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 Litigation vs. Arbitration Posts

Study of Corporate Counsel Shows Arbitration Is Past Its “Tipping Point,” Usage Declining

By Liz Kramer | March 8 2013

Litigation vs. Arbitration A new article is out with more detail about how opinions among counsel for Fortune 1000 companies have changed over the last 15 years with respect to arbitration and mediation.  (I posted initial info here last spring.) By comparing results of a 1997 survey of Fortune 1,000 corporate counsel with results of...

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Authority To Enter Into Contract Is Issue For Courts, Not Arbitrators

By Liz Kramer | February 21 2013

Litigation vs. Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement The Third Circuit just issued a decision that tries to divine the dividing line between challenges to the formation of contracts containing arbitration clauses (which are presumptively for courts), and challenges to the validity of contracts containing arbitration clauses (which are presumptively for arbitrators, if...

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Any Agreement To Submit Disputes To A Third Party Is An “Arbitration Agreement” Subject to FAA

By Liz Kramer | January 24 2013

Litigation vs. Arbitration, Validity of Arbitration Agreement Did you know that you can form an arbitration agreement without ever using the word "arbitration"?  That's what the Second Circuit held this week in Bakoss v. Certain Underwriters at Lloyds of London, __ F.3d __, 2013 238708 (2d Cir. Jan. 23, 2013). Bakoss analyzed the clause in a disability insurance...

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Abstention Trumps Arbitration In Tenth Circuit

By Liz Kramer | January 16 2013

Litigation vs. Arbitration, Waiver of Right to Arbitrate The Tenth Circuit this week refused to consider a plaintiff's substantive arguments about its right to arbitrate because it found abstention was appropriate under the Colorado River doctrine.  D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., __ F.3d __, 2013 WL 150221 (10th Cir. Jan. 15, 2013).  Though the...

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The Only Five Good Reasons To Put Arbitration In Your Contract

By Liz Kramer | January 4 2013

ArbitrationNation Roadmaps (primers), Litigation vs. Arbitration Let's say you are considering updating your form contract, or you are in the midst of negotiating a new contract with someone.  Should you include mandatory arbitration for resolving any disputes?  Assuming you have the choice, my view is you should only include arbitration if at least one of these five factors...

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New Federal Agency Will Study Financial Arbitrations

By Liz Kramer | April 26 2012

Litigation vs. Arbitration Just a few months after its first Director took office in January of 2012, the Consumer Financial Protection Bureau is embarking on a study of arbitration.  The CFPB announced on April 24 that it invites the public to send information about "how consumers and financial services companies are affected by...

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Dissonance Between SCOTUS and BUSINESS On Arbitration

By Liz Kramer | April 23 2012

Litigation vs. Arbitration A new survey found that Fortune 1,000 corporations are significantly less likely to arbitrate contract disputes today than they were in 1997.  In the 1997 study, 85% of companies reported using arbitration in commercial contract disputes at least once during the prior three years.  In 2011, however, only 60 percent...

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Third Circuit Issues Reminder That Stolt-Nielsen Decision Does Not Preclude Class Arbitration

By Liz Kramer | April 11 2012

Appealing Arbitration Decisions, Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration Although courts and practitioners may think of the Stolt-Nielsen decision as the death knell of class arbitration, the Third Circuit's ruling last week serves as a reminder that the Stolt-Nielsen did not deal a mortal blow.  In fact, in Sutter v. Oxford Health Plans LLC, __ F.3d __, 2012 WL 1088887 (3d Cir. April 3,...

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Arbitration Just Got More Expensive for Arkansas Companies: Self-Representation Disallowed by Ark. Supreme Court

By Liz Kramer | April 3 2012

Arbitration Rules/Procedures, Litigation vs. Arbitration The Supreme Court of Arkansas has joined Florida, Ohio, and Arizona (at least) in holding that a non-lawyer is guilty of the "unauthorized practice of law" if he or she attempts to represent a corporation in arbitration proceedings.  Nisha v. Tribuilt Constr. Group, __ S.W.3d __, 2012 1034641 (Ark. Mar. 29,...

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11th Circuit Finds Not All Formation Challenges Are Created Equal (Some Go Straight To Arbitrator)

By Liz Kramer | March 8 2012

Litigation vs. Arbitration, Validity of Arbitration Agreement The severability doctrine of federal arbitration law tells litigants that unless they can specifically challenge the validity of the arbitration provisions of the contract, as opposed to challenging the entire contract, the courts will not address the merits of the challenge.  (See entire line of increasingly harsh...

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