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Arbitration
Contracting Jurisdiction: Arbitration of Noncompetition Disputes in Employment Agreements
November 5, 2019
Brian Farkas, Adjunct Professor of Law at Cardozo School of Law, has published, “Contracting Jurisdiction: Arbitration...
November 5, 2019
Brian Farkas, Adjunct Professor of Law at Cardozo School of Law, has published, “Contracting Jurisdiction: Arbitration...
Mediators in Arbitration
November 4, 2019
Fordham University School of Law Professor Jacqueline M. Nolan-Haley has published, “Mediators in Arbitration,” Oxford Handbook of International Arbitration, Chapter 14, (Thomas Schultz and Federico Ortino Editors). Oxford University Press 2020, Forthcoming; Fordham Law Legal Studies Research Paper No. 3467670. In her book chapter, Professor Nolan-Haley examines the role of mediation in today’s transnational dispute system with a special focus on the convergence...
November 4, 2019
Fordham University School of Law Professor Jacqueline M. Nolan-Haley has published, “Mediators in Arbitration,” Oxford Handbook of International Arbitration, Chapter 14, (Thomas Schultz and Federico Ortino Editors). Oxford University Press 2020, Forthcoming; Fordham Law Legal Studies Research Paper No. 3467670. In her book chapter, Professor Nolan-Haley examines the role of mediation in today’s transnational dispute system with a special focus on the convergence...
9th Circuit: Double-Dipping JAMS Arbitrator Leads to Vacatur
October 30, 2019
In Monster Energy Co v. City Beverages (9th Cir. Oct. 22, 2019) (click here for a copy of the decision), the Ninth Circuit, in a 2-1 decision, held that an arbitrator’s award should be vacated for lack of proper disclosure of the arbitrator’s ownership interest in the arbitral organization. According to footnote 2 of the opinion, about one-third of JAMS arbitrators serve as owners or shareholders of JAMS. Suppose that a major company, Company X, has hundreds or thousands of form...
October 30, 2019
In Monster Energy Co v. City Beverages (9th Cir. Oct. 22, 2019) (click here for a copy of the decision), the Ninth Circuit, in a 2-1 decision, held that an arbitrator’s award should be vacated for lack of proper disclosure of the arbitrator’s ownership interest in the arbitral organization. According to footnote 2 of the opinion, about one-third of JAMS arbitrators serve as owners or shareholders of JAMS. Suppose that a major company, Company X, has hundreds or thousands of form...
Second Circuit Remands Award to Arbitrator for Do-Over
October 29, 2019
Arbitrators are human and occasionally they make awards that cannot be squared with logic and law, and courts may, in appropriate circumstances, vacate those awards as being in manifest [disregard of] the agreement, or in some circuits, in manifest disregard of the law. The U.S. Court of Appeals for the Second Circuit considered such an award in Weiss v. Sallie Mae, Inc., ___ F.3d ___, No. 18-2362, slip op. (Sept. 12, 2019), and solved the problem in a way that imposed minimal costs and delay on the parties...
October 29, 2019
Arbitrators are human and occasionally they make awards that cannot be squared with logic and law, and courts may, in appropriate circumstances, vacate those awards as being in manifest [disregard of] the agreement, or in some circuits, in manifest disregard of the law. The U.S. Court of Appeals for the Second Circuit considered such an award in Weiss v. Sallie Mae, Inc., ___ F.3d ___, No. 18-2362, slip op. (Sept. 12, 2019), and solved the problem in a way that imposed minimal costs and delay on the parties...
Arbitration-Rules Violation ≠ Vacatur
October 24, 2019
Walker and Ameriprise Financial, pursuant to their agreement, arbitrated their dispute under FINRA rules. Walker argued that the panel “exceeded its powers,” and thus fell within a statutory ground for vacatur of the arbitration award. The Fifth Circuit disagreed: “’An arbitrator exceeds his powers [under § 10(a)(4)] if he acts contrary to express contractual provisions.’ Walker does not argue that the panel violated any express provisions of the arbitration agreement, but only that it incorrectly...
October 24, 2019
Walker and Ameriprise Financial, pursuant to their agreement, arbitrated their dispute under FINRA rules. Walker argued that the panel “exceeded its powers,” and thus fell within a statutory ground for vacatur of the arbitration award. The Fifth Circuit disagreed: “’An arbitrator exceeds his powers [under § 10(a)(4)] if he acts contrary to express contractual provisions.’ Walker does not argue that the panel violated any express provisions of the arbitration agreement, but only that it incorrectly...
Legal Authorities and Comparative Law in International Commercial Arbitration
October 14, 2019
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, has published, “Legal Authorities and Comparative Law in International Commercial Arbitration: Best Practices versus Empirically Determined Actual Practices;” 1 Ius Comparatum __ (2020 Forthcoming); University of Missouri School of Law Legal Studies Research Paper No. 2019-18. In her journal article, Professor Strong examines the intersection of international arbitration...
October 14, 2019
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, has published, “Legal Authorities and Comparative Law in International Commercial Arbitration: Best Practices versus Empirically Determined Actual Practices;” 1 Ius Comparatum __ (2020 Forthcoming); University of Missouri School of Law Legal Studies Research Paper No. 2019-18. In her journal article, Professor Strong examines the intersection of international arbitration...
Netflix’s Flawed Arbitration Agreement and a Recent Sixth Circuit Opinion
September 26, 2019
Earlier this week, when I was trying to access Netflix on my television with my kids, Netflix would not allow me to view...
September 26, 2019
Earlier this week, when I was trying to access Netflix on my television with my kids, Netflix would not allow me to view...
Who Decides Who Decides? – The Turf War Continues
September 23, 2019
When you see me in the street, you can tell that I’m a pro-arbitration kind of guy. I wear my FAA hoodie, usually with the hood down, the better for you to admire my snowy white hair and furrowed, gravitas-laden brow. So when a US Court of Appeals takes a swing at arbitration, my instinct is to swing back. Fifth Circuit, take this 🤜. (As a response to the decision here discussed, Archer & White Sales, Inc. v. Henry Schein, Inc., 2019 WL 3812352 (5th Cir. Aug. 14, 2019)). Actually,...
September 23, 2019
When you see me in the street, you can tell that I’m a pro-arbitration kind of guy. I wear my FAA hoodie, usually with the hood down, the better for you to admire my snowy white hair and furrowed, gravitas-laden brow. So when a US Court of Appeals takes a swing at arbitration, my instinct is to swing back. Fifth Circuit, take this 🤜. (As a response to the decision here discussed, Archer & White Sales, Inc. v. Henry Schein, Inc., 2019 WL 3812352 (5th Cir. Aug. 14, 2019)). Actually,...
Bargaining in the (Murky) Shadow of Arbitration
September 17, 2019
Jill Gross, Associate Dean for Academic Affairs and Professor of Law at Pace University’s Elisabeth Haub School of Law, has published “Bargaining in the (Murky) Shadow of Arbitration,” Harvard Negotiation Law Review, Vol. 24, 2019. In her journal article, Associate Dean Gross discusses some concerns related to using arbitration in commercial disputes. Here is the abstract: Disputing parties who are unable to settle their differences will end up before an adjudicator (typically...
September 17, 2019
Jill Gross, Associate Dean for Academic Affairs and Professor of Law at Pace University’s Elisabeth Haub School of Law, has published “Bargaining in the (Murky) Shadow of Arbitration,” Harvard Negotiation Law Review, Vol. 24, 2019. In her journal article, Associate Dean Gross discusses some concerns related to using arbitration in commercial disputes. Here is the abstract: Disputing parties who are unable to settle their differences will end up before an adjudicator (typically...
Court Enforces Arbitration Clause in “Modified Clickwrap”–Chen v. Sierra Trading Post
September 16, 2019
In general, courts try to divide contracts into either clickwraps or browsewraps. A reminder that I only use those terms to mock them for several reasons, including (1) those terms are not robust enough to cover the range of UIs encountered in the field; and (2) the classification does not always help courts reach a conclusion. As the court candidly acknowledges, the “relevant law shows that courts have not been uniform in their treatment of ‘clickwrap’ or ‘browsewrap’ agreements.” Like...
September 16, 2019
In general, courts try to divide contracts into either clickwraps or browsewraps. A reminder that I only use those terms to mock them for several reasons, including (1) those terms are not robust enough to cover the range of UIs encountered in the field; and (2) the classification does not always help courts reach a conclusion. As the court candidly acknowledges, the “relevant law shows that courts have not been uniform in their treatment of ‘clickwrap’ or ‘browsewrap’ agreements.” Like...
