Arbitration
Third Party Funding in Investment Arbitration: Time to Change Double Standards Employed for Awarding Security for Costs?
August 14, 2018
Security for costs is a controversial territory in international arbitration, especially in investment arbitration. On one side is the respondent State which seeks security for defending a claim with the taxpayers’ resources. However, on the other side, there is the claimant who might become financially incapable of accessing justice if it is asked to put up security for costs. Add a Third-Party Funder to the mix, and a tribunal’s challenges get multiplied. Moreover, the unclear standards as to an award...
August 14, 2018
Security for costs is a controversial territory in international arbitration, especially in investment arbitration. On one side is the respondent State which seeks security for defending a claim with the taxpayers’ resources. However, on the other side, there is the claimant who might become financially incapable of accessing justice if it is asked to put up security for costs. Add a Third-Party Funder to the mix, and a tribunal’s challenges get multiplied. Moreover, the unclear standards as to an award...
No Arbitration Because Ricky Martin Is a Singer, Not a Signer
August 14, 2018
Before the last World Cup, Sony sponsored a song-writing contest. It invited entrants to submit an original song and music video, with a promise that the winning composition would be on the official World Cup Album. (Didn’t know there was such a thing? Check out the songs.) The plaintiff in this case submitted his song, but did not win. About two years later, Ricky Martin (who had been involved with the World Cup contest) released the song “Vida.” Plaintiff alleged that the “Vida”...
August 14, 2018
Before the last World Cup, Sony sponsored a song-writing contest. It invited entrants to submit an original song and music video, with a promise that the winning composition would be on the official World Cup Album. (Didn’t know there was such a thing? Check out the songs.) The plaintiff in this case submitted his song, but did not win. About two years later, Ricky Martin (who had been involved with the World Cup contest) released the song “Vida.” Plaintiff alleged that the “Vida”...
Fifth Circuit: Lack of Employer’s Signature Dooms Arbitration Agreement
August 10, 2018
In a good win for employees fighting against the tide to bring their claims in court, the Fifth Circuit reversed a lower court’s decision to compel arbitration because the employer had failed to sign the arbitration agreement. Huckaba v. Ref-Chem, LP, No. 17-50341 (5th Cir. June 11, 2018) (click here for a copy of the decision).
August 10, 2018
In a good win for employees fighting against the tide to bring their claims in court, the Fifth Circuit reversed a lower court’s decision to compel arbitration because the employer had failed to sign the arbitration agreement. Huckaba v. Ref-Chem, LP, No. 17-50341 (5th Cir. June 11, 2018) (click here for a copy of the decision).
Efficient Arbitration – Part 3: Winning an Efficient Arbitration
August 9, 2018
Following up on Efficient Arbitration – Part 2: Launching an Efficient Arbitration, where we addressed efficiency tools available at the early stages, we now provide an overview of options to save time and costs up until the award. As we continue our efficiency series, we will zone in on a selection of efficiency tools and discuss our experience using them. 5. Focusing the Evidence Gathering and presenting the right evidence is key. This often requires close cooperation between counsel...
August 9, 2018
Following up on Efficient Arbitration – Part 2: Launching an Efficient Arbitration, where we addressed efficiency tools available at the early stages, we now provide an overview of options to save time and costs up until the award. As we continue our efficiency series, we will zone in on a selection of efficiency tools and discuss our experience using them. 5. Focusing the Evidence Gathering and presenting the right evidence is key. This often requires close cooperation between counsel...
The Potential Pitfalls of Contesting Arbitrability in the Arbitration
August 9, 2018
When an agreement to arbitrate contains a clear and unmistakable “delegation” provision, gateway questions of arbitrability are for the arbitrator to decide. See, e.g., Kubala v. Supreme Prod. Servs., 830 F.3d 199, 201-02 (5th Cir. 2016), citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995); Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63 (2010). But a determination of the delegation issue is not always obvious, and it is sometimes presented to an arbitrator, rather than to a court,...
August 9, 2018
When an agreement to arbitrate contains a clear and unmistakable “delegation” provision, gateway questions of arbitrability are for the arbitrator to decide. See, e.g., Kubala v. Supreme Prod. Servs., 830 F.3d 199, 201-02 (5th Cir. 2016), citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995); Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63 (2010). But a determination of the delegation issue is not always obvious, and it is sometimes presented to an arbitrator, rather than to a court,...
Sign the Arbitration Agreement
August 8, 2018
Lots of appellate arbitration cases concern signatories, non-signatories, and other related issues. Ref-Chern, L.P.'s arbitration agreement with its employee Kimberly Huckaba made it clear, at least to the Fifth Circuit, that the parties intended that both employer and employee sign their arbitration agreement as a condition precedent to its validity. Because the employer did not sign its arbitration agreement with Huckaba, the District Court for the Western District of Texas erred in compelling...
August 8, 2018
Lots of appellate arbitration cases concern signatories, non-signatories, and other related issues. Ref-Chern, L.P.'s arbitration agreement with its employee Kimberly Huckaba made it clear, at least to the Fifth Circuit, that the parties intended that both employer and employee sign their arbitration agreement as a condition precedent to its validity. Because the employer did not sign its arbitration agreement with Huckaba, the District Court for the Western District of Texas erred in compelling...
Reputation Arbitration: Building a Decentralized Reputation System for Arbitrators?
August 7, 2018
Under arbitration, the parties submit their disputes to an arbitral tribunal (or sole arbitrator) who rules on pre-hearing disputes, conducts the arbitration, and issues a binding award on the parties. However, the desirability of arbitration as a dispute-resolution mechanism rests largely on the perception of the reputation of the arbitrators. On the one hand, the arbitrator has a reputational concern, in the sense that he/she wishes to appear competent, independent, and impartial to the parties....
August 7, 2018
Under arbitration, the parties submit their disputes to an arbitral tribunal (or sole arbitrator) who rules on pre-hearing disputes, conducts the arbitration, and issues a binding award on the parties. However, the desirability of arbitration as a dispute-resolution mechanism rests largely on the perception of the reputation of the arbitrators. On the one hand, the arbitrator has a reputational concern, in the sense that he/she wishes to appear competent, independent, and impartial to the parties....
U.S. Supreme Court Holds That Individualized Employer-Employee Arbitration Agreements Must Be Enforced As Written
August 7, 2018
On May 21st, 2018, the Supreme Court of the United States in Epic Systems Corp. v. Lewis(“Epic Systems”) held in a 5-4 majority that one-on-one mandatory arbitration agreements imposed by employers upon their employees must be enforced as written in accordance with the Federal Arbitration Act (“FAA”). The majority opinion, written by Justice Neil Gorsuch, reasoned that the FAA superseded the federal right of employees to bring claims in class or collective actions contained in the National...
August 7, 2018
On May 21st, 2018, the Supreme Court of the United States in Epic Systems Corp. v. Lewis(“Epic Systems”) held in a 5-4 majority that one-on-one mandatory arbitration agreements imposed by employers upon their employees must be enforced as written in accordance with the Federal Arbitration Act (“FAA”). The majority opinion, written by Justice Neil Gorsuch, reasoned that the FAA superseded the federal right of employees to bring claims in class or collective actions contained in the National...
Court Vacates Arbitration Award Because it Rewrote the Parties’ Collective Bargaining Agreement
August 6, 2018
New York’s arbitration law (Article 75 of the CPLR), like the Federal Arbitration Act (the “FAA”), strictly limits award challenges premised on an arbitrator’s disregard of the parties’ contract. Arbitrator interpretations of the parties’ agreement cannot be second-guessed, even if the arbitrator has “disregarded” “the apparent, or even the plain, meaning of the words of the contract….”Maross Constr. v Central N. Y. Regional Transp. Auth., 66 N.Y 2d 341, 346 (1985) (quotations...
August 6, 2018
New York’s arbitration law (Article 75 of the CPLR), like the Federal Arbitration Act (the “FAA”), strictly limits award challenges premised on an arbitrator’s disregard of the parties’ contract. Arbitrator interpretations of the parties’ agreement cannot be second-guessed, even if the arbitrator has “disregarded” “the apparent, or even the plain, meaning of the words of the contract….”Maross Constr. v Central N. Y. Regional Transp. Auth., 66 N.Y 2d 341, 346 (1985) (quotations...
First Circuit: Uber’s Arbitration Clause Not Enforceable
August 3, 2018
There is a growing body of law analyzing the formation of online arbitration agreements, and the First Circuit’s recent opinion in Cullinane v. Uber Technologies, Inc., No. 16-2023 (1st Cir. June 25, 2018) (click here for a copy of the decision) adds to this growing corpus. This decision is a must-read for anyone creating or challenging online arbitration agreements.
August 3, 2018
There is a growing body of law analyzing the formation of online arbitration agreements, and the First Circuit’s recent opinion in Cullinane v. Uber Technologies, Inc., No. 16-2023 (1st Cir. June 25, 2018) (click here for a copy of the decision) adds to this growing corpus. This decision is a must-read for anyone creating or challenging online arbitration agreements.
