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We recently began a series of articles in which we ask: Is “class arbitration” viable given the essential nature of arbitration, or is it an oxymoron? (The premise here is that “class arbitration” signifies the utilization of a Federal Rule of Civil Procedure 23 class action protocol in an arbitration proceeding.) In this article, we examine possible bases for the viability of class arbitration. Spoiler alert: they do not hold up to scrutiny.
“Class arbitration” -- the utilization of a class action mechanism in an arbitration proceeding -- is considered by some to be the unicorn of ADR; desirable but elusive. Another view is that it is the Frankenstein’s monster of ADR – an anomalous hybrid of disparate parts that comprise a disconcerting and ultimately nonviable creation.
In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2017 U.S. App. LEXIS 3815 (2d Cir. Mar. 2, 2017), the U.S. Court of Appeals for the Second Circuit provides something of a primer regarding enforcement in the United States of a foreign-issued arbitral award, which is subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and Chapter 2 of the Federal Arbitration Act (“FAA”).
Last month, we described the split among Federal Circuit Courts regarding the question of whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 3, mandates a stay rather than dismissal of a judicial proceeding after a district court compels arbitration of all of the claims in an action before it.
In an earlier post we provided advice on how to interpret the words “may” and “must” when they appear in arbitration clauses that are to be interpreted under U.S. law. Among other things, we explained that an arbitration clause that says that a party “may” submit a dispute to binding arbitration will be viewed as mandatory in U.S. courts if any party chooses to arbitrate.
Federal public policy favors arbitration and the broad interpretation and enforcement of arbitration agreements. So how can an arbitration agreement be held by a court to be void as against public policy? One answer from a state court (in circumstances where the Federal Arbitration Act did not apply) is that toying with a statutory arbitration scheme could do the trick.
You presented your case, and the arbitration tribunal came back with a reasoned decision and an award in your favor. You even had the award confirmed here in the United States. You want to enforce it. But you find that the award-debtor’s assets are all held in or have been moved to a country that is not a party to the New York Convention. Now what?
Under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., if a District Court compels arbitration of all of the claims that are before it, and thereupon dismisses the suit, its order compelling arbitration is final and appealable; but if the District Court stays the suit, its order compelling arbitration is “non-final” and not immediately appealable.
UPDATE: On February 8, 2017, the Supreme Court announced that it would delay until its October 2017 term oral arguments in the consolidated cases concerning the enforceability of class arbitration waivers in employment agreements. 
The Supreme Court is currently set to answer the question of whether employees must be permitted, if they choose, to pursue relief collectively in an arbitration proceeding. Is that “concerted activity” that is protected by the National Labor Relations Act, and does that statutory provision supervene the provisions of the Federal Arbitration Act and the right to contract freely? 
A Federal court in New York recently opened the door there for U.S.-style discovery of evidence in aid of foreign or international commercial arbitrations, in accordance with a unique American statute – 28 United States Code (“U.S.C.”) § 1782.
Is an arbitration clause mandatory or permissive when it provides that either party to the contract may elect to submit a dispute to binding arbitration? What if the contract also provides that the right to arbitrate is not exclusive of any other rights that a party has to pursue legal action in an appropriate forum?
Relevant codified procedural rules with respect to the use of experts in international arbitration are scarce, and the parties and the arbitrators therefore get to create the pertinent rules of the road in each individual proceeding.
In an effort to streamline arbitration proceedings where possible, the International Court of Arbitration of the International Chamber of Commerce (“ICC”) announced on November 4, 2016 that it would issue new Expedited Procedure Rules, effective March 1, 2017, which will comprise the new Appendix VI of its Rules of Arbitration (“ICC Arb. R.”).
In “Arbitration Agreements – Incorporation by Reference of an Arbitration Clause in in Another Document is a Simple Matter . . . Isn’t It?”,  we describe how the simple incorporation by reference of a provision in another document becomes a bit less simple when a Federal District Court says that something more is required – i.e., express notice that the other document contains an arbitration agreement among other provisions. 
In this article – “Pros and Cons of Hot Tubbing in International Arbitration” – we describe the nature of “concurrent evidence” or “witness conferencing” of experts (i.e., hot tubbing) in international arbitration, and the pros and the cons of employing such a procedure. 
In this article – “Drafting Sensible and Effective Multi-Step ADR Provisions” – we provide practical advice regarding factors to be accommodated in fashioning multi-step ADR provisions that are (1) useful and (2) likely to be enforced by the courts.
Practice and procedure in international arbitration regarding the selection of an expert witness has elements that are familiar and those that are unfamiliar to a U.S.-trained litigator.
In international arbitrations, litigators from the U.S. often find a bit of the familiar mixed in with equal or greater bits of the unfamiliar. One of the elements of international arbitration that is typically unfamiliar to U.S. litigators is the phenomenon of Tribunal-appointed experts in lieu of party-appointed experts.
An expert witness obviously should be thoroughly prepared to give oral testimony in an adversarial proceeding, and frankly that can best be done by counsel. Is that always permitted in international arbitrations? 
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