March 6, 2018 | Blog | By Daniel Pascucci
Arbitration is often promoted as faster, cheaper, more predictable, and more controllable than litigation. But to many, arbitration’s promise comes up short on delivery. Why?
February 26, 2018 | Blog | By David Barres
The courts undoubtedly have the power to grant provisional remedies in aid of a pending arbitration – including temporary restraining orders, preliminary injunctions, and attachments. As a recent Fifth Circuit decision reminds us, the courts also can grant such remedies in aid of an arbitration that has yet to be commenced.
February 20, 2018 | Blog | By Gilbert Samberg
In a series of articles over the past several months, we asked whether “class arbitration” -- meaning the utilization of the Fed.R.Civ.P. 23 class action protocol in an arbitration proceeding -- is ultimately viable in U.S. jurisprudence. We suggested that it arguably is not, considering the fundamental nature of arbitration.
Oh, And One More Thing . . . Issuing A Subpoena For Documents Under 28 U.S.C. § 1782 Also Requires Personal Jurisdiction Over The Subpoena Target
February 13, 2018 | Blog | By Gilbert Samberg
Under 28 U.S.C. § 1782, “[t]he district court of the district in which a person resides or is found may order him to . . . produce a document for use in a proceeding in a foreign or international tribunal . . . .” Courts in the Second Circuit appear to be coming around to accepting that a commercial arbitration can be “a foreign or international tribunal” for these purposes.
A Belated Judicial Determination Regarding Whether a Party Is Bound By An Arbitration Agreement Requires a “De Novo” Proceeding
February 6, 2018 | Blog | By Gilbert Samberg
Typically, the issue of whether a party is bound by an arbitration agreement is raised in a judicial motion to compel under Section 4 of the Federal Arbitration Act (9 U.S.C. § 4). The issue also may be raised in a judicial application to stay an arbitration, as to which the Section 4 procedure applies as well.
An Employer’s Notice to Employees of a Mandatory Arbitration Program May be Insufficient Basis to Compel Arbitration
January 31, 2018 | Blog | By Gilbert Samberg
Arbitration is of course a creature of contract, and so a party may not be compelled to arbitrate unless it has agreed, or is deemed to have agreed, to arbitrate a dispute. An offeree may be deemed to have manifested its agreement to an arbitration regime by various sorts of conduct, including in some instances inaction in the face of notice.
Document Discovery From Non-Parties in Commercial Arbitration: Availability and Practical Considerations
October 3, 2017 | Blog | By Todd Rosenbaum
Litigators in the U.S. often take for granted the ease with which they can obtain discovery from non-parties in our federal and state courts. One might assume that the “presumption in favor of arbitrability” embodied in the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (“FAA”), would have been implemented with, among other things, a statutory grant of subpoena power to arbitrators that is virtually coextensive with that of a federal district court.
August 28, 2017 | Blog | By Kevin Ainsworth
What makes an on-line arbitration agreement binding against a website user? In Meyer v. Uber Technologies, Inc., 2017 U.S. App. LEXIS 15497 (2d Cir. Aug. 17, 2017), the U.S. Court of Appeals for the Second Circuit issued a second decision on this issue, providing additional elucidation following its 2016 decision in Nicosia v. Amazon, Inc. 834 F.3d 220 (2d Cir. Aug. 24, 2016).
August 16, 2017 | Blog | By Samuel M. Tony Starr
Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in your commercial contract are critical.
Class Arbitration: Contractual “Crickets” Are Sufficient for Ninth Circuit to Determine That Class Arbitration Is Permitted, Distinguishing Stolt-Nielsen
August 9, 2017 | Blog | By Gilbert Samberg
When is “silence” in an arbitration clause concerning class arbitration not “Stolt-Nielsen silence”? And what is the difference between a “claim” and a “procedure”? The Ninth Circuit seemingly took hair-splitting to a new level in conceiving the former question, and apparently suffered some uncertainty regarding the latter, when it issued its memorandum decision in Varela v. Lamps Plus, Inc., No. 16-56085 (Aug. 3, 2017).
July 31, 2017 | Blog | By Gilbert Samberg
In a recent series of articles, we asked whether “class arbitration” -- meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding -- is ultimately viable. Given the nature of arbitration, we suggested that it arguably is not.
Keeping the Lights On For Your Ancillary Proceeding in Federal Court: When “Dismissed Without Prejudice” Means “Stayed”
July 17, 2017 | Blog | By Gilbert Samberg
Do you ever have days when you are not your most eloquent self, the words come out in a jumble, or they are just not precisely what you intended? So do trial judges. But appeals courts seem to understand.
July 10, 2017 | Blog | By Todd Rosenbaum
When a claimant who is party to an arbitration agreement initiates litigation of arbitrable claims, the defendant in that case typically expects to be able to move successfully to compel arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4.
Enforcement of International Arbitral Awards in the U.S. – Could a Court Abstain Due To “Inconvenience”?
June 21, 2017 | Blog | By Narges Kakalia
Forum non conveniens is one of several judicial abstention doctrines, applied from time to time by U.S. courts, that permit a court to dismiss (without prejudice) a plenary action in its discretion. In a forum non conveniens case, the court’s jurisdiction is not in question, but the relative legal “inconvenience” of having the matter heard in that court, as opposed to another court of competent jurisdiction, is deemed sufficient for the U.S. court to abstain from exercising its authority.
June 14, 2017 | Blog | By Gilbert Samberg
We recently began a series of articles in which we ask whether “class arbitration” — meaning the utilization of a Federal Rule of Civil Procedure 23 class action protocol in an arbitration proceeding — is ultimately viable, considering arbitration’s essential nature, or is it an oxymoron? Here, we examine several elements of the current law, muddled as it is, regarding class arbitration.
Supreme Court Holds That the Hague Service Convention Does Not Prohibit Service of Process Abroad by Mail
June 1, 2017 | Blog | By David Barres
For nearly thirty years, federal and state appellate courts have been split on the issue of whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, November 15, 1965 (“Hague Service Convention” or “Convention”), permits service of process by mail.
State Supreme Courts Continue to Try to Chip Away at FAA Preemption; The United States Supreme Court Is Not Amused
May 23, 2017 | Blog | By Katharine Beattie, Don Davis
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., does not contain an express preemption provision, nor was it intended to be the exclusive codified arbitration law in all circumstances. However, the United States Supreme Court has repeatedly taught that where the FAA applies, it is deemed to supersede state laws that are inconsistent with its provisions and purposes.
Only in America: The Controversy Concerning Federal Jurisdiction Over Motions to Confirm, Vacate, or Modify Arbitral Awards
May 8, 2017 | Blog | By Todd Rosenbaum
In most countries, it is uncontroversial that a court sitting at the situs of an arbitration has jurisdiction to adjudicate a petition to confirm or vacate or modify an award issued in that arbitration. In the United States federal courts, however, the mix of issues concerning subject matter jurisdiction and personal jurisdiction, respectively, has made for bewilderment galore.
April 25, 2017 | Blog | By Gilbert Samberg
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.
April 17, 2017 | Blog | By Gilbert Samberg
“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.
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