Arbitration
9th Circuit: ERISA Claim Non-Arbitrable
August 27, 2018
In Munro v. University of Southern California, No. 17-55550 (9th Cir. July 24, 2018) (click here for a copy of the decision), the Ninth Circuit held that claims for breach of fiduciary duty in the administration of ERISA plans are not covered by an arbitration agreement between an employee and employer. The court reasoned that such claims for breach of fiduciary duty are brought on behalf of the ERISA plan, not on behalf of the employees. By signing an arbitration agreement, an employee can waive...
August 27, 2018
In Munro v. University of Southern California, No. 17-55550 (9th Cir. July 24, 2018) (click here for a copy of the decision), the Ninth Circuit held that claims for breach of fiduciary duty in the administration of ERISA plans are not covered by an arbitration agreement between an employee and employer. The court reasoned that such claims for breach of fiduciary duty are brought on behalf of the ERISA plan, not on behalf of the employees. By signing an arbitration agreement, an employee can waive...
Global Lessons in Mandatory and Voluntary ADR Systems
August 24, 2018
The question of voluntary and mandatory ADR including arbitration has been a richly debated topic in many jurisdictions. Since the mid-twentieth century, the question of achieving procedural and substantive justice in the context of judicial dispute resolution has received significant attention beginning with the work of Owen Fiss and Lon Fuller who articulated early insights into the role, forms and limits of adjudication. Fiss argued that the purpose of adjudication is to provide a public forum...
August 24, 2018
The question of voluntary and mandatory ADR including arbitration has been a richly debated topic in many jurisdictions. Since the mid-twentieth century, the question of achieving procedural and substantive justice in the context of judicial dispute resolution has received significant attention beginning with the work of Owen Fiss and Lon Fuller who articulated early insights into the role, forms and limits of adjudication. Fiss argued that the purpose of adjudication is to provide a public forum...
Are Third-Party Funding Costs Recoverable in Arbitration?
August 23, 2018
Third-party litigation and arbitration funding is increasingly being utilized in the United States. Are the corresponding financing costs recoverable in arbitrations? According to the N.Y. Times, dispute resolution funding was at least a $10 billion industry in 2018 and is expected to continue growing. Funders are expanding beyond their wide acceptance in IP litigation into new markets like international arbitration and complex commercial litigation. For instance, a recent study by funder Burford...
August 23, 2018
Third-party litigation and arbitration funding is increasingly being utilized in the United States. Are the corresponding financing costs recoverable in arbitrations? According to the N.Y. Times, dispute resolution funding was at least a $10 billion industry in 2018 and is expected to continue growing. Funders are expanding beyond their wide acceptance in IP litigation into new markets like international arbitration and complex commercial litigation. For instance, a recent study by funder Burford...
Second Circuit Vacates Order Denying Arbitration of Former Department Store Employee’s ADA Claims
August 22, 2018
The United States Court of Appeals for the Second Circuit has vacated a district court’s order stating a former department store employee cannot be compelled to arbitrate his Americans with Disabilities Act claims against the store. In Weiss v. Macy’s Retail Holdings, Inc., No. 17-2219 (2d Cir., July 12, 2018), a man with a learning disability, Weiss, was hired by Macy’s in 1997. In 2003, Macy’s instituted an employee dispute resolution process that required all disputes...
August 22, 2018
The United States Court of Appeals for the Second Circuit has vacated a district court’s order stating a former department store employee cannot be compelled to arbitrate his Americans with Disabilities Act claims against the store. In Weiss v. Macy’s Retail Holdings, Inc., No. 17-2219 (2d Cir., July 12, 2018), a man with a learning disability, Weiss, was hired by Macy’s in 1997. In 2003, Macy’s instituted an employee dispute resolution process that required all disputes...
Investment Arbitrations: Do Tribunals Take the Role of a Supra-National Appellate Court above National Courts?
August 21, 2018
The fact that a state can be held liable for its organs’ conduct is part of a wider notion that sees states as responsible for their internationally wrongful acts. This notion was codified in the ILC Articles of State Responsibility. Article 1 states that “every internationally wrongful act of a State entails the international responsibility of that State”. Article 4 continues by stating, inter alia, that “the conduct of any State organ shall be considered an act of that State under international...
August 21, 2018
The fact that a state can be held liable for its organs’ conduct is part of a wider notion that sees states as responsible for their internationally wrongful acts. This notion was codified in the ILC Articles of State Responsibility. Article 1 states that “every internationally wrongful act of a State entails the international responsibility of that State”. Article 4 continues by stating, inter alia, that “the conduct of any State organ shall be considered an act of that State under international...
How Concepcion and Italian Colors Affected Terms of Service Contracts in the Gig Economy
August 20, 2018
This study examines whether companies in the gig economy altered their contract terms following two landmark Supreme Court decisions affirming the enforceability of class action waivers in arbitration agreements: AT&T Mobility, LLC v. Concepcion and American Express v. Italian Colors Restaurant. Many of the companies in the study appear to have been influenced by the decisions. The study analyzes Terms of Service contracts from 38 gig companies between 2009 and 2016. Prior to 2012, only about...
August 20, 2018
This study examines whether companies in the gig economy altered their contract terms following two landmark Supreme Court decisions affirming the enforceability of class action waivers in arbitration agreements: AT&T Mobility, LLC v. Concepcion and American Express v. Italian Colors Restaurant. Many of the companies in the study appear to have been influenced by the decisions. The study analyzes Terms of Service contracts from 38 gig companies between 2009 and 2016. Prior to 2012, only about...
The Future of Investment Arbitration in Europe
August 17, 2018
It has long been said that investment treaty arbitration is at a crossroad. This is probably most true within the European Union, where a profound recalibration and reform of the system is underway. On 6 March of this year, the Court of Justice of the European Union (the “CJEU”) rendered its judgment in Case C-284/16 Slowakische Republik v. Achmea BV (“Achmea”), finding that arbitration clauses included in international agreements between the Member States providing for investor-State arbitration...
August 17, 2018
It has long been said that investment treaty arbitration is at a crossroad. This is probably most true within the European Union, where a profound recalibration and reform of the system is underway. On 6 March of this year, the Court of Justice of the European Union (the “CJEU”) rendered its judgment in Case C-284/16 Slowakische Republik v. Achmea BV (“Achmea”), finding that arbitration clauses included in international agreements between the Member States providing for investor-State arbitration...
Efficient Arbitration – Part 1: Metrics
August 17, 2018
This is the first in a series of articles by Schoenherr focusing on efficiency in arbitration. In our series, we will explore various tools which serve to improve the efficiency of any given arbitration and so achieve a favourable outcome without wasting resources. But before exploring those tools we need to determine what efficient arbitration actually means. Thanks to its well-known advantages, arbitration has grown exponentially over the past few decades. However, as more complex, high-value...
August 17, 2018
This is the first in a series of articles by Schoenherr focusing on efficiency in arbitration. In our series, we will explore various tools which serve to improve the efficiency of any given arbitration and so achieve a favourable outcome without wasting resources. But before exploring those tools we need to determine what efficient arbitration actually means. Thanks to its well-known advantages, arbitration has grown exponentially over the past few decades. However, as more complex, high-value...
Contracting Out of Public Law
August 15, 2018
In contract law, standard interpretive doctrine instructs courts to give effect to the intentions of the parties. Efficiency is promoted, we are told, by reducing state intervention into autonomous private decision-making, particularly when contracting parties are sophisticated corporate entities that can presumably bargain for their interests. Enabled by rules adopted over the past several decades expanding the freedom to contract, private entities increasingly control every aspect of their engagement,...
August 15, 2018
In contract law, standard interpretive doctrine instructs courts to give effect to the intentions of the parties. Efficiency is promoted, we are told, by reducing state intervention into autonomous private decision-making, particularly when contracting parties are sophisticated corporate entities that can presumably bargain for their interests. Enabled by rules adopted over the past several decades expanding the freedom to contract, private entities increasingly control every aspect of their engagement,...
Second Circuit Vacates Order Denying Arbitration of Former Department Store Employee’s ADA Claims
August 15, 2018
The United States Court of Appeals for the Second Circuit has vacated a district court’s order stating a former department store employee cannot be compelled to arbitrate his Americans with Disabilities Act claims against the store. In Weiss v. Macy’s Retail Holdings, Inc., No. 17-2219 (2d Cir., July 12, 2018), a man with a learning disability, Weiss, was hired by Macy’s in 1997. In 2003, Macy’s instituted an employee dispute resolution process that required all disputes...
August 15, 2018
The United States Court of Appeals for the Second Circuit has vacated a district court’s order stating a former department store employee cannot be compelled to arbitrate his Americans with Disabilities Act claims against the store. In Weiss v. Macy’s Retail Holdings, Inc., No. 17-2219 (2d Cir., July 12, 2018), a man with a learning disability, Weiss, was hired by Macy’s in 1997. In 2003, Macy’s instituted an employee dispute resolution process that required all disputes...
