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Arbitration
ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them
November 30, 2018
How changes of ICSID procedure can be achieved? The ICSID Convention itself contains several procedural rules which regulate the conduct of arbitral proceedings. Amendment of these rules is, however, difficult as a matter of public international law. However, ICSID Rules of Procedure for Arbitration Proceedings, which are incorporated by parties into their arbitration clauses by reference, can be amended more easily, upon the approval of a majority of two-thirds of the Member States. This seems...
November 30, 2018
How changes of ICSID procedure can be achieved? The ICSID Convention itself contains several procedural rules which regulate the conduct of arbitral proceedings. Amendment of these rules is, however, difficult as a matter of public international law. However, ICSID Rules of Procedure for Arbitration Proceedings, which are incorporated by parties into their arbitration clauses by reference, can be amended more easily, upon the approval of a majority of two-thirds of the Member States. This seems...
Studies Conclude Arbitration Is A Black Hole With Repeat Player Bias (But Also Faster & Cheaper Than Court)
November 29, 2018
You know what rarely rises to the top of my “to do” list? Reading scholarly articles and studies about arbitration. Blech. But, since I haven’t seen any good court decisions lately, it is time to visit the neglected pile of articles. Turns out, I should have read some of them right away. Below are summaries of five new-ish articles that have crossed my desk. A few offer peeks into arbitration data that is generally not available and some conclusions to chew on over this Thanksgiving...
November 29, 2018
You know what rarely rises to the top of my “to do” list? Reading scholarly articles and studies about arbitration. Blech. But, since I haven’t seen any good court decisions lately, it is time to visit the neglected pile of articles. Turns out, I should have read some of them right away. Below are summaries of five new-ish articles that have crossed my desk. A few offer peeks into arbitration data that is generally not available and some conclusions to chew on over this Thanksgiving...
Four Decisions Conclude Claims Outside Scope of Arbitration Agreement
November 29, 2018
There are only four ways to avoid an arbitration agreement. You can prove: 1) it was never formed; 2) it was formed, but is invalid under state law; 3) the current dispute is outside the scope of it; or 4) the other party waived their right to arbitrate (through litigation conduct). Today’s post is about the third method. Because of the federal presumption in favor of arbitrability, which applies when courts are determining whether the parties’ dispute falls within the scope of the clause,...
November 29, 2018
There are only four ways to avoid an arbitration agreement. You can prove: 1) it was never formed; 2) it was formed, but is invalid under state law; 3) the current dispute is outside the scope of it; or 4) the other party waived their right to arbitrate (through litigation conduct). Today’s post is about the third method. Because of the federal presumption in favor of arbitrability, which applies when courts are determining whether the parties’ dispute falls within the scope of the clause,...
The ICSID Conciliation Rules in Practice
November 28, 2018
Frauke Nitschke, Team Leader and Legal Counsel on one of the Case Management Teams at the International Centre for Settlement of Investment Disputes has published “The ICSID Conciliation Rules in Practice,” Forthcoming, Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómes (Oxford University Press 2018). In her book chapter, Ms. Nitschke describes and analyzes the conciliation process and procedure that is currently in place...
November 28, 2018
Frauke Nitschke, Team Leader and Legal Counsel on one of the Case Management Teams at the International Centre for Settlement of Investment Disputes has published “The ICSID Conciliation Rules in Practice,” Forthcoming, Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómes (Oxford University Press 2018). In her book chapter, Ms. Nitschke describes and analyzes the conciliation process and procedure that is currently in place...
11th Circuit: Arbitration Agreement Printed on Outside Packaging Fully Enforceable
November 28, 2018
In a recent decision from the 11th Circuit, the court found that an arbitration agreement printed on the outside wrapper of a package of roofing shingles is fully enforceable if a consumer purchases, opens, and retains the product. Dye v. Tamko Bldg. Prod., Inc., No. 17-14052 (11th Cir. Nov. 2, 2018) (click here for a copy of the decision). A picture of the packaging appears on this blog page, although the print is too tiny to view with this low quality picture. It appears that one entire side...
November 28, 2018
In a recent decision from the 11th Circuit, the court found that an arbitration agreement printed on the outside wrapper of a package of roofing shingles is fully enforceable if a consumer purchases, opens, and retains the product. Dye v. Tamko Bldg. Prod., Inc., No. 17-14052 (11th Cir. Nov. 2, 2018) (click here for a copy of the decision). A picture of the packaging appears on this blog page, although the print is too tiny to view with this low quality picture. It appears that one entire side...
Not Remembering Signing Arbitration Agreement Doesn’t Mean You Didn’t Sign It
November 27, 2018
Another day, another arbitration compelled, this time in a recent case out of the Northern District of Illinois, Nitka v. ERJ Dining IV, LLC, Case No. 18 cv 3279. The plaintiff sued the defendant for sexual harassment, sex discrimination, and assault and battery. The defendant countered that the plaintiff had signed an agreement to arbitrate disputes relating to her employment, which these were. The plaintiff stated she had no memory of signing the arbitration agreement, but the defendant's Vice...
November 27, 2018
Another day, another arbitration compelled, this time in a recent case out of the Northern District of Illinois, Nitka v. ERJ Dining IV, LLC, Case No. 18 cv 3279. The plaintiff sued the defendant for sexual harassment, sex discrimination, and assault and battery. The defendant countered that the plaintiff had signed an agreement to arbitrate disputes relating to her employment, which these were. The plaintiff stated she had no memory of signing the arbitration agreement, but the defendant's Vice...
The Fights Over Arbitration Clauses Continue
November 26, 2018
Alison Frankel has a write-up of A-1 Premium Acceptance, Inc v. Hunter, No. SC96672, a case out of Missouri that refuses to substitute an arbitrator when the arbitrator named in the arbitration clause is no longer available (in this case, the specified National Arbitration Forum no longer provides arbitration services on consumer loans like in the contract at issue here). This is yet another court weighing in on a split that's developed: Can arbitration be compelled when the arbitration clause specified...
November 26, 2018
Alison Frankel has a write-up of A-1 Premium Acceptance, Inc v. Hunter, No. SC96672, a case out of Missouri that refuses to substitute an arbitrator when the arbitrator named in the arbitration clause is no longer available (in this case, the specified National Arbitration Forum no longer provides arbitration services on consumer loans like in the contract at issue here). This is yet another court weighing in on a split that's developed: Can arbitration be compelled when the arbitration clause specified...
The Marriage of Artificial Intelligence & Blockchain in International Arbitration: A Peak into the Near Future!!!
November 25, 2018
Two of the most frequent buzz words in our world right now are without doubt: Blockchain & Artificial Intelligence (“AI”)....
November 25, 2018
Two of the most frequent buzz words in our world right now are without doubt: Blockchain & Artificial Intelligence (“AI”)....
Class Action Lawsuit Allege Electric Scooters Are Dangerous
November 23, 2018
A lawsuit targeting electric scooter-sharing companies seizes on the dangers of zipping around town on two wheels and brings gory detail to one of the more polarizing technology trends to emerge over the last year. Nine people who were injured by electric scooters filed the class-action suit on Oct. 19 in Los Angeles County Superior Court. It accuses startups Bird Rides Inc. and Lime – as well as their manufacturers Xiaomi Corp. and Segway Inc. – of gross negligence, claiming the companies...
November 23, 2018
A lawsuit targeting electric scooter-sharing companies seizes on the dangers of zipping around town on two wheels and brings gory detail to one of the more polarizing technology trends to emerge over the last year. Nine people who were injured by electric scooters filed the class-action suit on Oct. 19 in Los Angeles County Superior Court. It accuses startups Bird Rides Inc. and Lime – as well as their manufacturers Xiaomi Corp. and Segway Inc. – of gross negligence, claiming the companies...
Defendant Can’t Send Virtual Gambling Claims to Arbitration
November 21, 2018
Having lost in the Ninth Circuit, Big Fish tried to invoke its arbitration clause and compel arbitration. The court says: Churchill Downs waived its right to arbitration when it took its first bite of the apple and chewed thoroughly for over three years. Ouch! The court says that the terms don’t unequivocally delegate the issue of waiver to the arbitrator, so the court must decide it. As to waiver, Churchill Downs took acts inconsistent with its putative right to arbitrate by litigating the case...
November 21, 2018
Having lost in the Ninth Circuit, Big Fish tried to invoke its arbitration clause and compel arbitration. The court says: Churchill Downs waived its right to arbitration when it took its first bite of the apple and chewed thoroughly for over three years. Ouch! The court says that the terms don’t unequivocally delegate the issue of waiver to the arbitrator, so the court must decide it. As to waiver, Churchill Downs took acts inconsistent with its putative right to arbitrate by litigating the case...
