2019
U.S. Discovery Not Available in Foreign Enforcement Proceeding
By Mitchell L. Marinello – November 5, 2019
The court ruled that all statutory requirements for 28 U.S.C. §1782 were not satisfied.
Nevada Statute Preempted by FAA; Similar NJ Statute Survives For Time Being
By D. C. Toedt III – October 23, 2019
The Nevada Supreme Court held that the Federal Arbitration Act preempts NRS 597.995 and that statute did not void the arbitration clause.
Ohio Appellate Court Enforces Arbitration Agreements, Leaves Conflicts to Arbitrator
By Michael H. Diamant – October 16, 2019
The court ordered arbitration for a dispute involving multiple parties and contracts in a strong opinion supporting arbitration and the authority of an arbitrator under the AAA rules.
The New York Convention or the FAA: Circuit Split Still Stands
By Rebecca Lunceford Kolb – October 2, 2019
The Eleventh Circuit maintains its outlier status on the enforcement of non-domestic arbitration awards.
Evaluation in Mediation
By Joan Stearns Johnsen – September 24, 2019
The conversation should change from whether a mediator’s style is evaluative or facilitative to how effective the mediator is.
Cert. Granted in International Arbitration Case Involving Non-Signatory
By Mark Kantor – September 18, 2019
We shall soon learn how the U.S. Supreme Court believes non-signatories fit into the commercial arbitration universe.
New York Law Prohibiting Arbitration of Sexual Harassment Claims Is Preempted
By Mitchell L. Marinello – September 12, 2019
State legislatures and courts are constantly trying to create ways around arbitration agreements, and either do not consider or concern themselves with federal law in this area.
California Court Discusses Another Exception to Doctrine of Officio Functus
By Joel Levine – September 4, 2019
The California Supreme Court explained that the doctrine applies only after the arbitrator’s assigned duties have ended and is not so rigid as to always apply after the issuance of an award.
Arbitrator’s Failure to Issue a “Reasoned Award” Results in a Remand
By Maheema Haque – August 28, 2019
Although many arbitral institutions require or at least encourage “reasoned awards,” they generally do not provide guidance on what a “reasoned” award means.
Ambiguous Arbitration Provision Prohibits Class Arbitration of Dispute
By Andrew Campbell – August 21, 2019
The Supreme Court held that consent to a class arbitration cannot be inferred through the application of state court rules for resolving ambiguous contracts.
Carve-Out for Equitable Relief Trumped by AAA Rule
By Joel Levine – August 14, 2019
The court held that the carve-out did not remove from the arbitrator the power to decide arbitrability.
What Qualifies as a Reasoned Award?
By S.I. Strong – July 29, 2019
Reasoned awards are not required in arbitration, but if the parties contract for such an award, they are entitled to receive such a document.
Petrobas Decision Rejects Allegations of Arbitrator Bias
By Mark Kantor and Mitchell Marinello – July 24, 2019
The opinion continues trend of skeptical treatment by federal courts toward a losing party’s allegations that an arbitrator showed “evident partiality.”
Homeowner Must Arbitrate Roofing Dispute
By J. Kent Holland, Jr. – July 17, 2019
An agent can bind a principal to an arbitration agreement just like any other contract.
New Jersey Court Applies Severability Principle
By Joel Levine – July 10, 2019
This principle holds that an agreement to arbitrate is a separate agreement from the contract in which the arbitration clause is contained.
Settlement Agreements and the New York Convention
By S.I. Strong – June 26, 2019
The world of international commercial dispute resolution is becoming increasingly complex.
New Jersey: Time to Review Those Arbitration Clauses Again?
By Robert E. Bartkus – June 19, 2019
Some highlights from New Jersey court rulings that are important for transaction lawyers drafting arbitration clauses.
Supreme Court Eliminates “Wholly Groundless” Exception
By John Haarlow, Jr. – June 12, 2019
Parties who receive meritless motions to compel arbitration have to let the arbitrator decide the question if that is what their arbitration agreement provides.
Canadian Law Lets Consumers Avoid Arbitration Clauses that Prohibit Class Actions
By Daniel Urbas – June 6, 2019
Business customers remain bound by their agreements.
Kentucky Legislature Overrules Snyder Decision
By Jay Inman – May 30, 2019
A new law reaffirms an employer’s right to use arbitration agreements.
Reframing: A Lesson in Plain View
By John Bickerman – May 22, 2019
Use this technique to help parties overcome a major psychological barrier to settlement.
IBA Subcommittee Publishes Technology Guide
By S.I. Strong – May 8, 2019
The guide discusses options that can be used to augment or assist international arbitration.
Debt Collector Waived Right to Arbitrate
By Mitchell L. Marinello – May 1, 2019
Parties who wish to enforce an arbitration agreement should not delay in seeking such relief.
Consolidation and Joinder in Arbitration
By James Reiman and Megan Smith Richardson – April 24, 2019
A recent case in Ohio provides an interesting example of the issues that may arise when joining parties and cases.
Threshold Arbitrability Questions: Who Gets to Decide?
By Arielle Wasserman – April 17, 2019
If a contract with a public board is not included in the board’s minutes, do the courts or the arbitrator decide if its arbitration clause is enforceable?
Discovery in Arbitration: Agreement, Plans, and Fairness
By Janice L. Sperow – April 10, 2019
One arbitrator’s view of how you can structure the discovery process.
District Court Defers to Appellate Arbitration Panel
By Mark Kantor and Mitchell Marinello – April 03, 2019
The interesting aspect of the district court decision is that it applies the same standard of review to the appellate arbitration award as it would apply to an initial award under the FAA.
Canadian Court Defers to Appellate Arbitration Decision
By Daniel Urbas – March 21, 2019
Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.
Ninth Circuit Permits Appeal of Order Remanding Case for New Arbitration
By Andrew D. Campbell – March 06, 2019
The circuit determined that an order that vacates and orders further proceedings was appealable.
What Will They Think of Next?
By Mitchell L. Marinello – February 27, 2019
The FAA says state law may not discriminate against arbitration agreements, but state legislatures and courts, most recently in Kentucky, keep coming up with new ways to avoid this ruling.
Parties Share Responsibility for Getting Complete Arbitrator Disclosures
By Jeanne Kohler – February 13, 2019
A party’s failure to ask questions can doom its later effort to avoid confirmation of the award.
Second Circuit Recognizes Exception to Functus Officio Doctrine
By Michael S. Oberman – February 6, 2019
The court affirmed, largely based on precedent from other circuits.
The Hague Conference Guide on the Use of Video Links
By S. I. Strong – January 23, 2019
Although the Hague Evidence Convention is not binding in arbitration, neutrals and advocates would be well advised to take these principles into consideration.
Seventh Circuit: Class Arbitration Is for Courts to Decide, Not Arbitrators
By Gail Jankowski – January 17, 2019
Although predictions are hazardous, in all likelihood the district court will find that the applicable arbitration clause does not authorize class or collective arbitration.
Supreme Court Says “Wholly Groundless” Argument Is Just That
By Mitchell L. Marinello – January 10, 2019
In the absence of a clause giving the arbitrator the right to decide his or her own jurisdiction or the adoption of arbitration rules that give the arbitrator this authority, the courts are responsible for deciding issues of arbitrability.
2018
What Do You Call a Worker?
By Maretta Comfort Toedt – December 28, 2018
The Federal Arbitration Act, mandatory arbitration agreements, and independent contractors.
Eleventh Circuit Adds to Circuit Split Over Class Arbitrations
By Henry R. Chalmers – December 20, 2018
According to the court, incorporating AAA Rules into an arbitration agreement is sufficient evidence that the parties intended for the arbitrator, not a court, to decide whether an agreement permits arbitration of class claims.
Ethics Misstep Leads to Fee Award Being Vacated
By Mitchell L. Marinello – December 6, 2018
Lawyers should disclose conflicts of interest at the beginning of the engagement to avoid the risk of disqualification and of losing the client and compensation.
Non-Signatory Insurers Able to Compel Arbitration
By Melanie Mohr – November 28, 2018
Using the doctrine of equitable estoppel can require plaintiffs to arbitrate when their claims are intertwined with others that are subject to arbitration.
U.S. Supreme Court to Decide Three Arbitration Cases in Fall 2018 Term
By Beth Graham – November 16, 2018
The Court heard oral arguments in October of this year.
Be Sure Your Arbitration Agreement Is Clear about Who Decides Arbitrability
By Maretta Comfort Toedt – November 7, 2018
The parties also did not settle on whether the agreement provided the dispute to be heard as a class.
Arbitration Can’t Be Efficient if the Parties (or Any Party) Won’t Let It Be
By Robert L. Arrington – October 31, 2018
Sometimes the parties themselves conspire, wittingly or unwittingly, to make the process slower and more expensive than litigation.
California’s Birbrower Decision Is Laid to Rest
By Dixon Q. Dern – October 25, 2018
Lawyers are no longer considered to be engaging in “the unauthorized practice of law.”
Second Circuit Declines to Enforce Consumer Arbitration Post-Bankruptcy
By Briana Echols – October 10, 2018
Employers can use arbitration clauses to prevent class action suits from employees.
Texas Court Affirms Award Against Absent Party
By Melanie Mohr – September 26, 2018
Dixie ordered to pay $16 million for breach of contract.
California Requires New Mediation Disclosure
By Ana M. Sambold – September 20, 2018
Attorneys are now required to provide clients with a printed disclosure regarding confidentiality restrictions in mediation and obtain a signed acknowledgement.
Award Confirmed Despite Exclusion of Evidence
By Mark Kantor – September 13, 2018
An arbitrator is not required to accept all the evidence so long as the parties receive a fundamentally fair hearing.
"Very Limited Review" Given to Arbitration Award in Divorce Setting
By Andrew VandenBerg – September 6, 2018
The arguments for modification or rejection did not meet requirements stated in the Illinois Uniform Arbitration Act.
Delegation Clause in Insurance Contract Is Void under Virginia Law
By Mengru Song – August 29, 2018
Insurers cannot compel a policyholder to arbitrate insurance disputes.
Mississippi Supreme Court Rejects Trial Court’s Modification of Award
By Katharine Kohm – August 23, 2018
The court emphasized that "arbitration is meant to supplant litigation, not supplement it."
Non-Signatory Cannot Be Required to Arbitrate
By Julia Karaulna – August 15, 2018
The First Circuit concluded that agency, equital estoppel, and third-party beneficiary theories did not apply in this case.
Two Brokers Sue FINRA: The Immunity of Arbitral Institutions
By Mark Kantor – August 9, 2018
A recent decision from the U.S. Court of Appeals for the Seventh Circuit leaves many important issues about this topic unresolved.
Judgment Confirming Award Reversed Due to Hague Convention
By Mitchell L. Marinello – July 31, 2018
The California Court of Appeals found two recent cases unpersuasive.
Intervention Denied in Proceeding to Confirm Arbitration Award
By S.I. Strong – July 20, 2018
Proposed intervenors claimed an interest in the proceeding based on a fear that the award might ultimately be enforced against them.
Post-Litigation Arbitration Agreement Held Unenforceable
By Raven Villegas – July 13, 2018
Compelling arbitration a year after the commencement of litigation is viewed as a delay tactic.
Uber Defeated by the Color of Its Hyperlink
By Liz Kramer – July 5, 2018
Does enforcement of an arbitration clause hinge on the color of your website design?
Supreme Court to Hear “Groundless Arbitration” Case
By Mark Kantor – June 29, 2018
Does the Federal Arbitration Act permit an arbitrator to decide arbitrability?
Enforcement of Arbitration Clause Does Not Constitute State Action
By Milana Lickova – June 22, 2018
AT&T customers brought a class action alleging false advertising of data services.
Will SEC Approve Mandatory Securities Arbitration?
By S.I. Strong – June 13, 2018
Questions have arisen as interest in shareholder arbitration has been increasing around the world.
Are Truck Drivers Exempt from the FAA When Classified as Independent Contractors?
By Mitchell L. Marinello – June 6, 2018
The exemption does not apply to sales employees but only to “transportation workers.”
An Epic Decision
By Debra Fischman, James M. Garner, and Jeffrey D. Kessler – May 30, 2018
Employers may continue to require workers to relinquish the right to bring class-action claims on disputes over wages and hours.
Text Message Plaintiff Not Bound to Arbitrate
By Nicole O’Toole – May 23, 2018
Subway's spam causes headache, not indigestion.
Wanna Be a Mediator? Find a Niche
By John Bickerman – May 16, 2018
Becoming a successful neutral is not an easy task and there is no guarantee for success.
Arbitral Immunity Does Not Apply to Claim for False Advertising
By S.I. Strong – May 10, 2018
The ultimate decision in federal court could have significant repercussions on the arbitral industry.
Arbitrators Not Authorized to Subpoena Non-Parties for Document Discovery
By Mark Kantor – May 2, 2018
The Ninth Circuit based its decision on this emerging rule on a textual reading of the FAA.
FLSA Claims Held Arbitrable Against All Three Employers
By Kelly Rice – April 25, 2018
Signing an employment contract with only one company does not preclude arbitration with all companies involved.
Arbitrator Has Authority to Make Summary Dispositions
By Mark Kantor and Mitchell Marinello – April 19, 2018
The court found such authority was implicit.
Arbitrator Decides Own Jurisdiction under JAMS Rules
By Henry Caldwell – April 13, 2018
The incorporation of JAMS rules into the clause granted power “clearly and unmistakably” to the arbitrators.
Med-Arb: Maybe Not a Better Idea
By John Bickerman – April 4, 2018
Should the same person serve as the mediator and arbitration in a single dispute?
Minor Not Bound by Mother’s Arbitration Agreement
By S.I. Strong – March 28, 2018
A class action complaint was filed against Credit One Bank for repeated, harassing telephone calls to the child’s cellphone.
Appropriations Act Targets Arbitration
By Mark Kantor – March 22, 2018
A last-minute budget agreement slides a pre-dispute arbitration provision rider into final legislation.
Mixing It Up: Did We Mediate or Arbitrate?
By Mitchell L. Marinello – March 14, 2018
Be careful to properly document the nature of your proceedings.
Reference to Nonexistent Arbitration Forum Nullifies Arbitration Agreement
By Robert E. Bartkus – March 8, 2018
CashCall has been the subject of significant litigation due to its unique business model and bizarre arbitration clauses.
Email to Employee Not Sufficient Notice of Arbitration
By S.I. Strong – February 28, 2018
A recent case from the English Commercial Court considers issues relating to service of notice of arbitration by email.
Financial Hardship Can Nullify Employee’s Obligation to Arbitrate Statutory Claims
By Lally Gartel – February 13, 2018
New York appellate court rules the trial court also could consider the risk that the plaintiff might have to pay the defendant’s legal fees and expenses.
How (Not) to Carve Out Injunctive Relief from Arbitration Clauses
By D.C. Toedt III – February 8, 2018
A lesson in drafting.
Federal Court Refuses to Seal Judicial Record of Arbitration
By Mark Kantor – January 23, 2018
A recent decision offers a reminder of the hurdle a party must meet to seal a proceeding to confirm or vacate an award.
Ninth Circuit Holds that Arbitration Is Not State Action
By S.I. Strong – January 12, 2018
There’s been much scholarly debate on how best to describe the connection between arbitration and the Constitution.
Arbitrator Not Required to Follow Own Precedent
By Michael S. Oberman – January 5, 2018
The arbitrator interpreted a collective bargaining agreement differently in two different cases.
Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.
By Daniel Urbas
In July 2018, a Canadian court issued a decision giving deference to a decision made by an appellate arbitration panel. SG Ceresco Inc. v. BroadGrain Commodities Inc., 2018 MBQB 120.
SG Ceresco Inc. (Ceresco) and BroadGrain Commodities Inc. (BroadGrain) entered into a contract for the purchase of $684,649 USD worth of soybeans (the contract). BroadGrain sourced the soybeans from Prograin Inc., a third party. Ceresco paid BroadGrain’s initial invoices but, further to information Ceresco received after making partial payment, disputed the quality of the first shipment. Inspections of subsequent shipments raised the same quality questions. Ceresco and BroadGrain exchanged positions on the issues of quality and inspection but did not resolve their dispute, leaving BroadGrain’s final invoice unpaid.
The contract provided that any disputes would be resolved by arbitration through the Canadian Special Crops Association (CSCA), a national industry association for pulse crops and special crop growers. The CSCA provides a comprehensive set of arbitration rules, including internal appeals, which Ceresco and BroadGrain agreed in the contract to use.
BroadGrain initiated arbitration against Ceresco, and a three-member arbitration panel, called an “Arbitration Committee” under the arbitration rules, determined that Ceresco was entitled to compensation in the amount of $265,000 USD for the losses stemming from the BroadGrain’s breaches of the contract. BroadGain appealed to a five-member arbitration tribunal called the “Board of Appeal.” The Board of Appeal set aside the Arbitration Committee’s award and issued an award requiring Ceresco to pay BroadGrain’s final invoice in the amount of $137,000 USD. Ceresco challenged the board’s decision in the Canadian courts.
Madam Justice Grammond, Manitoba Queen’s Bench, dismissed the challenge to the Board of Appeal decision. She applied Teal Cedar Products v. British Columbia, 2017 SCC 32, para. 1, in which the Supreme Court of Canada noted that the scope of appellate intervention in commercial arbitration is narrow even when the court’s jurisdiction is limited to a question of law. Judge Grammond also relied on the Supreme Court of Canada’s decision in Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 which held that, even where jurisdiction exists, the deferential standard of review of reasonableness almost always applies to arbitration awards.
The judge pointed to the policy objectives stated in Teal Cedar Products v. British Columbia: “Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.” These key policy objectives of commercial arbitration were also noted in Wolfe et al v. Taylor et al; Fat Cat Farms Ltd et al v. Wolfe et al, 2017 MBCA 74, para. 74.
Daniel Urbas is an experienced arbitrator and mediator at Urbas Arbitral in Montreal, QC, Canada.
Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).
Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.
By Daniel Urbas
In July 2018, a Canadian court issued a decision giving deference to a decision made by an appellate arbitration panel. SG Ceresco Inc. v. BroadGrain Commodities Inc., 2018 MBQB 120.
SG Ceresco Inc. (Ceresco) and BroadGrain Commodities Inc. (BroadGrain) entered into a contract for the purchase of $684,649 USD worth of soybeans (the contract). BroadGrain sourced the soybeans from Prograin Inc., a third party. Ceresco paid BroadGrain’s initial invoices but, further to information Ceresco received after making partial payment, disputed the quality of the first shipment. Inspections of subsequent shipments raised the same quality questions. Ceresco and BroadGrain exchanged positions on the issues of quality and inspection but did not resolve their dispute, leaving BroadGrain’s final invoice unpaid.
The contract provided that any disputes would be resolved by arbitration through the Canadian Special Crops Association (CSCA), a national industry association for pulse crops and special crop growers. The CSCA provides a comprehensive set of arbitration rules, including internal appeals, which Ceresco and BroadGrain agreed in the contract to use.
BroadGrain initiated arbitration against Ceresco, and a three-member arbitration panel, called an “Arbitration Committee” under the arbitration rules, determined that Ceresco was entitled to compensation in the amount of $265,000 USD for the losses stemming from the BroadGrain’s breaches of the contract. BroadGain appealed to a five-member arbitration tribunal called the “Board of Appeal.” The Board of Appeal set aside the Arbitration Committee’s award and issued an award requiring Ceresco to pay BroadGrain’s final invoice in the amount of $137,000 USD. Ceresco challenged the board’s decision in the Canadian courts.
Madam Justice Grammond, Manitoba Queen’s Bench, dismissed the challenge to the Board of Appeal decision. She applied Teal Cedar Products v. British Columbia, 2017 SCC 32, para. 1, in which the Supreme Court of Canada noted that the scope of appellate intervention in commercial arbitration is narrow even when the court’s jurisdiction is limited to a question of law. Judge Grammond also relied on the Supreme Court of Canada’s decision in Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 which held that, even where jurisdiction exists, the deferential standard of review of reasonableness almost always applies to arbitration awards.
The judge pointed to the policy objectives stated in Teal Cedar Products v. British Columbia: “Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.” These key policy objectives of commercial arbitration were also noted in Wolfe et al v. Taylor et al; Fat Cat Farms Ltd et al v. Wolfe et al, 2017 MBCA 74, para. 74.
Daniel Urbas is an experienced arbitrator and mediator at Urbas Arbitral in Montreal, QC, Canada.
Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).
Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.
By Daniel Urbas
In July 2018, a Canadian court issued a decision giving deference to a decision made by an appellate arbitration panel. SG Ceresco Inc. v. BroadGrain Commodities Inc., 2018 MBQB 120.
SG Ceresco Inc. (Ceresco) and BroadGrain Commodities Inc. (BroadGrain) entered into a contract for the purchase of $684,649 USD worth of soybeans (the contract). BroadGrain sourced the soybeans from Prograin Inc., a third party. Ceresco paid BroadGrain’s initial invoices but, further to information Ceresco received after making partial payment, disputed the quality of the first shipment. Inspections of subsequent shipments raised the same quality questions. Ceresco and BroadGrain exchanged positions on the issues of quality and inspection but did not resolve their dispute, leaving BroadGrain’s final invoice unpaid.
The contract provided that any disputes would be resolved by arbitration through the Canadian Special Crops Association (CSCA), a national industry association for pulse crops and special crop growers. The CSCA provides a comprehensive set of arbitration rules, including internal appeals, which Ceresco and BroadGrain agreed in the contract to use.
BroadGrain initiated arbitration against Ceresco, and a three-member arbitration panel, called an “Arbitration Committee” under the arbitration rules, determined that Ceresco was entitled to compensation in the amount of $265,000 USD for the losses stemming from the BroadGrain’s breaches of the contract. BroadGain appealed to a five-member arbitration tribunal called the “Board of Appeal.” The Board of Appeal set aside the Arbitration Committee’s award and issued an award requiring Ceresco to pay BroadGrain’s final invoice in the amount of $137,000 USD. Ceresco challenged the board’s decision in the Canadian courts.
Madam Justice Grammond, Manitoba Queen’s Bench, dismissed the challenge to the Board of Appeal decision. She applied Teal Cedar Products v. British Columbia, 2017 SCC 32, para. 1, in which the Supreme Court of Canada noted that the scope of appellate intervention in commercial arbitration is narrow even when the court’s jurisdiction is limited to a question of law. Judge Grammond also relied on the Supreme Court of Canada’s decision in Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 which held that, even where jurisdiction exists, the deferential standard of review of reasonableness almost always applies to arbitration awards.
The judge pointed to the policy objectives stated in Teal Cedar Products v. British Columbia: “Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.” These key policy objectives of commercial arbitration were also noted in Wolfe et al v. Taylor et al; Fat Cat Farms Ltd et al v. Wolfe et al, 2017 MBCA 74, para. 74.
Daniel Urbas is an experienced arbitrator and mediator at Urbas Arbitral in Montreal, QC, Canada.
Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).