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

Hawaii Finds Arbitration Agreement With “Severe Limitations on Discovery” is Unconscionable

By Liz Kramer | June 19 2015

Validity of Arbitration Agreement Hawaii issued a bold arbitration decision this month. It applied its state contract law to conclude that the parties did not form a clear arbitration agreement, but even if they did, it was unconscionable because it prohibited both discovery and punitive damages.  Narayan v. The Ritz-Carlton Dev. Co., Inc., __...



A Modest Proposal: Change the Name of Arbitration

By Liz Kramer | June 12 2015

Uncategorized Arbitration has a brand recognition problem. Not enough people know what it is. The recent CFPB report summarized studies showing that even among consumers who know they have an arbitration clause, the majority do not realize they cannot go to court or have their claims decided by a jury. One explanation is...



Missouri Declares It Unconscionable For NFL Commissioner to Arbitrate Employment Dispute

By Liz Kramer | June 5 2015

Validity of Arbitration Agreement The Supreme Court of Missouri has issued two significant arbitration decisions in recent weeks, showing its willingness to sever any aspects of an arbitration agreement that it finds unconscionable (while enforcing the overall obligation to arbitrate). First, in a contentious decision, the Supreme Court of...



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....


Glorious spring

Spring Vacations: Which arguments are winning on appeals from arbitration so far in 2015?

By Liz Kramer | May 21 2015

Appealing Arbitration Decisions Today I present a collection of recent state and federal appellate court decisions that vacate or un-vacate arbitration awards. The seven opinions below emphasize how difficult it is to prove that an arbitrator exceeded his or her power and suggest that the surest way to vacate an arbitration award is still by...


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Fifth Circuit Finds Parties Can Authorize Arbitrators By Their Conduct

By Liz Kramer | May 12 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Scope of Arbitration Agreement The Fifth Circuit un-vacated an arbitration award last week, holding the district court had wrongly concluded that the court was the proper decision-maker on contract formation.  Although courts are presumptively authorized to decide whether an arbitration agreement exists, the Fifth Circuit found the parties...



When Can A Party Recover Attorneys’ Fees Incurred Confirming An Arbitration Award?

By Liz Kramer | May 7 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Scope of Arbitration Agreement If you won your arbitration, it is vexing to have to spend many thousands more in attorneys' fees opposing a motion to vacate the arbitration award.  (That is especially true if you signed up for arbitration thinking it was faster and avoided appeals.)  But, can you ask the court to award you the attorneys' fees...


Sands of time

Three State Courts Hold Timeliness Of Claim Is Issue For Arbitrator

By Liz Kramer | April 22 2015

Litigation vs. Arbitration In March, the highest courts of Montana, Texas, and Wisconsin all held that, when parties have a valid arbitration agreement, the issue of whether an arbitration demand was timely is presumptively for the arbitrator to decide.  That principle of law has been established under the FAA at least since the Howsam...


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....


bean counter accounting banking concept

6th Circuit Holds that Accountants Conducting Financial Arbitration Can Also Make Legal Determinations

By Liz Kramer | April 8 2015

Scope of Arbitration Agreement, Waiver of Right to Arbitrate A new case from the Sixth Circuit addresses whether accountants who are resolving a dispute about payments made under an agreement can also make legal determinations about the same agreement. In a 2-1 decision, the Sixth Circuit held that the scope of the dispute clause is broad enough to allow the accountants...