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Arbitration
Texas Federal Court Holds New DOL Regulations Do Not Violate the FAA
February 23, 2017
The Northern District of Texas has ruled new Department of Labor (“DOL”) regulations that would require financial institutions to preserve an investor’s right to bring or participate in a class action do not violate the Federal Arbitration Act (“FAA”). In Chamber of Commerce of the United States of America, et al. v. U.S. Department of Labor, et al., No. 3:16-cv-01476 (N.D. Texas, February 8, 2017), a group of plaintiffs brought a lawsuit challenging new DOL regulations that are scheduled...
February 23, 2017
The Northern District of Texas has ruled new Department of Labor (“DOL”) regulations that would require financial institutions to preserve an investor’s right to bring or participate in a class action do not violate the Federal Arbitration Act (“FAA”). In Chamber of Commerce of the United States of America, et al. v. U.S. Department of Labor, et al., No. 3:16-cv-01476 (N.D. Texas, February 8, 2017), a group of plaintiffs brought a lawsuit challenging new DOL regulations that are scheduled...
ICSID Orders Ecuador to Pay $380 Million to U.S. Oil Exploration Company Over Investment Treaty Violations
February 21, 2017
An International Centre for Settlement of Investment Disputes (“ICSID”) arbitration tribunal has ordered the Republic of Ecuador to pay a ConocoPhillips’ wholly-owned subsidiary nearly $380 million related to Ecuador’s breach of a bilateral investment treaty (“BIT”) with the United States. In Burlington Resources Inc., et al. v. Republic of Ecuador, No. ARB/08/5 (ICSID, February 7, 2017), Burlington sought arbitration before the ICSID over two production-sharing contracts related to oil exploration...
February 21, 2017
An International Centre for Settlement of Investment Disputes (“ICSID”) arbitration tribunal has ordered the Republic of Ecuador to pay a ConocoPhillips’ wholly-owned subsidiary nearly $380 million related to Ecuador’s breach of a bilateral investment treaty (“BIT”) with the United States. In Burlington Resources Inc., et al. v. Republic of Ecuador, No. ARB/08/5 (ICSID, February 7, 2017), Burlington sought arbitration before the ICSID over two production-sharing contracts related to oil exploration...
Alternative Dispute Resolution
February 20, 2017
In this Survey year, there are relatively few developments in the law of ADR. Were this to be a survey of the developments in the practice of ADR, this article could be hundreds of pages long. This year, however, there are no reported appellate cases to summarize pertaining to mediation, only an update on a recent controversial legislative development. And in the field of arbitration, although controversy abounds, the most significant development involved a U.S. Supreme Court decision on the waiver...
February 20, 2017
In this Survey year, there are relatively few developments in the law of ADR. Were this to be a survey of the developments in the practice of ADR, this article could be hundreds of pages long. This year, however, there are no reported appellate cases to summarize pertaining to mediation, only an update on a recent controversial legislative development. And in the field of arbitration, although controversy abounds, the most significant development involved a U.S. Supreme Court decision on the waiver...
Private Judges in Divorce
February 19, 2017
From Vanity Fair: For the past four months, Brad Pitt and Angelina Jolie’s divorce has been plagued by the kind of accusations that make a celebrity split resemble more of a soap-opera circus than a marital dissolution. But on Monday, the movie-star couple reached a major turning point by deciding to put any behind-the-scenes pot-stirring behind them—good-bye rumors of substance and child abuse, P.R. manipulation (Jolie’s camp has denied any such manipulation), etc.—by issuing a joint statement...
February 19, 2017
From Vanity Fair: For the past four months, Brad Pitt and Angelina Jolie’s divorce has been plagued by the kind of accusations that make a celebrity split resemble more of a soap-opera circus than a marital dissolution. But on Monday, the movie-star couple reached a major turning point by deciding to put any behind-the-scenes pot-stirring behind them—good-bye rumors of substance and child abuse, P.R. manipulation (Jolie’s camp has denied any such manipulation), etc.—by issuing a joint statement...
When An Arbitration Clause Sounds Permissive But Is Not
February 16, 2017
Is an arbitration clause mandatory or permissive when it provides that either party to the contract may elect to submit a dispute to binding arbitration? What if the contract also provides that the right to arbitrate is not exclusive of any other rights that a party has to pursue legal action in an appropriate forum? Such an arbitration clause certainly sounds permissive. But courts have invested a lot of ink addressing the question, and (spoiler alert!) they have more or less consistently...
February 16, 2017
Is an arbitration clause mandatory or permissive when it provides that either party to the contract may elect to submit a dispute to binding arbitration? What if the contract also provides that the right to arbitrate is not exclusive of any other rights that a party has to pursue legal action in an appropriate forum? Such an arbitration clause certainly sounds permissive. But courts have invested a lot of ink addressing the question, and (spoiler alert!) they have more or less consistently...
Texas: Trial Court Did Not Abuse Discretion in Denying Motion to Strike
February 15, 2017
In Didmon v. American Arbitration Association, Inc. et al., the First Court of Appeals held that the trial court correctly...
February 15, 2017
In Didmon v. American Arbitration Association, Inc. et al., the First Court of Appeals held that the trial court correctly...
Diversity and Uniformity in International Arbitration Law
February 9, 2017
This essay seeks to provide a counterbalance to the frequent push for greater uniformity in international arbitration law. The New York Convention and the UNCITRAL Model Law both have made international arbitration law more uniform, and that increased uniformity no doubt has benefited parties and the system of international arbitration as a whole. But in deciding whether to make further reforms to international arbitration law, policy makers must do more than simply accept that uniformity has benefits....
February 9, 2017
This essay seeks to provide a counterbalance to the frequent push for greater uniformity in international arbitration law. The New York Convention and the UNCITRAL Model Law both have made international arbitration law more uniform, and that increased uniformity no doubt has benefited parties and the system of international arbitration as a whole. But in deciding whether to make further reforms to international arbitration law, policy makers must do more than simply accept that uniformity has benefits....
Under Arbitration Agreement at Issue, Arbitrator Decides Whether Class Arbitration is Available
February 8, 2017
The California Supreme Court has issued an important decision on the availability of class arbitration: Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233. Timothy Sandquist worked for Lebo Automotive, Inc., as a car salesman. On Sandquist's first day of employment, his manager gave him approximately 100 pages of forms to complete as a condition of his employment. Among those pages were three arbitration agreements. Twelve years later, Sandquist sued Lebo individually and on behalf of others,...
February 8, 2017
The California Supreme Court has issued an important decision on the availability of class arbitration: Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233. Timothy Sandquist worked for Lebo Automotive, Inc., as a car salesman. On Sandquist's first day of employment, his manager gave him approximately 100 pages of forms to complete as a condition of his employment. Among those pages were three arbitration agreements. Twelve years later, Sandquist sued Lebo individually and on behalf of others,...
Empirical Findings on International Arbitration: An Overview
February 8, 2017
This chapter surveys the existing empirical literature on international arbitration. It seeks to be thorough but does not claim to be comprehensive. The chapter focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and international investment arbitration. Part I describes empirical research on the use of arbitration to resolve transnational disputes — in particular, the extent to which parties use arbitration clauses...
February 8, 2017
This chapter surveys the existing empirical literature on international arbitration. It seeks to be thorough but does not claim to be comprehensive. The chapter focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and international investment arbitration. Part I describes empirical research on the use of arbitration to resolve transnational disputes — in particular, the extent to which parties use arbitration clauses...
Article Asks Whether Arbitrators are Human
February 6, 2017
This audience might be interested in reading an article that appeared in the December 2016 volume of the Journal of Empirical Studies entitled “Are Arbitrators Human?” Authored by a Ph.D. candidate in human development (Rebecca K. Helm, Cornell), a federal magistrate judge (Judge Andrew J. Wistrich, CD Cal.), and a law professor (Jeffrey J. Rachlinski, Cornell), the article reports on empirical research indicating that “arbitrators perform about the same as judges in experiments designed...
February 6, 2017
This audience might be interested in reading an article that appeared in the December 2016 volume of the Journal of Empirical Studies entitled “Are Arbitrators Human?” Authored by a Ph.D. candidate in human development (Rebecca K. Helm, Cornell), a federal magistrate judge (Judge Andrew J. Wistrich, CD Cal.), and a law professor (Jeffrey J. Rachlinski, Cornell), the article reports on empirical research indicating that “arbitrators perform about the same as judges in experiments designed...
