Arbitration, Mediation & Alternate Dispute Resolution

Arbitration is of course a creature of contract, and so a party may not be compelled to arbitrate unless it has agreed, or is deemed to have agreed, to arbitrate a dispute. An offeree may be deemed to have manifested its agreement to an arbitration regime by various sorts of conduct, including in some instances inaction in the face of notice.

Litigators in the U.S. often take for granted the ease with which they can obtain discovery from non-parties in our federal and state courts. One might assume that the “presumption in favor of arbitrability” embodied in the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (“FAA”), would have been implemented with, among other things, a statutory grant of subpoena power to arbitrators that is virtually coextensive with that of a federal district court. 

What makes an on-line arbitration agreement binding against a website user? In Meyer v. Uber Technologies, Inc., 2017 U.S. App. LEXIS 15497 (2d Cir. Aug. 17, 2017), the U.S. Court of Appeals for the Second Circuit issued a second decision on this issue, providing additional elucidation following its 2016 decision in Nicosia v. Amazon, Inc. 834 F.3d 220 (2d Cir. Aug. 24, 2016).

Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in your commercial contract are critical.

When is “silence” in an arbitration clause concerning class arbitration not “Stolt-Nielsen silence”? And what is the difference between a “claim” and a “procedure”? The Ninth Circuit seemingly took hair-splitting to a new level in conceiving the former question, and apparently suffered some uncertainty regarding the latter, when it issued its memorandum decision in Varela v. Lamps Plus, Inc., No. 16-56085 (Aug. 3, 2017).

In a recent series of articles, we asked whether “class arbitration” -- meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding -- is ultimately viable. Given the nature of arbitration, we suggested that it arguably is not.

Do you ever have days when you are not your most eloquent self, the words come out in a jumble, or they are just not precisely what you intended? So do trial judges. But appeals courts seem to understand.

When a claimant who is party to an arbitration agreement initiates litigation of arbitrable claims, the defendant in that case typically expects to be able to move successfully to compel arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4.

Forum non conveniens is one of several judicial abstention doctrines, applied from time to time by U.S. courts, that permit a court to dismiss (without prejudice) a plenary action in its discretion. In a forum non conveniens case, the court’s jurisdiction is not in question, but the relative legal “inconvenience” of having the matter heard in that court, as opposed to another court of competent jurisdiction, is deemed sufficient for the U.S. court to abstain from exercising its authority.

We recently began a series of articles in which we ask whether “class arbitration” — meaning the utilization of a Federal Rule of Civil Procedure 23 class action protocol in an arbitration proceeding — is ultimately viable, considering arbitration’s essential nature, or is it an oxymoron? Here, we examine several elements of the current law, muddled as it is, regarding class arbitration.

For nearly thirty years, federal and state appellate courts have been split on the issue of whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, November 15, 1965 (“Hague Service Convention” or “Convention”), permits service of process by mail.

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., does not contain an express preemption provision, nor was it intended to be the exclusive codified arbitration law in all circumstances. However, the United States Supreme Court has repeatedly taught that where the FAA applies, it is deemed to supersede state laws that are inconsistent with its provisions and purposes.

In most countries, it is uncontroversial that a court sitting at the situs of an arbitration has jurisdiction to adjudicate a petition to confirm or vacate or modify an award issued in that arbitration. In the United States federal courts, however, the mix of issues concerning subject matter jurisdiction and personal jurisdiction, respectively, has made for bewilderment galore.

We recently began a series of articles in which we ask: Is “class arbitration” viable given the essential nature of arbitration, or is it an oxymoron? (The premise here is that “class arbitration” signifies the utilization of a Federal Rule of Civil Procedure 23 class action protocol in an arbitration proceeding.) In this article, we examine possible bases for the viability of class arbitration. Spoiler alert: they do not hold up to scrutiny.

“Class arbitration” -- the utilization of a class action mechanism in an arbitration proceeding -- is considered by some to be the unicorn of ADR; desirable but elusive. Another view is that it is the Frankenstein’s monster of ADR – an anomalous hybrid of disparate parts that comprise a disconcerting and ultimately nonviable creation.

In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2017 U.S. App. LEXIS 3815 (2d Cir. Mar. 2, 2017), the U.S. Court of Appeals for the Second Circuit provides something of a primer regarding enforcement in the United States of a foreign-issued arbitral award, which is subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and Chapter 2 of the Federal Arbitration Act (“FAA”).

Last month, we described the split among Federal Circuit Courts regarding the question of whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 3, mandates a stay rather than dismissal of a judicial proceeding after a district court compels arbitration of all of the claims in an action before it.

In an earlier post we provided advice on how to interpret the words “may” and “must” when they appear in arbitration clauses that are to be interpreted under U.S. law. Among other things, we explained that an arbitration clause that says that a party “may” submit a dispute to binding arbitration will be viewed as mandatory in U.S. courts if any party chooses to arbitrate.

Federal public policy favors arbitration and the broad interpretation and enforcement of arbitration agreements. So how can an arbitration agreement be held by a court to be void as against public policy? One answer from a state court (in circumstances where the Federal Arbitration Act did not apply) is that toying with a statutory arbitration scheme could do the trick.

You presented your case, and the arbitration tribunal came back with a reasoned decision and an award in your favor. You even had the award confirmed here in the United States. You want to enforce it. But you find that the award-debtor’s assets are all held in or have been moved to a country that is not a party to the New York Convention. Now what?