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Arbitration
Precedent and Dialogue in Investment Treaty Arbitration
June 8, 2018
Richard Chen, Associate Professor at the University of Maine School of Law, has published “Precedent and Dialogue in Investment Treaty Arbitration,” Harvard International Law Journal, Vol. 60, 2019 (Forthcoming). In his publication, Professor Chen provides readers with a comprehensive guide to utilizing investment treaty arbitration tribunal precedent. Here is the abstract: Since the turn of the century, investment treaty arbitration (ITA) tribunals have begun citing past decisions...
June 8, 2018
Richard Chen, Associate Professor at the University of Maine School of Law, has published “Precedent and Dialogue in Investment Treaty Arbitration,” Harvard International Law Journal, Vol. 60, 2019 (Forthcoming). In his publication, Professor Chen provides readers with a comprehensive guide to utilizing investment treaty arbitration tribunal precedent. Here is the abstract: Since the turn of the century, investment treaty arbitration (ITA) tribunals have begun citing past decisions...
Fifth Circuit Orders Independent Contractor to Individually Arbitrate FLSA Claims
June 7, 2018
The United States Court of Appeals for the Fifth Circuit has affirmed a district court’s order compelling an independent contractor to arbitrate his Fair Labor Standards Act (“FLSA”) claims against a restaurant food delivery service. In Edwards v. DoorDash, Inc., No. 17-20082 (5th Cir., April 25, 2018), a California-based company, DoorDash, utilized independent contractors called “Dashers” to deliver food from various restaurants to customers in hundreds of cities. ...
June 7, 2018
The United States Court of Appeals for the Fifth Circuit has affirmed a district court’s order compelling an independent contractor to arbitrate his Fair Labor Standards Act (“FLSA”) claims against a restaurant food delivery service. In Edwards v. DoorDash, Inc., No. 17-20082 (5th Cir., April 25, 2018), a California-based company, DoorDash, utilized independent contractors called “Dashers” to deliver food from various restaurants to customers in hundreds of cities. ...
SCOTX Vacates Arbitration Award in Crop Insurance Dispute
June 6, 2018
The Supreme Court of Texas has ruled that a contract signatory was erroneously “required to arbitrate its non-contractual claims against non-signatories” in a crop insurance dispute. According to a prior Disputing blog post: In Jody James Farms, JV v. The Altman Group, Inc. and Laurie Diaz, No. 17-0062, Jody JamesFarms (“JJF”) purchased crop insurance from Rain & Hail through an insurance agency, the Altman Group, in 2010. The insurance policy contained a lengthy...
June 6, 2018
The Supreme Court of Texas has ruled that a contract signatory was erroneously “required to arbitrate its non-contractual claims against non-signatories” in a crop insurance dispute. According to a prior Disputing blog post: In Jody James Farms, JV v. The Altman Group, Inc. and Laurie Diaz, No. 17-0062, Jody JamesFarms (“JJF”) purchased crop insurance from Rain & Hail through an insurance agency, the Altman Group, in 2010. The insurance policy contained a lengthy...
SCOTUS Grants Certiorari in Yet Another Class Arbitration Dispute
June 5, 2018
The Supreme Court of the United States has granted certiorari in yet another class arbitration dispute in the labor context. In Lamps Plus, Inc., et al. v. Varela, No. 17-988, a California man, Frank Varela, signed an agreement to arbitrate any future disputes with Lamps Plus as a condition of employment. The agreement was silent on the issue of class arbitration. Later, Varela filed a class-action lawsuit against his employer following a data breach that disclosed his personal information. In...
June 5, 2018
The Supreme Court of the United States has granted certiorari in yet another class arbitration dispute in the labor context. In Lamps Plus, Inc., et al. v. Varela, No. 17-988, a California man, Frank Varela, signed an agreement to arbitrate any future disputes with Lamps Plus as a condition of employment. The agreement was silent on the issue of class arbitration. Later, Varela filed a class-action lawsuit against his employer following a data breach that disclosed his personal information. In...
Legitimacy Pragmatism in International Arbitration: A Framework for Analysis
June 4, 2018
This chapter makes the simple point that if arbitral lawmaking is not legitimate to the actors who can change that lawmaking, it will likely be unstable and change. Obvious as the point may sound, it helps frame legitimacy debates in international arbitration in a way that makes them practically valuable: it narrows them down to a zone of so-called “conceptual cash-value”. Making that point requires to do two things. First, to decide what meaning is best given to the concept of “legitimacy”....
June 4, 2018
This chapter makes the simple point that if arbitral lawmaking is not legitimate to the actors who can change that lawmaking, it will likely be unstable and change. Obvious as the point may sound, it helps frame legitimacy debates in international arbitration in a way that makes them practically valuable: it narrows them down to a zone of so-called “conceptual cash-value”. Making that point requires to do two things. First, to decide what meaning is best given to the concept of “legitimacy”....
SCOTUS Adds Another Class Arbitration Case To Its Docket
May 31, 2018
Today the Supreme Court of the United States granted certiorari in another case involving the Federal Arbitration Act. The case, Lamps Plus, Inc. v. Varela, comes from the Ninth Circuit and raises a variation of the question from Sutter: how clear does an arbitration agreement need to be to show the parties authorized class arbitration? My initial summary of the Ninth Circuit opinion is here. It didn’t even merit an entire post of its own, but shared time with another circuit court opinion. ...
May 31, 2018
Today the Supreme Court of the United States granted certiorari in another case involving the Federal Arbitration Act. The case, Lamps Plus, Inc. v. Varela, comes from the Ninth Circuit and raises a variation of the question from Sutter: how clear does an arbitration agreement need to be to show the parties authorized class arbitration? My initial summary of the Ninth Circuit opinion is here. It didn’t even merit an entire post of its own, but shared time with another circuit court opinion. ...
Deterrence and Aggregate Litigation
May 30, 2018
This paper examines the deterrence properties of aggregate litigation and class actions, with an emphasis on positive value claims. In the multiple victim scenario with positive value claims, in the absence of the class action device, the probability that an individual victim will bring suit falls toward zero with geometric decay as the number of victims increases. The reason is that the incentive to free ride increases with the number of victims. Deterrence does not collapse but is degraded. Undercompliance...
May 30, 2018
This paper examines the deterrence properties of aggregate litigation and class actions, with an emphasis on positive value claims. In the multiple victim scenario with positive value claims, in the absence of the class action device, the probability that an individual victim will bring suit falls toward zero with geometric decay as the number of victims increases. The reason is that the incentive to free ride increases with the number of victims. Deterrence does not collapse but is degraded. Undercompliance...
Summary Disposal In Arbitration and Tribunals’ Ability To Order Summary Procedure Without Express Authority
May 30, 2018
The fundamental question is whether tribunals’ general power to conduct arbitral proceedings in a fair and efficient manner enables them to order a summary procedure in circumstances where the parties have not expressly agreed such procedure. The answer to this question can have important and costly ramifications. More broadly, the availability of summary disposal as part of the arbitration process can potentially impact the way in which arbitration may be perceived and used in the future. Certain...
May 30, 2018
The fundamental question is whether tribunals’ general power to conduct arbitral proceedings in a fair and efficient manner enables them to order a summary procedure in circumstances where the parties have not expressly agreed such procedure. The answer to this question can have important and costly ramifications. More broadly, the availability of summary disposal as part of the arbitration process can potentially impact the way in which arbitration may be perceived and used in the future. Certain...
Mississippi Clarifies When “Evident Miscalculation” Exists To Modify An Arbitration Award
May 29, 2018
The Supreme Court of Mississippi issued a new opinion that sheds light on a topic that doesn’t come up often: when can an arbitration award be modified due to miscalculation? D.W. Caldwell, Inc. v. W.G. Yates & Sons Construction Co., 2018 WL 2146355 (Miss. May 10, 2018). On appeal, the Mississippi Supreme Court reversed the trial court decision and instructed that the original award be confirmed. In doing so, it established some guidelines for handling these types of motions...
May 29, 2018
The Supreme Court of Mississippi issued a new opinion that sheds light on a topic that doesn’t come up often: when can an arbitration award be modified due to miscalculation? D.W. Caldwell, Inc. v. W.G. Yates & Sons Construction Co., 2018 WL 2146355 (Miss. May 10, 2018). On appeal, the Mississippi Supreme Court reversed the trial court decision and instructed that the original award be confirmed. In doing so, it established some guidelines for handling these types of motions...
The Interplay Between Arbitration Clauses in Employment Contracts and Labor Laws
May 28, 2018
A recent case out of the Southern District of California, Davis v. Red Eye Jack's Sports Bar, Inc., Case No.: 3-17-cv-01111-BEN-JMA (behind...
May 28, 2018
A recent case out of the Southern District of California, Davis v. Red Eye Jack's Sports Bar, Inc., Case No.: 3-17-cv-01111-BEN-JMA (behind...
