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Arbitration
WIPO Arbitration and Mediation Center Received Record Number of Case Requests in 2018
May 2, 2019
The World Intellectual Property Organization (“WIPO”) has announced its Arbitration and Mediation Center received...
May 2, 2019
The World Intellectual Property Organization (“WIPO”) has announced its Arbitration and Mediation Center received...
The Wind Blows Away From Arbitration
May 1, 2019
Papalote, a wind-power producer, had a dispute with the Lower Colorado River Authority; a key issue was whether a $60 million limitation-of-liability clause applied. Their contract had an arbitration provision that applied “if any dispute arises with respect to either Party’s performance.” The Fifth Circuit found that the dispute was not subject to arbitration, as it “is a dispute related to the the interpretation of the Agreement, not a performance-related dispute . . . ..” Papalote...
May 1, 2019
Papalote, a wind-power producer, had a dispute with the Lower Colorado River Authority; a key issue was whether a $60 million limitation-of-liability clause applied. Their contract had an arbitration provision that applied “if any dispute arises with respect to either Party’s performance.” The Fifth Circuit found that the dispute was not subject to arbitration, as it “is a dispute related to the the interpretation of the Agreement, not a performance-related dispute . . . ..” Papalote...
Up Narrow Arbitration Clause Creek without a Papalote?—Narrow Arbitration Clauses and the Difference between Interpretation and Performance
April 30, 2019
I am told “papalote” is a Spanish word meaning “kite” or “hang glider.” It also appears in the name of a party to a recent decision of the U.S. Court of Appeals for the Fifth Circuit concerning narrow arbitration clauses, Papalote Creek II, L.L.C. v. Lower Colo. River Auth., No. 17-50852, slip op. (5th Cir. Mar. 15, 2019) (“Papalote II”). The party was Papalote Creek II, L.L.C. (“Papalote”). It won the appeal. What was the appeal about? Narrow arbitration clauses,...
April 30, 2019
I am told “papalote” is a Spanish word meaning “kite” or “hang glider.” It also appears in the name of a party to a recent decision of the U.S. Court of Appeals for the Fifth Circuit concerning narrow arbitration clauses, Papalote Creek II, L.L.C. v. Lower Colo. River Auth., No. 17-50852, slip op. (5th Cir. Mar. 15, 2019) (“Papalote II”). The party was Papalote Creek II, L.L.C. (“Papalote”). It won the appeal. What was the appeal about? Narrow arbitration clauses,...
Kentucky Legislature Reaffirms the Right of Employers to Require Employees to Arbitrate
April 26, 2019
You might recall SCOTUS’s 2017 smack down of a Kentucky common law rule regulating the formation of an arbitration agreement in Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017). Liz wrote about the case here and here. Basically, in the case, the Kentucky Supreme Court said some unkind things about arbitration, reminiscent of the old-time hostility that the FAA was designed to overcome. More particularly, three wrongful death cases...
April 26, 2019
You might recall SCOTUS’s 2017 smack down of a Kentucky common law rule regulating the formation of an arbitration agreement in Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017). Liz wrote about the case here and here. Basically, in the case, the Kentucky Supreme Court said some unkind things about arbitration, reminiscent of the old-time hostility that the FAA was designed to overcome. More particularly, three wrongful death cases...
Supreme Court Decides Lamps Plus v. Varela: No Surprises Here
April 25, 2019
Today, the Supreme Court somewhat expanded its view that silent arbitration agreements that make no mention of class proceedings, cannot be interpreted as permitting class actions in arbitration. In Lamps Plus Inc. v. Varela, the Court reversed a Ninth Circuit decision holding that an ambiguous agreement can be interpreted to permit a class arbitration. Accepting that the agreement was ambiguous, the Court rejected the California state rule that ambiguity allows a court to construe the language...
April 25, 2019
Today, the Supreme Court somewhat expanded its view that silent arbitration agreements that make no mention of class proceedings, cannot be interpreted as permitting class actions in arbitration. In Lamps Plus Inc. v. Varela, the Court reversed a Ninth Circuit decision holding that an ambiguous agreement can be interpreted to permit a class arbitration. Accepting that the agreement was ambiguous, the Court rejected the California state rule that ambiguity allows a court to construe the language...
Breaking News: SCOTUS Surprises Absolutely No One in Lamps Plus, Inc. v. Varela
April 25, 2019
It’s not at all evident to me why SCOTUS felt the need to grant review of in Lamps Plus, Inc. v. Varela. But it did. And the majority decision, authored by Chief Justice Roberts, did precisely what I think that everyone who looked at the case expected: it held that courts cannot find the necessary consent to class arbitration in an ambiguous arbitration clause. (See Liz’s prediction, for instance (“In my view, the issue of class arbitration has largely been hammered out.”) Still,...
April 25, 2019
It’s not at all evident to me why SCOTUS felt the need to grant review of in Lamps Plus, Inc. v. Varela. But it did. And the majority decision, authored by Chief Justice Roberts, did precisely what I think that everyone who looked at the case expected: it held that courts cannot find the necessary consent to class arbitration in an ambiguous arbitration clause. (See Liz’s prediction, for instance (“In my view, the issue of class arbitration has largely been hammered out.”) Still,...
Making Mediation More Attractive For Investor-State Disputes
April 24, 2019
For many years, arbitration has been the de facto vehicle of choice for the resolution of investor-state disputes. However, despite the wholesale and widespread adoption of mediation in every sort of dispute, mediation is used rarely in investor-state disputes (Systra v. Philippines is one example). As of this writing, only 11 (1.3% of total ICSID cases) known conciliations—a procedure similar to mediation—have been recorded by ICSID. Even rarer are instances of tribunals...
April 24, 2019
For many years, arbitration has been the de facto vehicle of choice for the resolution of investor-state disputes. However, despite the wholesale and widespread adoption of mediation in every sort of dispute, mediation is used rarely in investor-state disputes (Systra v. Philippines is one example). As of this writing, only 11 (1.3% of total ICSID cases) known conciliations—a procedure similar to mediation—have been recorded by ICSID. Even rarer are instances of tribunals...
SCOTX Asked to Weigh in on Oil & Gas Arbitration Dispute
April 23, 2019
An oil company and several related entities have asked the Supreme Court of Texas to consider whether non-signatory assignees may be compelled to arbitrate their claims following an indemnity dispute. In Wagner Oil Co. v. Apache Corp., No. 19-0243, Texas-based Wagner Oil Company (“WOC”) purchased certain Louisiana oil and gas assets from Apache Corporation by executing a purchase and sale agreement (“PSA”). The PSA was signed by Bryan Wagner on...
April 23, 2019
An oil company and several related entities have asked the Supreme Court of Texas to consider whether non-signatory assignees may be compelled to arbitrate their claims following an indemnity dispute. In Wagner Oil Co. v. Apache Corp., No. 19-0243, Texas-based Wagner Oil Company (“WOC”) purchased certain Louisiana oil and gas assets from Apache Corporation by executing a purchase and sale agreement (“PSA”). The PSA was signed by Bryan Wagner on...
Past As Prologue: Arbitration as an Early Common Law Court
April 22, 2019
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, has published “Past As Prologue: Arbitration as an Early Common Law Court,” 57 Houston Law Review__ (2020, Forthcoming); University of Missouri School of Law Legal Studies Research Paper No. 2019-05. In her journal article, Professor Strong compares modern-day consumer and employment arbitration with early civil court practices. Here is the abstract: Two...
April 22, 2019
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, has published “Past As Prologue: Arbitration as an Early Common Law Court,” 57 Houston Law Review__ (2020, Forthcoming); University of Missouri School of Law Legal Studies Research Paper No. 2019-05. In her journal article, Professor Strong compares modern-day consumer and employment arbitration with early civil court practices. Here is the abstract: Two...
ABA Passes New Guidelines on the Appointment and Use of Special Masters
April 18, 2019
At the January 2019 Midyear Meeting, the American Bar Association adopted the ABA Guidelines for the Appointment and Use of Special Masters in Federal and State Civil Litigation. The new guidelines pinpoint two primary benefits of special masters. First, special masters can assist judges and magistrates with effective case management because special masters are able to focus their time on complex cases to a degree that judges with busy dockets cannot afford....
April 18, 2019
At the January 2019 Midyear Meeting, the American Bar Association adopted the ABA Guidelines for the Appointment and Use of Special Masters in Federal and State Civil Litigation. The new guidelines pinpoint two primary benefits of special masters. First, special masters can assist judges and magistrates with effective case management because special masters are able to focus their time on complex cases to a degree that judges with busy dockets cannot afford....
