May 23, 2018| Blog
The cost of arbitration, including attorneys’ fees, can be substantial, commensurate with the matters in dispute. Your desire to settle a dispute that is going to arbitration is often as or more substantial. But sometimes your adversary is not willing to settle at your very rational number.
In a proceeding under the Federal Arbitration Act (“FAA”) to determine if a dispute must be arbitrated, a federal district court performs a more limited function than in a plenary civil action.
Supreme Court Will Determine If Silence in an Arbitration Clause May Be Judicially Interpreted to Permit Class Arbitration
May 4, 2018| Blog
On April 30, 2018, the U.S. Supreme Court granted certiorari to review an unpublished Ninth Circuit decision in Varela v. Lamps Plus, Inc., No. 16-56085 (9th Cir. Aug. 3, 2017). See Lamps Plus, Inc. v. Varela (No. 17-988, U.S. Sup.).
April 24, 2018| Blog
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., provides the usual means of enforcing an arbitration agreement by compelling a party to arbitrate rather than litigate. Thus, the FAA enables an aggrieved party to seek “an order directing that such arbitration proceed in a manner provided for in such agreement.”
Whiplash: When a Court Finds That the Parties’ Claims Are Within the Scope of a Valid Arbitration Agreement, But It Will Not Compel Arbitration
April 17, 2018| Blog
Is there such a thing as an arbitration joke? Here is a test. Two plaintiffs walk into a court, claiming that each was wrongfully terminated by a bank (UBS). The bank moves to compel arbitration by plaintiff one; and it moves to dismiss the judicial claim of plaintiff two because that plaintiff had already brought his claim in an arbitration that he commenced.
April 12, 2018| Blog
An ex parte proceeding in a U.S. court to “recognize,” “enforce,” or “confirm” an arbitration award against a foreign sovereign is improper. The U.S. Court of Appeals for the Second Circuit issued a lengthy and instructive decision to that effect in Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863 F.3d 96 (2d. Cir. 2017).
March 26, 2018| Blog
As discussed in an earlier post, obtaining discovery from a non-party to an arbitration often is easier said than done. Depending on the law of the place of arbitration, arbitrators may not be able to compel document production or testimony from a non-party before a hearing on the merits.
March 22, 2018| Blog
Arbitration is a creature of contract. So is the law concerning contracts with an arbitration clause the same as the law concerning any other contract? Almost. One must always bear in mind the “separability” or “independence” of the arbitration agreement -- the autonomy principle.
March 12, 2018| Blog
The drive in the Second Circuit to clarify the rules regarding confirmation and enforcement of various types of arbitration awards continues. The latest addition is the decision in BSH Hausgerate GmbH v. Kamhi, 17 Civ. 5776, 2018 U.S. Dist. LEXIS 34597 (S.D.N.Y Mar. 2, 2018) (Sweet, J.).
March 6, 2018| Blog
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
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
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
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
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
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
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
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
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
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.
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