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Massachusetts Invalidates Arbitration Agreement Because Plaintiffs Could Not Effectively Pursue Small Value Claims
July 18, 2013
As we were waiting for SCOTUS’s decision in AmEx, we got a decision on vindicating statutory rights from a different high court: the Supreme Judicial Court of Massachusetts. In an opinion that could be a blueprint for other plaintiff-friendly states, the supremes in Massachusetts held that courts may invalidate arbitration agreements that preclude class actions if a plaintiff proves he or she “effectively cannot pursue a claim against the defendant in individual arbitration.” Feeney...
July 18, 2013
As we were waiting for SCOTUS’s decision in AmEx, we got a decision on vindicating statutory rights from a different high court: the Supreme Judicial Court of Massachusetts. In an opinion that could be a blueprint for other plaintiff-friendly states, the supremes in Massachusetts held that courts may invalidate arbitration agreements that preclude class actions if a plaintiff proves he or she “effectively cannot pursue a claim against the defendant in individual arbitration.” Feeney...
Empowering the Growth of International ADR
July 18, 2013
This is the final posting of a 3-part series. Previous posts in the series noted the gathering tempest being whipped up by opacity in ADR practice. How can structural change help the ship steer towards modernity? User demand for more information and higher professional standards in ADR is unequivocal. An international institution is needed to address the global user demand, particularly in arbitration, conciliation and similar methods of resolving international commercial disputes. That institution...
July 18, 2013
This is the final posting of a 3-part series. Previous posts in the series noted the gathering tempest being whipped up by opacity in ADR practice. How can structural change help the ship steer towards modernity? User demand for more information and higher professional standards in ADR is unequivocal. An international institution is needed to address the global user demand, particularly in arbitration, conciliation and similar methods of resolving international commercial disputes. That institution...
Empowering the Growth of International ADR: Cries for Change
July 18, 2013
Part 1 of this post touched on rumblings for more transparency in arbitration. But there is more than the distant sound of thunder, and it’s coming closer. As arbitration and mediation are both highly competitive and fragmented fields, it is hard for providers to act collectively. Yet they must. The only forums where arbitration organizations come together at an international level conferences of the ABA Section of Dispute Resolution, the Institute for Transnational Arbitration (ITA) and the International...
July 18, 2013
Part 1 of this post touched on rumblings for more transparency in arbitration. But there is more than the distant sound of thunder, and it’s coming closer. As arbitration and mediation are both highly competitive and fragmented fields, it is hard for providers to act collectively. Yet they must. The only forums where arbitration organizations come together at an international level conferences of the ABA Section of Dispute Resolution, the Institute for Transnational Arbitration (ITA) and the International...
Empowering the Growth of International ADR
July 18, 2013
In recent years, corporate users of ADR services have demanded greater transparency into the skills, experience and suitability of ADR providers and the adoption of stronger professional ethical standards and disciplinary processes. These calls are turning into dissatisfaction. The markets serving corporate client needs can, without great effort or cost, address the user demand quickly, effectively and economically worldwide. In May 2007, Michael McIlwrath of GE Oil & Gas published an article...
July 18, 2013
In recent years, corporate users of ADR services have demanded greater transparency into the skills, experience and suitability of ADR providers and the adoption of stronger professional ethical standards and disciplinary processes. These calls are turning into dissatisfaction. The markets serving corporate client needs can, without great effort or cost, address the user demand quickly, effectively and economically worldwide. In May 2007, Michael McIlwrath of GE Oil & Gas published an article...
Comcast Corp. v. Behrend: Plot Twists and a Surprise Ending
July 17, 2013
On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), an antitrust monopoly case in which the Court determined “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awardingdamages on a class-wide basis.” Comcast Corp. v. Behrend, 133 S. Ct. 24 (2012). Although the Court’s decision was highly anticipated,...
July 17, 2013
On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), an antitrust monopoly case in which the Court determined “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awardingdamages on a class-wide basis.” Comcast Corp. v. Behrend, 133 S. Ct. 24 (2012). Although the Court’s decision was highly anticipated,...
FINRA to Conduct Background Checks on Arbitrators
July 17, 2013
BNA has reported that FINRA has implemented a new policy and will now conduct annual background checks as well as an additional review of arbitrators before appointing them to new cases. This change in policy was prompted by FINRA’s discovery last year that one of its arbitrators had been indicted for the uanuthorized practice of law. It’s too bad that the forum needs to implement measures such as these to make sure the parties have neutral and ethical arbitrators; the arbitrator’s disclosure...
July 17, 2013
BNA has reported that FINRA has implemented a new policy and will now conduct annual background checks as well as an additional review of arbitrators before appointing them to new cases. This change in policy was prompted by FINRA’s discovery last year that one of its arbitrators had been indicted for the uanuthorized practice of law. It’s too bad that the forum needs to implement measures such as these to make sure the parties have neutral and ethical arbitrators; the arbitrator’s disclosure...
Challenging Awards for Lack of Disclosure
July 17, 2013
The May 2013 issue of the IBA Dispute Resolution Section’s journal, Dispute Resolution International, has a concise and compelling article by Mark H. Alcott addressing “Post-Award Attacks on Arbitrators.” The title speaks for itself: the author is harshly critical of challenges to arbitral impartiality that are first asserted after an award has issued. Challenges to “would-be arbitrators because of interests or relationships that are marginal, at best,” cause delay, unnecessary...
July 17, 2013
The May 2013 issue of the IBA Dispute Resolution Section’s journal, Dispute Resolution International, has a concise and compelling article by Mark H. Alcott addressing “Post-Award Attacks on Arbitrators.” The title speaks for itself: the author is harshly critical of challenges to arbitral impartiality that are first asserted after an award has issued. Challenges to “would-be arbitrators because of interests or relationships that are marginal, at best,” cause delay, unnecessary...
Walk a Block in My Socks, Walk a Mile in Their Shoes…
July 17, 2013
Not so long ago I was a claiming party as part of a group of plaintiffs in the stead of my elderly parents in a multiparty,...
July 17, 2013
Not so long ago I was a claiming party as part of a group of plaintiffs in the stead of my elderly parents in a multiparty,...
Equal Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations
July 17, 2013
Frederic G. Sourgens, Associate Professor of Law at Washburn University School of Law has publishedEqual Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations, North Carolina Journal of International Law and Commercial Regulation, Vol. 38, No. 4, 2013. In his article, Professor Sourgens discusses the procedure for establishing jurisdictional proof in investor-state arbitral proceedings. Here is the abstract: This article develops the process of jurisdictional proof in investor-state...
July 17, 2013
Frederic G. Sourgens, Associate Professor of Law at Washburn University School of Law has publishedEqual Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations, North Carolina Journal of International Law and Commercial Regulation, Vol. 38, No. 4, 2013. In his article, Professor Sourgens discusses the procedure for establishing jurisdictional proof in investor-state arbitral proceedings. Here is the abstract: This article develops the process of jurisdictional proof in investor-state...
Supreme Court Limits ATS Litigation—But Door Remains Slightly Ajar
July 16, 2013
In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the U.S. Supreme Court addressed the applicability of the Alien Tort Statute (ATS) to alleged violations of international law committed by multinational corporations overseas. Although the Supreme Court rejected the claims in Kiobel because of the presumption against the extraterritorial application of statutes such as the ATS, the Supreme Court did not completely slam the door shut on ATS litigation. What types of ATS cases survive Kiobel will...
July 16, 2013
In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the U.S. Supreme Court addressed the applicability of the Alien Tort Statute (ATS) to alleged violations of international law committed by multinational corporations overseas. Although the Supreme Court rejected the claims in Kiobel because of the presumption against the extraterritorial application of statutes such as the ATS, the Supreme Court did not completely slam the door shut on ATS litigation. What types of ATS cases survive Kiobel will...
