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 Posts

Executors and Personal Representatives Equally Bound to Arbitrate Wrongful Death Claims

By Liz Kramer | August 13 2012

Appealing Arbitration Decisions, Scope of Arbitration Agreement The Eleventh Circuit has "ironed out a wrinkle" in Alabama's arbitration jurisprudence that seemed to find executors outside the scope of arbitration contracts signed by the decedent.  In Entrekin v. Internal Medicine Assocs. of Dothan, P.A., ___ F.3d __, 2012 WL 3208641 (11th Cir. Aug. 9, 2012), the district...


Three Is The Magic Number: Courts Cannot Authorize Panel of Five Arbitrators When Contract Specifies Three

By Liz Kramer | August 7 2012

Arbitration Rules/Procedures In a dispute over how faithful a court must be to the parties' arbitration agreement when it is asked to resolve an impasse in arbitrator selection under Section 5 of the FAA, the Fifth Circuit decided the court must give effect to the letter of the agreement, even if that defies its spirit. In BP Exploration...


A Well-Drafted Arbitration Agreement Can Apply To Disputes Arising Before Parties’ Relationship And To Disputes With Successors

By Liz Kramer | August 3 2012

Scope of Arbitration Agreement Three federal circuit courts have recently looked at the shelf-life of an arbitration agreement.  Can it apply even before the contract is effective?  What about after a successor takes over the relationship?  What if one party unilaterally changes its terms?  The answer is that a properly worded arbitration...


Are Residential Real Estate Contracts Outside The Bounds of the Federal Arbitration Act?

By Liz Kramer | July 25 2012

Validity of Arbitration Agreement, Waiver of Right to Arbitrate The Supreme Court of South Carolina just ruled that contracts for the sale of residential property are not interstate commerce, and therefore are outside the reach of the Federal Arbitration Act.  Bradley v. Brentwood Homes, Inc., __ S.E.2d __, 2012 WL 2847616 (S.C. July 11, 2012).  That is a surprising result in my...


Sweet Tea Anyone? Three Summer Arbitration Decisions From Southern States (Ala, WVa, La)

By Liz Kramer | July 12 2012

Arbitration Rules/Procedures, Scope of Arbitration Agreement, Validity of Arbitration Agreement It must be near the end of the clerk year, because courts are going gangbusters issuing opinions.  Today, a roundup of three arbitration decisions from Southern states.  Notably, Louisiana makes it tough for lawyers to enforce arbitration agreements with their clients. After prominently noting that the lower...


First Circuit Makes Circuit Split Lopsided In Favor Of Narrowing Impact Of Stolt-Nielsen

By Liz Kramer | July 4 2012

Arbitration Rules/Procedures, Class Arbitration, Scope of Arbitration Agreement With less colorful language than its last arbitration opinion, the First Circuit sided with the Second and Third Circuits in limiting the application of the 2010 Stolt-Nielsen decision on the availability of class arbitration.  Fantastic Sams Franchise Corp. v. FSRO Assoc. Ltd., __ F.3d __, 2012 WL 2402560 (1st Cir....


Who Decides Whether Statute of Limitations in Arbitration Clause Is Too Short?

By Liz Kramer | June 26 2012

Validity of Arbitration Agreement Arbitration agreements may shorten the statute of limitations that would otherwise be available for claims -- but only to a point.  A recent opinion from the First Circuit shows that how a plaintiff frames its argument that the contractual limitations period is unreasonably short can make a difference not only on...


West Virginia Won’t Back Down On Arbitration Decision

By Liz Kramer | June 21 2012

Validity of Arbitration Agreement The saga of Brown v. Genesis Healthcare Corporation continues.  Almost exactly a year ago, the West Virginia Supreme Court declared that arbitration agreements in pre-dispute nursing home contracts were unenforceable.  Then in February SCOTUS reversed that decision and remanded the case for consideration of...


Plaintiff Finds You Can Beat City Hall (in arbitration)

By Liz Kramer | June 13 2012

Appealing Arbitration Decisions, Scope of Arbitration Agreement While a court may vacate an arbitration award if the arbitrator exceeds the scope of his authority, the City of Lebanon was unable to convince the Supreme Court of New Hampshire that an arbitrator exceeded his authority when siding against the City in a tax dispute. The plaintiff in Lebanon Hanger Assoc. v....


The Best New Argument For Compelling Arbitration = Rent-A-Center + the AAA Rules

By Liz Kramer | June 5 2012

Arbitration Rules/Procedures, Validity of Arbitration Agreement To date, courts have largely limited the impact of the Rent-A-Center decision to arbitration agreements with explicit delegation clauses. But, what if Rent-A-Center applied to every single arbitration agreement that mentioned the AAA rules?  That is a very real possibility, and one which would send almost all...