Arbitration, Mediation & Alternate Dispute Resolution

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SCOTUS Throws a Haymaker at “Class Arbitration”: a Waiver of Class Arbitration in an Employment-Related Agreement Is Indeed Enforceable

June 21, 2018 | Blog

The majority of a divided (5-4) SCOTUS recently held that a waiver of “class arbitration” in agreed terms of employment is indeed enforceable. In doing so, the Court advanced the legal analysis of “class arbitration” that was begun several years ago by Justice Antonin Scalia, confirmed that arbitration is fundamentally a creature of contract, and concluded, among other things, that the NLRA was not in conflict with and did not override or displace the FAA.
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#MeAgain: New York Appellate Court Applies State Law to Vacate Arbitration Award As a Violation of Public Policy (Prohibiting Workplace Harassment)

June 12, 2018 | Blog

Lest we forget, many are the arbitrations that are subject to state arbitration law rather than the Federal Arbitration Act (“FAA”). And one should never underestimate the differences between those regimes. For example, under the FAA, the grounds for vacatur of an award are few and narrowly construed.
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An Arbitrator’s Power May Be Greater Than That of a Judge

June 7, 2018 | Blog | By Narges Kakalia

Arbitration is a creature of contract, and an arbitrator’s powers are in effect defined by the parties’ arbitration agreement. Paradoxically, although an arbitration agreement can be written (double-spaced) on one side of a cocktail napkin, in some cases it may grant greater authority to an arbitrator than a judge has.
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Arbitration Jiu Jitsu: Increasing the Pressure to Settle With a “Sealed Settlement Offer”

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.
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Must Your Dispute Be Arbitrated? You May Be Entitled to Discovery to Find Out.

May 9, 2018 | Blog | By David Barres

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.
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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.).
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When Seeking to Compel Arbitration, a Motion to Dismiss Is Sometimes the First Step

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.”
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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.
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When Seeking to Enforce an ICSID Arbitration Award Against a Foreign Sovereign, Think FSIA First

April 12, 2018 | Blog | By Kevin Ainsworth

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).
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Pre-Arbitration Discovery: Turn to State Law Where the Federal Rules are Inadequate

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.
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Arbitrability Basics: An Illustration of the “Autonomy” Principle

March 22, 2018 | Blog | By Narges Kakalia

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.
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“Ambiguity” Is Not a Basis to Deny a Petition to Enforce a Foreign Arbitration Award

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.).
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Dissecting Common Basic Arbitration Clauses -- You Can Build a Better One

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?
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Your Arbitration Is Not Yet Filed, But Attachment in Aid of That Arbitration May Be Available

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.
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Is “Class Arbitration” an Oxymoron -- Another Shoe Drops in the Second Circuit

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.
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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.
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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.
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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.
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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. 
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On-line Arbitration Agreements: A Tale of Two “Click Wraps”

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).
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