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 →
Arbitration Rules/Procedures The Supreme Court of Texas issued three decisions last week that all relate to arbitrator selection and offer reminders to drafters and litigators that arbitrator selection is a critical component of arbitration agreements. Two of the decisions involved tort claims against the same defendant, a cemetery owner. ...
Validity of Arbitration Agreement Do you remember the moment when you first encountered the concept of arbitrating arbitrability? Just the phrase is mind-bending! It took me a while to wrap my head around the idea that parties could separately agree to arbitrate the question of whether they really had to arbitrate. Well, here's a similar...
Validity of Arbitration Agreement The Supreme Court of Florida has moxie. It issued two new decisions the day before Thanksgiving which go out of their way to sidestep and distinguish the U.S. Supreme Court's decision in Rent-A-Center, West v. Jackson, 130 S. Ct. 2772 (2010), in order to find that nursing home residents may not be compelled to...
Uncategorized Happy Thanksgiving from Arbitration Nation! There are no new and exciting cases to talk about,* so I am reverting to the Thanksgiving staple -- talking about what I am thankful for. And, I am thankful for all of you! Starting this blog has been one of the highlights of my professional year. Not only has...
Appealing Arbitration Decisions, Litigation vs. Arbitration, Validity of Arbitration Agreement The Second Circuit just held that a federal court has the power to enjoin an ongoing arbitration. In re Am. Express Fin. Advisors Sec. Litig., ___ F.3d ___, 2011 WL 5222784 (2nd Cir. 2011). While many litigants would no doubt like a federal court to enjoin their arbitrations -- especially when arbitrators refuse...
Litigation vs. Arbitration, Uncategorized Despite the Supreme Court's best efforts, some myths of arbitration law just will not die. In yesterday's per curiam decision of the Supreme Court, the Justices tried to put a stake through the heart of a common myth: that a party may successfully avoid a motion to compel arbitration by arguing that not all claims...
Litigation vs. Arbitration, Scope of Arbitration Agreement, Waiver of Right to Arbitrate Two recent decisions illustrate how individuals that did not sign a contract can be bound by that contract's arbitration provisions. In the first, Blaustein v. Huete, 2011 WL 5103759 (5th Cir. Oct. 26, 2011), an individual member of an LLC, Huete, argued he should not be bound by the arbitration clause between...
Validity of Arbitration Agreement Just in time to participate in Arbitration Nation's (unplanned) series on legislative nullification of arbitration agreements, the Ninth Circuit Court of Appeals ruled last week that the Carmack Amendment nullifies pre-dispute arbitration agreements in interstate shipment contracts. Smallwood v. Allied Van Lines,...
Litigation vs. Arbitration, Uncategorized, Validity of Arbitration Agreement Minnesota Senator Al Franken, among others, responded to the Supreme Court’s Concepcion decision by introducing a bill called the Arbitration Fairness Act of 2011 (S.987, also in the House as H.R. 1873) last May, which would legislatively nullify arbitration provisions in various types of agreements. The Senate...
Appealing Arbitration Decisions, Arbitration Rules/Procedures The lawyers who sought to disqualify their opposing counsel during a pending arbitration must have been giddy when they drew Judge Shira Scheindlin of the Southern District of New York as their judge. Judge Scheindlin, who is famously tough on unscrupulous lawyers, did not disappoint. She went out of her way...
