Menu
Arbitration
Special Masters: How to Make the Best of Both Worlds, Part II
December 17, 2014
OK, so in Part One we all agreed that we need to give people a better choice than the one between a system of civil litigation that does a great job of permitting appeals, but is perceived to be, or is, too cumbersome or expensive to resolve disputes; and a system of arbitration that, one hopes, is cheaper, but does not permit, at least the judicial appeal that parties might wish to have available if the arbitrator gets it “wrong.” So what is the better choice? We’ll start by explaining...
December 17, 2014
OK, so in Part One we all agreed that we need to give people a better choice than the one between a system of civil litigation that does a great job of permitting appeals, but is perceived to be, or is, too cumbersome or expensive to resolve disputes; and a system of arbitration that, one hopes, is cheaper, but does not permit, at least the judicial appeal that parties might wish to have available if the arbitrator gets it “wrong.” So what is the better choice? We’ll start by explaining...
Part Two: Arbitration in Evolution
December 16, 2014
In Part One of this series, Disputing highlighted the survey group profile described in “Arbitration in Evolution: Current Practices and Perspectives of Experienced Arbitrators,” authored by Pepperdine University School of Law Professor Thomas Stipanowich and Straus Institute for Dispute Resolution Research Fellow Zachary Ulrich. The article examines data obtained in a unique 2013 survey of 134 members of the College of Commercial Arbitrators (“CCA”). The information collected from survey...
December 16, 2014
In Part One of this series, Disputing highlighted the survey group profile described in “Arbitration in Evolution: Current Practices and Perspectives of Experienced Arbitrators,” authored by Pepperdine University School of Law Professor Thomas Stipanowich and Straus Institute for Dispute Resolution Research Fellow Zachary Ulrich. The article examines data obtained in a unique 2013 survey of 134 members of the College of Commercial Arbitrators (“CCA”). The information collected from survey...
Part One: Arbitration in Evolution
December 15, 2014
Professor Thomas Stipanowich, Pepperdine University School of Law, and Straus Institute for Dispute Resolution Research Fellow Zachary Ulrich, have published “Arbitration in Evolution: Current Practices and Perspectives of Experienced Arbitrators,” Columbia American Review of International Arbitration, Forthcoming ; Pepperdine University Legal Studies Research Paper No. 2014/30. The paper fully analyzes the data obtained in a groundbreaking 2013 survey regarding commercial arbitration practice...
December 15, 2014
Professor Thomas Stipanowich, Pepperdine University School of Law, and Straus Institute for Dispute Resolution Research Fellow Zachary Ulrich, have published “Arbitration in Evolution: Current Practices and Perspectives of Experienced Arbitrators,” Columbia American Review of International Arbitration, Forthcoming ; Pepperdine University Legal Studies Research Paper No. 2014/30. The paper fully analyzes the data obtained in a groundbreaking 2013 survey regarding commercial arbitration practice...
First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months
December 15, 2014
We haven’t had a good waiver case in a while. The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either). It found that a plaintiff had waived its right to arbitrate, not by bringing its claims to court in the first place, but by waiting nine months to compel arbitration, thereby seeming to “use [] an arbitration clause as a parachute when judicial winds blow unfavorably.” In Joca-Roca Real Estate, LLC v. Brennan,...
December 15, 2014
We haven’t had a good waiver case in a while. The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either). It found that a plaintiff had waived its right to arbitrate, not by bringing its claims to court in the first place, but by waiting nine months to compel arbitration, thereby seeming to “use [] an arbitration clause as a parachute when judicial winds blow unfavorably.” In Joca-Roca Real Estate, LLC v. Brennan,...
Arbiter Does Not Decide Class Arbitration Status
December 11, 2014
The U.S. Court of Appeals for the Third Circuit has joined the Sixth Circuit in concluding that classwide arbitration should...
December 11, 2014
The U.S. Court of Appeals for the Third Circuit has joined the Sixth Circuit in concluding that classwide arbitration should...
The Second Circuit Blinks on Competence-Competence
December 10, 2014
As the compétence-compétence stare-down continues between the U.S. courts and the drafters of the American Law Institute’s Restatement of the Law of International Commercial Arbitration, rather few seem to have taken notice that the U.S. Second Circuit Court of Appeals may have blinked. The reflexive twitch happened on Halloween (boo!), when the Second Circuit in NASDAQ OMX Group, Inc. v. UBS Securities, LLC, 770 F.3d 1010 (2d Cir. Oct. 31, 2014) affirmed a preliminary injunction — based...
December 10, 2014
As the compétence-compétence stare-down continues between the U.S. courts and the drafters of the American Law Institute’s Restatement of the Law of International Commercial Arbitration, rather few seem to have taken notice that the U.S. Second Circuit Court of Appeals may have blinked. The reflexive twitch happened on Halloween (boo!), when the Second Circuit in NASDAQ OMX Group, Inc. v. UBS Securities, LLC, 770 F.3d 1010 (2d Cir. Oct. 31, 2014) affirmed a preliminary injunction — based...
New Survey Dispels Common Myths About Arbitration
December 10, 2014
Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award? That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law. The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine University School of Law conducted recently. He obtained responses from 134 highly experienced arbitrators –most of them had arbitrated more than 100 disputes in their career — to a range...
December 10, 2014
Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award? That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law. The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine University School of Law conducted recently. He obtained responses from 134 highly experienced arbitrators –most of them had arbitrated more than 100 disputes in their career — to a range...
Consumer Arbitration Agreements: Not Understanding What You Didn’t Agree To
December 9, 2014
A recently posted paper, reporting on the results of an empirical study, reveals unsettling facts about consumer understanding...
December 9, 2014
A recently posted paper, reporting on the results of an empirical study, reveals unsettling facts about consumer understanding...
Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid
December 9, 2014
A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble’s website was not enforceable. This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not enforceable because the user did not know he had any agreement with Sirius XM, let alone an arbitration agreement. Knutson v. Sirius XM Radio Inc., __ F.3d__, 2014 WL 5802284 (9th Cir. Nov. 10, 2014). The plaintiff in this case purchased a Toyota truck. The truck came...
December 9, 2014
A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble’s website was not enforceable. This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not enforceable because the user did not know he had any agreement with Sirius XM, let alone an arbitration agreement. Knutson v. Sirius XM Radio Inc., __ F.3d__, 2014 WL 5802284 (9th Cir. Nov. 10, 2014). The plaintiff in this case purchased a Toyota truck. The truck came...
Agreements to Arbitrate, Redux
December 8, 2014
Following up on a prior post, two recent cases have tested the enforceability of “agreements” that one party unilaterally propounded and the other party had no idea existed. Though the Ninth Circuit found both to be non-binding, the logic in both cases implies that knowing consent — an element of contract law that is emphasized in law school as fundamental — seems no longer to be a requirement in “agreeing” to arbitrate future disputes. In Nguyen v. Barnes & Noble, (CTA 9 August...
December 8, 2014
Following up on a prior post, two recent cases have tested the enforceability of “agreements” that one party unilaterally propounded and the other party had no idea existed. Though the Ninth Circuit found both to be non-binding, the logic in both cases implies that knowing consent — an element of contract law that is emphasized in law school as fundamental — seems no longer to be a requirement in “agreeing” to arbitrate future disputes. In Nguyen v. Barnes & Noble, (CTA 9 August...
