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Arbitration
Inside the Arbitrator’s Mind
February 6, 2017
Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional...
February 6, 2017
Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional...
Fifth Circuit Affirms Order Denying Motion to Compel Arbitration in Employee Pension Plan Dispute
February 2, 2017
The United States Court of Appeals for the Fifth Circuit has issued an unpublished opinion stating an accounting firm may not compel a group of hospital workers’ claims over an allegedly underfunded pension plan to arbitration. In Jones v. Singing River Health Servs. Found., et al., No. 16-60263 (5th Cir., January 5, 2017), an accounting firm, KPMG, performed a multiyear financial audit for an employee pension plan sponsored by a hospital, Singing River Health Services (“SRHS”). Prior to performing...
February 2, 2017
The United States Court of Appeals for the Fifth Circuit has issued an unpublished opinion stating an accounting firm may not compel a group of hospital workers’ claims over an allegedly underfunded pension plan to arbitration. In Jones v. Singing River Health Servs. Found., et al., No. 16-60263 (5th Cir., January 5, 2017), an accounting firm, KPMG, performed a multiyear financial audit for an employee pension plan sponsored by a hospital, Singing River Health Services (“SRHS”). Prior to performing...
Medical Malpractice Arbitration: Not Business As Usual
January 31, 2017
There is an interesting exception to businesses’, employers’, and service providers’ seemingly universal embrace of arbitration processes, particularly mandatory pre-dispute arbitration. Although it may be difficult to believe given arbitration’s current popularity, not everyone requires his or her clients to sign mandatory pre-dispute arbitration agreements. In fact, some service providers prefer to avoid arbitration regardless of whether it is arranged pre- or post-dispute. So which merchants...
January 31, 2017
There is an interesting exception to businesses’, employers’, and service providers’ seemingly universal embrace of arbitration processes, particularly mandatory pre-dispute arbitration. Although it may be difficult to believe given arbitration’s current popularity, not everyone requires his or her clients to sign mandatory pre-dispute arbitration agreements. In fact, some service providers prefer to avoid arbitration regardless of whether it is arranged pre- or post-dispute. So which merchants...
Texas Supreme Court Takes Up Arbitration Vacatur Case
January 27, 2017
Forest Oil Corp. v. El Rucio Land and Cattle Co., Inc., 446 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2014, pet. granted). A three member arbitration panel awarded $24.5 million in damages to James Argyle McAllen ("McAllen"), El Rucio Land and Cattle Company, Inc. ("El Rucio"), San Jacinto Land Partnership, Ltd., and McAllen Trust Partnership in a dispute with Forest Oil Corporation ("Forest Oil") (collectively, "the McAllens"). El Rucio moved to confirm the award, and Forest Oil moved to vacate....
January 27, 2017
Forest Oil Corp. v. El Rucio Land and Cattle Co., Inc., 446 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2014, pet. granted). A three member arbitration panel awarded $24.5 million in damages to James Argyle McAllen ("McAllen"), El Rucio Land and Cattle Company, Inc. ("El Rucio"), San Jacinto Land Partnership, Ltd., and McAllen Trust Partnership in a dispute with Forest Oil Corporation ("Forest Oil") (collectively, "the McAllens"). El Rucio moved to confirm the award, and Forest Oil moved to vacate....
Arbitration Agreements – Incorporation by Reference of an Arbitration Clause in Another Document Is a Simple Matter . . . Isn’t It?
January 26, 2017
In “Arbitration Agreements – Incorporation by Reference of an Arbitration Clause in in Another Document is a Simple Matter . . . Isn’t It?”, we describe how the simple incorporation by reference of a provision in another document becomes a bit less simple when a Federal District Court says that something more is required – i.e., express notice that the other document contains an arbitration agreement among other provisions. Read the full article here.
January 26, 2017
In “Arbitration Agreements – Incorporation by Reference of an Arbitration Clause in in Another Document is a Simple Matter . . . Isn’t It?”, we describe how the simple incorporation by reference of a provision in another document becomes a bit less simple when a Federal District Court says that something more is required – i.e., express notice that the other document contains an arbitration agreement among other provisions. Read the full article here.
ICC Issues Expedited Procedure Rules
January 25, 2017
In an effort to streamline arbitration proceedings where possible, the International Court of Arbitration of the International Chamber of Commerce (“ICC”) announced on November 4, 2016 that it would issue new Expedited Procedure Rules, effective March 1, 2017, which will comprise the new Appendix VI of its Rules of Arbitration (“ICC Arb. R.”). The ICC also announced that it will amend ICC Arb. R. Article 30, which is its current rule governing expedited procedures, as well as Appendix III,...
January 25, 2017
In an effort to streamline arbitration proceedings where possible, the International Court of Arbitration of the International Chamber of Commerce (“ICC”) announced on November 4, 2016 that it would issue new Expedited Procedure Rules, effective March 1, 2017, which will comprise the new Appendix VI of its Rules of Arbitration (“ICC Arb. R.”). The ICC also announced that it will amend ICC Arb. R. Article 30, which is its current rule governing expedited procedures, as well as Appendix III,...
Drahozal on the Issue Preclusive Effect of Arbitration
January 23, 2017
Christopher R. Drahozal (University of Kansas School of Law) has posted The Issue Preclusive Effect of Arbitration Awards...
January 23, 2017
Christopher R. Drahozal (University of Kansas School of Law) has posted The Issue Preclusive Effect of Arbitration Awards...
2016 in Arbitration Law: Fleeting Victories for Consumer Advocates?
January 20, 2017
If I had drafted this annual summary post on November 7, 2016, it would have looked different. At that point, the year had produced numerous (final or proposed) federal regulations that significantly restricted the use of arbitration with consumers in large industries. In addition, Justice Scalia’s death, along with the prospective election of Secretary Clinton, appeared poised to alter the make-up of the U.S. Supreme Court, which has voted 5-4 in many of the critical arbitration decisions in the last...
January 20, 2017
If I had drafted this annual summary post on November 7, 2016, it would have looked different. At that point, the year had produced numerous (final or proposed) federal regulations that significantly restricted the use of arbitration with consumers in large industries. In addition, Justice Scalia’s death, along with the prospective election of Secretary Clinton, appeared poised to alter the make-up of the U.S. Supreme Court, which has voted 5-4 in many of the critical arbitration decisions in the last...
Class Actions and Executive Power
January 20, 2017
Zachary D. Clopton, Assistant Professor of Law at Cornell Law School, has published “Class Actions and Executive Power,” New York University Law Review, Forthcoming; Cornell Legal Studies Research Paper No. 16-44. In his journal article, Professor Clopton discusses potential issues related to federal administrative attempts to regulate arbitration in response to recent Supreme Court jurisprudence on class arbitration waivers. Here is the abstract: Decisions about class certification and arbitration...
January 20, 2017
Zachary D. Clopton, Assistant Professor of Law at Cornell Law School, has published “Class Actions and Executive Power,” New York University Law Review, Forthcoming; Cornell Legal Studies Research Paper No. 16-44. In his journal article, Professor Clopton discusses potential issues related to federal administrative attempts to regulate arbitration in response to recent Supreme Court jurisprudence on class arbitration waivers. Here is the abstract: Decisions about class certification and arbitration...
The Continuing Struggle Over Class Action Waivers in Arbitration
January 19, 2017
In the case of D.R. Horton, Inc., 357 N.L.R.B. 184 (2012), the NLRB held that the adoption of a mandatory arbitration plan...
January 19, 2017
In the case of D.R. Horton, Inc., 357 N.L.R.B. 184 (2012), the NLRB held that the adoption of a mandatory arbitration plan...
