Arbitration is meant to be an alternate to litigation. Yet arbitration is itself the subject of much litigation over who must arbitrate, what must be arbitrated, whether and how the arbitration should proceed, and the deference courts must show to arbitration awards. This blog is intended to be a resource for litigators, in-house counsel, arbitrators and anyone else who wants to stay on top of the many thorny issues that arise under the Federal Arbitration Act. Our Bloggers →

Latest Arbitration Rules/Procedures Posts
A lot of money in piles of coins

Is Refusal To Pay Fees A Way Out Of Arbitration?

By Liz Kramer | August 10 2016

Arbitration Rules/Procedures, Litigation vs. Arbitration The 9th Circuit recently allowed a claimant to proceed in court after her arbitration had been terminated due to her  failure to pay half the arbitration fees. Tillman v. Tillman, __ F.3d __, 2016 WL 3343785 (9th Cir. June 15, 2016). The case involved a client's malpractice claim against her lawyers, which was...


Snowstorm 063

January Arbitration Update: Effective Vindication, Class Arbitration, and FAA Preemption

By Liz Kramer | January 29 2016

Appealing Arbitration Decisions, Arbitration Rules/Procedures, Class Arbitration, Waiver of Right to Arbitrate Lots of interesting arbitration law has been made already in 2016, so here is a roundup from the first four weeks of the year. As a teaser, courts have breathed life into the effective vindication doctrine, found arbitrators cannot determine the availability of class actions, and found state laws not preempted. ...


USA, Alaska, recreational vehicle driving on road, side view

Final Means Final: No Reconsideration in Arbitration

By Liz Kramer | November 20 2015

Appealing Arbitration Decisions, Arbitration Rules/Procedures Recent decisions from the 3d and 11th Circuits drive home this point: an arbitration award is final and should not be revisited. In Robinson v. Littlefield, 2015 WL 5520017 (3d Cir. Sept. 17, 2015), the parties arbitrated their dispute over the quality of a new RV.  The arbitrator ruled for the RV buyers, awarding...



Nevada Says Rule 68’s Offer of Judgment Applies In Arbitration

By Liz Kramer | November 16 2015

Appealing Arbitration Decisions, Arbitration Rules/Procedures Today's post is a good one for all those defendants/ respondents who are convinced that they have a slam-dunk case and want to recover their attorneys' fees.  Because while these particular respondents were not successful, they paved a path that may lead others to collect attorneys' fees after defeating claims in...



Same Arbitration Story, Different Jurisdiction: NAF, NLRB, and Nursing Homes

By Liz Kramer | November 8 2015

Arbitration Rules/Procedures, Class Arbitration, Validity of Arbitration Agreement Some arbitration topics just never die.  This post strings together new cases on three of those topics: 1) whether arbitration agreements that call for the now-defunct National Arbitration Forum (NAF) are enforceable; 2) formation fights in nursing home agreements; and 3) the continuing fight between the NLRB and the...



Defendant’s Failure To Pay Arbitration Fees Cannot Stymie Claims Against It

By Liz Kramer | May 28 2015

Arbitration Rules/Procedures, Litigation vs. Arbitration Usually, when faced with a respondent who refuses to pay its share of the arbitration fees, a claimant simply pays both sides' fees, so that the arbitration can proceed.  A new case out of the Tenth Circuit answers the question: what happens if it does not pay both sides' fees?  Pre-Paid Legal Services, Inc. v....


anguilla 3d flag

5th Circuit Vacates Arbitration Award Conducted By Wrong Arbitrator Under Wrong Rules

By Liz Kramer | April 14 2015

Appealing Arbitration Decisions, Arbitration Rules/Procedures Let's say your arbitration agreement calls for arbitration administered by JAMS under JAMS rules, but the arbitrator is independent and applies AAA rules, over one party's objection.  A new decision from the Fifth Circuit says that is enough to vacate the resulting award. In Poolre Insurance Corp. v....


Stack of waste paper

Beyond the Headlines Part I: What The New CFPB Report Teaches Us About Arbitration Clauses

By Liz Kramer | March 11 2015

Arbitration Rules/Procedures, Litigation vs. Arbitration The Consumer Financial Protection Bureau released an “Arbitration Study” exceeding 700 pages to Congress this week.  You have likely heard the headlines – most commentators assume that the CFPB will use the study to support an effort to restrict or regulate the use of “pre-dispute” arbitration in financial...



Lessons From Lance Armstrong About the Finality of Arbitration Awards

By Liz Kramer | February 18 2015

Appealing Arbitration Decisions, Arbitration Rules/Procedures On February 4, an arbitration panel ordered Lance Armstrong to pay $10 million to his former promotions company, SCA, as a result of his “unparalleled pageant of international perjury, fraud and conspiracy” that covered up his use of performance-enhancing drugs.  (Read the NYT story about it here.)  What is...



Hawaii Finds Unilateral Arbitrator-Selection Provision Fundamentally Unfair

By Liz Kramer | November 5 2014

Arbitration Rules/Procedures, Validity of Arbitration Agreement The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL 5503393 (Haw. Oct. 31, 2014).  The parties can either jointly agree to a forum, or the court...