Class Arbitration: Contractual “Crickets” Are Sufficient for Ninth Circuit to Determine That Class Arbitration Is Permitted, Distinguishing Stolt-Nielsen
August 9, 2017| Blog
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
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
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
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
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
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
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
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
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
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
“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.
A Primer for Enforcement in the U.S. of Foreign-Issued Arbitration Awards (Courtesy of the Second Circuit)
April 10, 2017| Blog
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”).
Powers of a District Court to Grant Interim Relief After Compelling Arbitration of All Claims Before It
April 3, 2017| Blog
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.
March 27, 2017| Blog
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.
An Arbitration Agreement That Attempts to Skew a Statutory Arbitration Scheme Is Void as Against Public Policy
March 20, 2017| Blog
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.
March 1, 2017| Blog
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?
Does the Show Stop For Appeal After a Court Compels Arbitration? The Federal Circuit Courts Are Split
February 24, 2017| Blog
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.
February 13, 2017| Blog
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.
Employers Hold Their Collective Breath re the Enforceability of “Class Action” Waivers in Arbitration Agreements -- Supreme Court to Part the Clouds this Term
January 31, 2017| Blog
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?
Yes We Can: The Door Opens in the Second Circuit to Discovery in Aid of International Commercial Arbitration
January 24, 2017| Blog
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.
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