supreme Court has struck down lower court attempts to limit the impact of the Federal Arbitration Act (FAA) by allowing recourse to the courts — on three of those occasions issuing per curiam orders vacating state court decisions for ignoring Supreme Court precedent. Nitro-Lift Techs. v. Howard, 133 S. Ct. 500 (2012) (Oklahoma); Marmet Health Care Ctr. v. Brown, 132 S. Ct. 1201 (2012) (West Virginia); KPMG LLP v. Cocchi, 132 S. Ct. 23 (2011) (Florida);...
