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Arbitration
Disrupting Work Law: Arbitration in the Gig Economy
May 17, 2018
Charlotte Garden, Co-Associate Dean for Research and Faculty Development and Associate Professor of Law at Seattle University School of Law, has authored an interesting paper titled “Disrupting Work Law: Arbitration in the Gig Economy,” 2017 University of Chicago Legal Forum 205 (2018). In her publication, Associate Dean Garden discusses individual arbitration clauses in the context of gig economy workers. The abstract states: It is presently in style to speculate...
May 17, 2018
Charlotte Garden, Co-Associate Dean for Research and Faculty Development and Associate Professor of Law at Seattle University School of Law, has authored an interesting paper titled “Disrupting Work Law: Arbitration in the Gig Economy,” 2017 University of Chicago Legal Forum 205 (2018). In her publication, Associate Dean Garden discusses individual arbitration clauses in the context of gig economy workers. The abstract states: It is presently in style to speculate...
Spring State Court Smorgasbord: Seven Decisions Friendly To Arbitration
May 16, 2018
The others can be reviewed more quickly: Substantive unconscionability cannot be established by showing only that the arbitration agreement is broad in scope. The Federal Arbitration Act applies to arbitration agreements within a common interest community’s covenants (and preempts conflicting state law). Non-signatories may compel arbitration if the plaintiff’s claims are based on facts that are “intertwined” with arbitrable claims. Scope of arbitration agreement broad...
May 16, 2018
The others can be reviewed more quickly: Substantive unconscionability cannot be established by showing only that the arbitration agreement is broad in scope. The Federal Arbitration Act applies to arbitration agreements within a common interest community’s covenants (and preempts conflicting state law). Non-signatories may compel arbitration if the plaintiff’s claims are based on facts that are “intertwined” with arbitrable claims. Scope of arbitration agreement broad...
When Seeking to Compel Arbitration, a Motion to Dismiss Is Sometimes the First Step
May 14, 2018
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., provides the usual means of enforcing an arbitration agreement by compelling a party to arbitrate rather than litigate. Thus, the FAA enables an aggrieved party to seek “an order directing that such arbitration proceed in a manner provided for in such agreement.” 9 U.S.C. § 4. However, when (i) a judicial proceeding concerning the claims in question is already pending, and (ii) the applicable arbitration agreement provides...
May 14, 2018
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., provides the usual means of enforcing an arbitration agreement by compelling a party to arbitrate rather than litigate. Thus, the FAA enables an aggrieved party to seek “an order directing that such arbitration proceed in a manner provided for in such agreement.” 9 U.S.C. § 4. However, when (i) a judicial proceeding concerning the claims in question is already pending, and (ii) the applicable arbitration agreement provides...
Spring State Court Smorgasbord: Three Decisions Hostile To Arbitration
May 14, 2018
The focus today is recent state appellate court decisions on arbitration. Because there are an awful lot of them, I am going...
May 14, 2018
The focus today is recent state appellate court decisions on arbitration. Because there are an awful lot of them, I am going...
A Convention on the enforcement of iMSAs …. AND a new Model Law
May 11, 2018
So the mediation community is now very close to getting its own “New York Convention” in addition to a Model Law (amending...
May 11, 2018
So the mediation community is now very close to getting its own “New York Convention” in addition to a Model Law (amending...
Whiplash: When a Court Finds That the Parties’ Claims Are Within the Scope of a Valid Arbitration Agreement, But It Will Not Compel Arbitration
May 10, 2018
Is there such a thing as an arbitration joke? Here is a test. Two plaintiffs walk into a court, claiming that each was wrongfully terminated by a bank (UBS). The bank moves to compel arbitration by plaintiff one; and it moves to dismiss the judicial claim of plaintiff two because that plaintiff had already brought his claim in an arbitration that he commenced. The Court finds that both plaintiffs are bound by arbitration agreements with UBS and that their claims are within the scope of the arbitration...
May 10, 2018
Is there such a thing as an arbitration joke? Here is a test. Two plaintiffs walk into a court, claiming that each was wrongfully terminated by a bank (UBS). The bank moves to compel arbitration by plaintiff one; and it moves to dismiss the judicial claim of plaintiff two because that plaintiff had already brought his claim in an arbitration that he commenced. The Court finds that both plaintiffs are bound by arbitration agreements with UBS and that their claims are within the scope of the arbitration...
When Seeking to Enforce an ICSID Arbitration Award Against a Foreign Sovereign, Think FSIA First
May 7, 2018
An ex parte proceeding in a U.S. court to “recognize,” “enforce,” or “confirm” an arbitration award against a foreign sovereign is improper. The U.S. Court of Appeals for the Second Circuit issued a lengthy and instructive decision to that effect in Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863 F.3d 96 (2d. Cir. 2017). Its lesson is that in the United States, the only way to enforce (or recognize or confirm) an arbitral award issued against a sovereign entity by the International...
May 7, 2018
An ex parte proceeding in a U.S. court to “recognize,” “enforce,” or “confirm” an arbitration award against a foreign sovereign is improper. The U.S. Court of Appeals for the Second Circuit issued a lengthy and instructive decision to that effect in Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863 F.3d 96 (2d. Cir. 2017). Its lesson is that in the United States, the only way to enforce (or recognize or confirm) an arbitral award issued against a sovereign entity by the International...
U.S. District Courts Rule Consent Awards Fall Within New York Convention
May 7, 2018
The importance of memorializing a settlement agreement into a consent award was recently highlighted in Transocean Offshore Gulf of Guinea Vii v. Erin Energy Corp., Case No. H-17-2623 (S.D. Tex. March 12, 2018). There, a Texas district court addressed whether a consent award is subject to confirmation in the United States pursuant to the New York Convention, as codified in the Federal Arbitration Act. The underlying case involved a contract dispute over drilling equipment and services located in waters...
May 7, 2018
The importance of memorializing a settlement agreement into a consent award was recently highlighted in Transocean Offshore Gulf of Guinea Vii v. Erin Energy Corp., Case No. H-17-2623 (S.D. Tex. March 12, 2018). There, a Texas district court addressed whether a consent award is subject to confirmation in the United States pursuant to the New York Convention, as codified in the Federal Arbitration Act. The underlying case involved a contract dispute over drilling equipment and services located in waters...
Legislating for an Effective and Legitimate System of Online Consumer Arbitration
May 3, 2018
This chapter addresses the conflict between the restrictive and negative view often taken towards consumer arbitration and the supportive and positive view often taken towards ODR by arguing that a properly designed system of online consumer arbitration can fulfil the promise of consumer arbitration while avoiding its greatest risks. After clarifying what is meant by the term “online arbitration” and addressing the important differences that exist between commercial arbitration and consumer arbitration,...
May 3, 2018
This chapter addresses the conflict between the restrictive and negative view often taken towards consumer arbitration and the supportive and positive view often taken towards ODR by arguing that a properly designed system of online consumer arbitration can fulfil the promise of consumer arbitration while avoiding its greatest risks. After clarifying what is meant by the term “online arbitration” and addressing the important differences that exist between commercial arbitration and consumer arbitration,...
The Uberization of Arbitration Clauses
May 1, 2018
In the early part of this decade, the Supreme Court’s decisions interpreting the Federal Arbitration Act (FAA) strictly enforced pre-dispute arbitration clauses (PDAAs) with class action waivers and so-called “delegation” provisions in consumer contracts. Just after the Court’s 2013 ruling that clauses with class action waivers did not prevent claimants from vindicating their statutory rights, Uber — a company at the heart of the “gig economy” — started inserting PDAAs in agreements...
May 1, 2018
In the early part of this decade, the Supreme Court’s decisions interpreting the Federal Arbitration Act (FAA) strictly enforced pre-dispute arbitration clauses (PDAAs) with class action waivers and so-called “delegation” provisions in consumer contracts. Just after the Court’s 2013 ruling that clauses with class action waivers did not prevent claimants from vindicating their statutory rights, Uber — a company at the heart of the “gig economy” — started inserting PDAAs in agreements...
