2020
Utilizing Virtual Arbitration during the Pandemic
By P. Jean Baker – May 26, 2020
A promising alternative provided you know what you are doing.
“Partial Final Award”—Oxymoron or Confirmable?
By Sheila J. Carpenter – May 26, 2020
A series of cases from 2019 illustrates the different approaches federal courts have taken.
One Class-Wide Arbitration Versus Thousands of Individual Arbitrations
By P. Jean Baker – May 26, 2020
Two companies were confronted with invoices totaling millions of dollars in fees and costs when workers simultaneously filed thousands of individual arbitration demands.
Special Forces for the Tough Case
By J. Patrick O’Malley, Eric O. English, and Frank M. Bedell – May 26, 2020
Settlement counsel may not be right for every case, but they might very well be the difference in your next case “that can’t be settled.”
Lack of Diversity Continues to Hurt Alternative Dispute Resolution
By Armeen F. Mistry – May 26, 2020
Increasing diversity among ADR practitioners will serve to enhance the business of ADR and further legitimize ADR as a conflict-resolution solution.
How to Evaluate Rather than Whether to Evaluate
By Joan Stearns Johnsen – May 20, 2020
Just as not all audiences equally receive all evaluations, not all evaluations are equal.
A Shared Goal: Efficient, Cost-Effective Commercial Arbitration
By Joan Stearns Johnsen – February 17, 2020
Arbitrators possess a great deal of power that they can and should exercise to keep costs down and move the process forward expeditiously and fairly.
Obstacles—and Workarounds—to Obtaining Third-Party Documents in Arbitration
By Charles F. Forer – February 13, 2020
Where courts refuse to allow document production from third parties, there are workarounds.
Disclosure of Arbitrators’ Interest in Arbitral Institutions
By Sunu M. Pillai – February 13, 2020
Arbitrators will need to disclose any ownership stakes in the arbitral institutions, and the institutions may need to disclose the amount of business they have previously done with the parties.
No Functus Officio When Court Retains Jurisdiction in Final Arbitral Award
By Kenneth E. Sharperson – February 13, 2020
The Southern District of New York recently tackled the issue of whether a final award is functus officio if an arbitration panel retains jurisdiction.
Arbitral Subpoenas to Third Parties for Prehearing Discovery: Where the Circuits Stand
By Sheila J. Carpenter – February 13, 2020
A recent decision by the Eleventh Circuit sheds additional light on the reach and enforceability of prehearing discovery subpoenas issued by arbitrators to third parties.
A Sleeper from the Third Circuit?
By Robert E. Bartkus – February 5, 2020
Three arbitration rulings in a September precedential opinion have received virtually no notice despite the potential consequences.
2019
SEC Policy Against Mandatory Arbitration Faces Challenge
By Mark Kantor – December 11, 2019
There have been several attempts over the years by business interests to change the policy, but those efforts have been unsuccessful in the face of strong political pushback.
California Supreme Court Rules on Timing for Requesting Arbitration
By Carolyn G. Burnette and Casey M. Curran – October 31, 2019
The court held that requests for costs under California Code of Civil Procedure section 998 are timely if raised within 15 days of an arbitrator’s final award.
Connecticut’s Evolving Jurisdiction Issues in Construction Arbitration
By Raymond A. Garcia – October 31, 2019
A review of the progressive erosion of the finality of arbitration decisions under the Connecticut Arbitration Statute applicable to disputes between contractors and the state of Connecticut because of perceived deficient notice of claim.
U.S. Supreme Court Dims the Lights on Plaintiffs’ Rights to Class Action Arbitration in Lamps Plus
By Melinda G. Gordon – October 31, 2019
The Court determined that class-wide treatment may not be inferred from ambiguous contract language and that, instead, agreements must expressly provide for class arbitration.
Online Arbitration: Avoiding the “Outer Limits” of Enforceability
By Erin Gleason Alvarez – October 31, 2019
A Ninth Circuit decision provides insights on contract principles governing online arbitration agreements.
The Singapore Mediation Convention: What Will Be Its Impact?
By Iris Ng – October 8, 2019
Mediation will not eclipse arbitration anytime soon, but the Singapore Convention is a positive development for dispute resolution as a whole.
New Jersey Supreme Court Rights Course of Arbitrability
By Robert E. Bartkus – August 7, 2019
The court ruled that arguments of bait-and-switch fraud or of agreements that were not “knowingly and voluntarily” signed and agreed to must be decided by the arbitrator.
Supreme Court Resolves Circuit Split Regarding FAA’s Section 1 Exemption
By P. Jean Baker – May 23, 2019
A court must decide if an employment contract is subject to the exemption of transportation workers, and “independent contractors” fall within the scope of the exclusion.
Third-Party Arbitration Summonses: Some Helpful Practice Pointers
By Stephen P. Gilbert – May 23, 2019
A court rebuffed a variety of attacks on summonses issued by an arbitration panel and on the court’s jurisdiction.
Ambiguity in Final Award Is Exception to Functus Officio Doctrine
By Sunu M. Pillai – May 23, 2019
The Second Circuit joined the Third, Fifth, Sixth, Seventh, and Ninth Circuits in adopting an exception to the doctrine where the arbitral panel is clarifying an ambiguous award.
Unintended Consequences of Badly Drafted Arbitration Agreements
By P. Jean Baker – May 23, 2019
Recent court decisions highlight the need for counsel to carefully draft or review arbitration agreements to ensure a client obtains the dispute resolution process the client really wanted.
Proposed Amendments to the Arbitration Regime in India
By Naresh Thacker and Ria Dalwani – May 15, 2019
The Arbitration and Conciliation (Amendment) Bill, 2018 seeks to align itself with widely recognized arbitration practices and carve out a foothold for institutional arbitration.
New Jersey Refuses to Enforce Arbitration Agreement
By P. Jean Baker – March 12, 2019
There was no “meeting of the minds” because the parties did not understand the rights under the arbitration agreement that ostensibly foreclosed the plaintiff’s right to a jury trial.
New Jersey Court Puts Brakes on Arbitration after Car Deals Are Called Off
By Shira Forman – March 12, 2019
Appellate court finds that, because the parties rescinded their purchase agreement, their agreement to arbitrate all disputes is rescinded too.
Circuit Split Widens over Waiver of FINRA Arbitration Rights
By Beth Graham – March 12, 2019
Four circuit courts of appeals are split over whether a forum selection clause related to “all actions and proceedings” encompasses FINRA arbitration.
Understanding Prima Paint’s Severability Rule
By Charles E. Harris II – March 12, 2019
This article provides a detailed explanation of a basic, but often misunderstood, rule under substantive federal arbitration law, Prima Paint’s “severability rule.”
U.S. Supreme Court Justices Unanimous on Threshold Arbitrability Issue
By Melinda G. Gordon – March 12, 2019
A unanimous Court finds the “wholly groundless” exception to arbitration agreement inconsistent with Federal Arbitration Act and Supreme Court precedent.
Right to Compel Non-Parties Differs for Domestic and International Disputes
By James Reiman – February 20, 2019
These differences especially impact the ability to compel the arbitration of a third-party through joinder.
An Arbitration Agreement Must Identify the Forum and Rules
By Robert E. Bartkus – January 29, 2019
A New Jersey court has upended the parties' intention to arbitrate their disputes unless their agreement provides for a process for making those determinations.
Termination Provisions May Defeat Arbitration
By Robert E. Bartkus – January 3, 2019
New Jersey trial court refuses to compel arbitration on the grounds the contract had, by its terms, “expired” before the dispute arose.
Vacating an Arbitration Award for Lack of Disclosure by the Arbitrator
By Sunu M. Pillai – January 3, 2019
Three recent cases from the Second, Eighth, and D.C. Circuits show that, to vacate an award for evident partiality, a relationship between the arbitrator and one of the parties must be more than trivial.
Litigate Today, Arbitrate Tomorrow? Not So Fast, Big Business!
By Alexander Bachuwa – January 3, 2019
The Eleventh Circuit has held that companies that have gone down the path of litigation cannot pivot to arbitration because they unilaterally change their terms of service.
California Court Holds Parties May Not Contract Around Hague Convention
By Jiyun Cameron Lee – January 3, 2019
Parties to international contracts should proceed cautiously before relying on contractual service of process provisions that were designed to avoid the convention.
2018
How Broadly Should You Draft an Arbitration Clause?
By Carl Ingwalson – December 13, 2018
To be sure certain kinds of claims are or are not arbitrated, make the contract you draft very clear and direct in expressing that intent.
Vienna International Arbitral Centre Revises Its Rules
By Valentina Wong and Alexander Zollner – November 28, 2018
A clear and slim set of arbitration rules and a reasonable cost regime that meets the needs of arbitration users.
Canada Readies Itself for a Larger Role as a Seat for International Arbitration
By Melinda Jayson – October 10, 2018
Key provinces have revised statues to attract businesses seeking a site for international dispute resolution.
Epic Systems Corp. v. Lewis: The Reach of the FAA Remains Unchanged
By Sheila J. Carpenter – September 11, 2018
Arbitration agreements must be enforced if the objection to arbitration is due to the nature of the arbitration rather than the traditional grounds for revocation of any contract.
Swimming Against the Tide? “Evident Partiality” of a Party-Appointed Arbitrator in the Second Circuit
By Conna A. Weiner – September 11, 2018
The court recently defined a new, more forgiving standard for assessing nondisclosures by party-appointed arbitrators.
Arbitrator Authority to Compel Production of Documents from Third Parties
By Sunu M. Pillai – September 11, 2018
A circuit split exists on the question of arbitrators’ authority to compel prehearing document production from third parties.
Fourth Circuit: Active and Protracted Litigation of Claims Waives Compulsory Arbitration
By Quinton M. Herbert – September 11, 2018
In Degidio v. Crazy Horse Saloon & Restaurant, the court recognized that the FAA is not without limitation.
The Difference Between Litigation Advocacy and Mediation Advocacy
By Edmund J. Sikorski Jr. – September 11, 2018
Mediation advocacy is simply the developed art of persuasion.
Trump as a Maximalist
By John Bickerman – August 28, 2018
A short analysis on the President’s negotiation style.
Does Summary Judgment in an Arbitration Proceeding Avoid Delays and Expenses—Or Add to Them?
By Charles F. Forer – June 13, 2018
Does an arbitrator have the author to grant a summary judgment motion?
The Casual Arbitration Agreement?
By Sheila J. Carpenter – June 6, 2018
A quick email can create an agreement to arbitrate. On the other hand, an oral agreement relating to arbitration can be problematic.
Defining Finality: What Constitutes a Final Arbitration Award
By Christian J. Bromley – June 6, 2018
The Fourth Circuit recently articulated a definition of what constitutes a "final" arbitration award under the limited grounds for vacating awards in section 10 of the Federal Arbitration Act.
On Remand, Second Circuit District Court Vacates Arbitrator's Certification of an Opt-Out Class
By P. Jean Baker – June 6, 2018
The decision is the first to apply Justice Alito's concurrence in Oxford Health Plans in striking down certification of an opt-out class based on the due process rights of the absent class members.
Arbitration Agreement Allowing for De Novo Review of an Award Deemed Unenforceable
By Melinda G. Gordon – June 6, 2018
The Tenth Circuit determines that an arbitration agreement allowing de novo review of awards is unenforceable pursuant to the Supreme Court decision in Hall Street Associates.
The Convergence of Agency Action and Administrative Review in Regulating Arbitration
By Gary C. Norman – June 6, 2018
A clash between a federal agency and Congress spotlights the complicated nature of federal rulemaking and the extent to which it impacts dispute resolution on the spectrum of the public policy process.
New Jersey Holds That Rescission Defeats Arbitration
By Robert E. Bartkus – May 24, 2018
The decision is both interesting and troublesome, especially because it is precedential and binds lower courts.
How the U.S.'s Stance Towards the WTO May Have Complicated Its NAFTA Negotiations
By Maria Puppo Martinez – April 12, 2018
Recently the United States has been expressing strong disapproval of NAFTA's Chapter 19, citing sovereignty issues, among other criticisms.
Young Lawyers: The Danger of Raising Baseless Arguments to Evade Arbitration
By Charles E. Harris II – March 26, 2018
An attorney was sanctioned for a flood of frivolous arguments seeking to duck arbitration, a sanction affirmed by a unanimous Seventh Circuit panel.
Summary Disposition in Arbitration
By John A. Shope and Diana Tsutieva – March 26, 2018
Summary determination procedures are now a staple feature of most international and domestic arbitration rules, and courts will not vacate an award simply because it was issued on a summary basis.
Federal Mediation Privilege—How Far Does It Go?
By Sheila J. Carpenter – March 26, 2018
Practitioners expect that their communications with a mediator will be confidential but how far does that confidentiality extend beyond the mediation conference itself?
Threat of Sanctions on Counsel Who Employed "Scorched Earth" Tactics
By P. Jean Baker – March 26, 2018
Counsel engaged in multiple failed attempts to vacate an arbitration award, including asking a California court to countermand a final decision of the Seventh Circuit.
Ten Arbitration Trends Of 2017
By Liz Kramer – January 25, 2018
2017 was a big year in arbitration law.