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Arbitration
SCOTUS Agrees to Consider Arbitrability of Independent Contractor Agreements
April 6, 2018
The United States Supreme Court has granted certiorari in a case involving the arbitrability of independent contractor agreements. In New Prime Inc. v. Oliveira, No. 17-340, an interstate trucking company, New Prime, recruited new drivers through a paid student apprenticeship program. A man, Oliveira, completed the program and elected to drive for New Prime as an independent contractor. New Prime then directed Oliveira to an accounting firm and truck leasing company...
April 6, 2018
The United States Supreme Court has granted certiorari in a case involving the arbitrability of independent contractor agreements. In New Prime Inc. v. Oliveira, No. 17-340, an interstate trucking company, New Prime, recruited new drivers through a paid student apprenticeship program. A man, Oliveira, completed the program and elected to drive for New Prime as an independent contractor. New Prime then directed Oliveira to an accounting firm and truck leasing company...
Arbitration of Internal Trust Disputes: The Next Frontier for International Commercial Arbitration?
April 5, 2018
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, Senior Fellow...
April 5, 2018
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, Senior Fellow...
Corpus Christi COA Holds Arbitrator Must Decide Whether Arbitral Clause Was Illusory
April 4, 2018
The Court of Appeals of Texas in Corpus Christi has ruled that a wrongful death lawsuit should be submitted to arbitration. In Mission Petroleum Carriers, Inc. v. Dreese, No. 13-17-00102-CV (Tex. App. – Corpus Christi, March 8, 2018), a man, Perez, was unfortunately killed in a traffic crash while driving a freight truck that was owned by his employer, Mission Petroleum Carriers, Inc. (“MPC”). Following the worker’s death, his children filed a wrongful death lawsuit against MPC in...
April 4, 2018
The Court of Appeals of Texas in Corpus Christi has ruled that a wrongful death lawsuit should be submitted to arbitration. In Mission Petroleum Carriers, Inc. v. Dreese, No. 13-17-00102-CV (Tex. App. – Corpus Christi, March 8, 2018), a man, Perez, was unfortunately killed in a traffic crash while driving a freight truck that was owned by his employer, Mission Petroleum Carriers, Inc. (“MPC”). Following the worker’s death, his children filed a wrongful death lawsuit against MPC in...
Value and Judgment in Investment Treaty Arbitration
April 3, 2018
Professor Frederic G. Sourgens, Director of the Oil and Gas Law Center at Washburn University School of Law, has published “Value and Judgment in Investment Treaty Arbitration,” Journal of Dispute Resolution, Vol. 2018, No. 1, 2018. In his paper, Professor Sourgens examines arbitration in the context of disputes between foreign investors and host nations. Here is the abstract: Are international treaties consenting to the resolution of disputes between foreign investors...
April 3, 2018
Professor Frederic G. Sourgens, Director of the Oil and Gas Law Center at Washburn University School of Law, has published “Value and Judgment in Investment Treaty Arbitration,” Journal of Dispute Resolution, Vol. 2018, No. 1, 2018. In his paper, Professor Sourgens examines arbitration in the context of disputes between foreign investors and host nations. Here is the abstract: Are international treaties consenting to the resolution of disputes between foreign investors...
Your Arbitration Is Not Yet Filed, But Attachment in Aid of That Arbitration May Be Available
April 2, 2018
The courts undoubtedly have the power to grant provisional remedies in aid of a pending arbitration – including temporary restraining orders, preliminary injunctions, and attachments. As a recent Fifth Circuit decision reminds us, the courts also can grant such remedies in aid of an arbitration that has yet to be commenced. Indeed, those remedies may be available under state law, even if the future arbitration is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral...
April 2, 2018
The courts undoubtedly have the power to grant provisional remedies in aid of a pending arbitration – including temporary restraining orders, preliminary injunctions, and attachments. As a recent Fifth Circuit decision reminds us, the courts also can grant such remedies in aid of an arbitration that has yet to be commenced. Indeed, those remedies may be available under state law, even if the future arbitration is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral...
Dissecting Common Basic Arbitration Clauses — You Can Build a Better One
March 30, 2018
Arbitration is often promoted as faster, cheaper, more predictable, and more controllable than litigation. But to many, arbitration’s promise comes up short on delivery. Why? A prime reason is that many parties do not make use of their ability to shape a proceeding that fulfills those promises, and end up with an arbitration that is more time consuming, more expensive, and less predictable than it could have been. Arbitration is actually the ultimate Choose Your Own Adventure story. Each arbitral...
March 30, 2018
Arbitration is often promoted as faster, cheaper, more predictable, and more controllable than litigation. But to many, arbitration’s promise comes up short on delivery. Why? A prime reason is that many parties do not make use of their ability to shape a proceeding that fulfills those promises, and end up with an arbitration that is more time consuming, more expensive, and less predictable than it could have been. Arbitration is actually the ultimate Choose Your Own Adventure story. Each arbitral...
Pre-Arbitration Discovery: Turn to State Law Where the Federal Rules are Inadequate
March 29, 2018
As discussed in an earlier post, obtaining discovery from a non-party to an arbitration often is easier said than done....
March 29, 2018
As discussed in an earlier post, obtaining discovery from a non-party to an arbitration often is easier said than done....
“Ambiguity” Is Not a Basis to Deny a Petition to Enforce a Foreign Arbitration Award
March 29, 2018
The drive in the Second Circuit to clarify the rules regarding confirmation and enforcement of various types of arbitration awards continues. The latest addition is the decision in BSH Hausgerate GmbH v. Kamhi, 17 Civ. 5776, 2018 U.S. Dist. LEXIS 34597 (S.D.N.Y Mar. 2, 2018) (Sweet, J.). Federal district courts have occasionally decided that an arbitration award is ambiguous or incomplete or indefinite, and therefore should be remanded to the arbitrator for clarification rather than confirmed by the court....
March 29, 2018
The drive in the Second Circuit to clarify the rules regarding confirmation and enforcement of various types of arbitration awards continues. The latest addition is the decision in BSH Hausgerate GmbH v. Kamhi, 17 Civ. 5776, 2018 U.S. Dist. LEXIS 34597 (S.D.N.Y Mar. 2, 2018) (Sweet, J.). Federal district courts have occasionally decided that an arbitration award is ambiguous or incomplete or indefinite, and therefore should be remanded to the arbitrator for clarification rather than confirmed by the court....
Arbitrability Basics: An Illustration of the “Autonomy” Principle
March 27, 2018
Arbitration is a creature of contract. So is the law concerning contracts with an arbitration clause the same as the law concerning any other contract? Almost. One must always bear in mind the “separability” or “independence” of the arbitration agreement — the autonomy principle. For example, should a plaintiff be compelled to arbitrate a dispute if the contract containing the ADR clause has expired? What if the contract containing the arbitration clause is unconscionable as a matter...
March 27, 2018
Arbitration is a creature of contract. So is the law concerning contracts with an arbitration clause the same as the law concerning any other contract? Almost. One must always bear in mind the “separability” or “independence” of the arbitration agreement — the autonomy principle. For example, should a plaintiff be compelled to arbitrate a dispute if the contract containing the ADR clause has expired? What if the contract containing the arbitration clause is unconscionable as a matter...
“Gaming the System” Does Not Substantially Invoke the Judicial Process
March 21, 2018
Hiawatha Henry, Addie Harris, Montray Norris, and Roosevelt Coleman, Jr. (referred to as "the Borrowing Parties") received payday loans from Cash Biz. Each of the Borrowing Parties gave Cash Biz post-dated checks, and signed arbitration agreements that contained a class-action waiver. Cash Biz tried to cash the post-dated checks after the Borrowing Parties defaulted, but the checks bounced. The district attorney filed criminal charges against the Borrowing Parties after receiving information from...
March 21, 2018
Hiawatha Henry, Addie Harris, Montray Norris, and Roosevelt Coleman, Jr. (referred to as "the Borrowing Parties") received payday loans from Cash Biz. Each of the Borrowing Parties gave Cash Biz post-dated checks, and signed arbitration agreements that contained a class-action waiver. Cash Biz tried to cash the post-dated checks after the Borrowing Parties defaulted, but the checks bounced. The district attorney filed criminal charges against the Borrowing Parties after receiving information from...
