Featured Arbitration Blog Posts

Beth Graham

Arbitrating Antitrust Claims: From Suspicion to Trust

(9/12/15)Beth Graham

Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust”. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.

Beth Graham

Reasoned Awards in International Commercial Arbitration

(9/04/15)Beth Graham

University of Missouri School of Law Professor S.I. Strong has written “Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy,” 37 Michigan Journal of International Law, 2016, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2015-18. In her publication, Professor Strong analyzes the requirement for reasoned awards in the context of international commercial arbitration.

Lara Pair

What’s Next? – Practical Ponderings on Arbitrators and Overturned Jurisdictional Awards

(9/04/15)Lara Pair

There are a number of questions that influence how arbitration treats cases in which an award is challenged successfully. A court overturns an award declining jurisdiction, but what’s next? The easy answer, and certainly the practical one is for the arbitrator to resume the case and render an award on the merits.

Beth Graham

Patent Arbitration: It Still Makes Good Sense

(8/21/15)Beth Graham

Peter Michaelson, Michaelson ADR Chambers, LLC, has published “Patent Arbitration: It Still Makes Good Sense,” Landslide (Journal of the ABA Section of Intellectual Property Law); July/August 2015, pp. 42-47. In his paper, Mr. Michaelson examines the future of patent arbitration following the implementation of the Leahy-Smith America Invents Act.

F. Peter Phillips

Colin J. Wall Memorial

(8/07/15)F. Peter Phillips

The death of Colin J. Wall on July 16, 2015, is a crushing blow to our profession and a personal loss to me.

Lynn Duryee

Make the Most of Your Mediation: The Single-Family Construction Defect Case

(7/30/15)Lynn Duryee

How can you economically and effectively settle the single-family construction defect case? In a recent mediation involving a homeowner, contractor and 15 subs, the participants used the following practices, which resulted in 16 signed settlements at the end of one day.

Missourri Declares it Unconscionable for NFL Commissioner to Arbitrate Employment Dispute

(6/12/15)Beth Graham, Liz Kramer

Disputing would like to invite you to check out Liz Kramer’s recent blog post entitled “Missouri Declares It Unconscionable For NFL Commissioner to Arbitrate Employment Dispute.” In her blog post, Ms. Kramer examines two significant arbitration decisions that were recently issued by the Supreme Court of Missouri.

Michael Moffitt

A Maddening Nevada Supreme Court Case

(6/06/15)Michael Moffitt

Three days ago, the Nevada Supreme Court released an opinion in the case of Weddell v. Sharp et al. (Here). Although it has facts that would make ADR & Civ Pro professors fairly swoon, the opinion itself is maddening. Both the majority and the dissent.

Art Hinshaw

Asking Tough Questions About Mandatory Arbitration and Article III

(6/01/15)Art Hinshaw

Our good friend Jean Sternlight (UNLV) sends along her opinions on Sharif, one of last week’s Supreme Court cases and how it impacts the Federal Arbitration Act.

Jack Wright Nelson

Waiving the Right to Arbitrate in the United States: Should the Prejudice Requirement be Discarded?

(5/22/15)Jack Wright Nelson

The Sixth Circuit Court of Appeals recently ordered a fund management committee (‘SBC’) to arbitrate its dispute with Navistar International (‘Navistar’) – at Navistar’s request – despite the fact that Navistar refused SBC’s own request for arbitration, ignored SBC’s formal notice of arbitration, and then litigated SBC’s claim in court for over a year.

Katherine Graham

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

(5/15/15)Katherine Graham

Judith Resnik, Arthur Liman Professor of Law at Yale Law School, has published “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights,” 124 Yale Law Journal 2015. In her article, Professor Resnik provides a different perspective regarding the effect recent Supreme Court precedent pertaining to class waivers has had on arbitration in the United States.

Gary Direnfeld

Differentiating Between Mediation, Med/Arb and Parenting Coordination

(5/15/15)Gary Direnfeld

There are only so many options available for separated parents to settle their parenting disputes in a way that minimizes lawyer involvement. Chief among them are: Mediation; Mediation/Arbitration (Med/Arb); and Parenting Coordination.

Beth Graham

Fundamentally Unfair: An Empirical Analysis of Social Media Arbitration Clauses

(5/08/15)Beth Graham

Our systematic examination of 329 of the world’s largest social media providers reveals that 29 percent of these providers require users to submit to predispute mandatory arbitration as a condition of using their services.

Richard Birke

Federal Arbitration Case Update | Bound and Determined

(5/01/15)Richard Birke

APMM contracted with Noatex to build a building and Noatex subcontracted with King. When Noatex deemed King’s work inadequate, King filed a stop work notice and informed APMM that Noatex owed King $260,000. This matter resulted in APMM’s interpleading the money while the federal court in Mississippi figured out who was entitled to what.

Michael Moffitt

Whisper, "Here's My Contact Information; Don't Accept Anything Until We've Talked."

(4/24/15)Michael Moffitt

In this morning’s Chronicle of Higher Education, an article entitled “Time to Change the Rules of Negotiation,” focusing on entry-level employment negotiations, what’s negotiable, what’s reasonable, and what’s not.

Beth Graham

Fifth Circuit Rules Arbitrator Exceeded His Authority in Contract Dispute

(4/17/15)Beth Graham

The United States Court of Appeals for the Fifth Circuit has held that an arbitrator exceeded his authority in a contract dispute. In PoolRe Insurance Corp. v. Organizational Strategies Inc., No. 14-20433, Organizational Strategies Inc. (“OSI”) entered into a contract with Capstone Associated Services to create a new captive insurance program.

Joe Markowitz

Thirteen Days in September

(3/31/15)Joe Markowitz

Speaking of peace in the Middle East, I've been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu's recent re-election is that resolution of the issues in the territories is now a long ways off.

Susan Yates

Family Law Arbitration Act

(3/31/15)Susan Yates

People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?

Beth Graham

Texas Legislature Considers Measure that Would Require Out-of-Network Emergency Room Providers to Arbitrate Payment Claims

(3/21/15)Beth Graham

A bill seeking to establish an arbitration process designed to protect patients who are treated by an out-of-network provider during an emergency room visit from being hit with hefty medical charges is currently before the Texas Legislature. House Bill 1638, “Relating to nonpreferred provider claims under a preferred provider benefit plan related to emergency care,” was introduced by Representative Smithee and filed on February 19, 2015. An accompanying proposal was introduced in the Texas Senate on March 12th by Senator Taylor of Galveston.

Sarah Cole

Blurred Lines: Non-attorneys Representing Parties in Arbitration

(3/13/15)Sarah Cole

As an arbitrator and teacher of arbitration, I’ve noticed that legal issues are more frequently the focus in arbitration proceedings, both non-labor and labor. I have watched non-lawyer representatives struggle to make legal arguments (although, in fairness, sometimes that is true of lawyers as well). To ensure adequate representation of parties in arbitration involving legal issues, I believe that the parties should be represented by counsel, and that failure to have counsel (rather than non-lawyer representatives) in such proceedings may well be the unauthorized practice of law.

Jill Gross

SEC Approves FINRA Proposal to Further Revise Definition of Public and Non-Public Arbitrator

(3/06/15)Jill Gross

The SEC approved FINRA’s proposal to ” refine and reorganize the definitions of ‘non-public’ arbitrator and ‘public’ arbitrator.” Customers who file an arbitration claim against a broker dealer or associated person now has the right to an all-public arbitration panel, so the definitions of who fits the two classifications are high stakes.

Beth Graham

Amarillo COA Overturns Order Holding Arbitration Provision is Unconscionable in Cotton Marketing Pool Dispute

(3/06/15)Beth Graham

Texas’ Seventh District Court of Appeals in Amarillo has overturned a Cochran County court’s order refusing to compel a cotton-marketing dispute to arbitration. In Ecom USA, Inc. v. Clark, No. 07-14-00240-CV (February 25, 2015), a group of cotton farmers agreed to deliver any crops grown in 2010 and 2011 to a marketing pool that was owned and administered by Ecom USA, Inc.

Richard Chernick

First Things First: Design the Arbitration Process You Want

(3/06/15)Richard Chernick

The principles for drafting a pre-dispute arbitration clause are straightforward. They do require an understanding of the legal relationship, which will be the subject of the clause, some sense of the nature of disputes that are likely to arise and a basic understanding of arbitration process.

Sarah Cole

Further Thoughts on Armstrong Arbitration Award

(2/27/15)Sarah Cole

Lance Armstrong was named the winner of the Tour de France in 2002, 2003, and 2004. When Armstrong won in 2004, considerable speculation existed regarding whether he had won cleanly. SCA Promotions, the prize insurer, was reluctant to pay the prize money given the speculation, and ultimately SCA, Armstrong, and Tailwind Sports arbitrated the case.

Beth Graham

To Publish, or Not to Publish Arbitral Awards: That is the Question

(2/06/15)Beth Graham

Einer R. Elhauge, Petrie Professor of Law at the Harvard Law School, has authored “To Publish, or Not to Publish Arbitral Awards: That is the Question…,” 81 International Journal of Arbitration, Mediation and Dispute Management, Number 1, 2015. In his research paper, Professor Elhauge examines some potential pros and cons of establishing a publication mechanism for international commercial arbitral awards.

Beth Graham

Privatizing Mass Settlement

(1/30/15)Beth Graham

University of Georgia School of Law Assistant Professor Jaime Dodge has published “Privatizing Mass Settlement,” 90 Notre Dame L. Rev. 335 (2014); UGA Legal Studies Research Paper No. 2015-2. In her scholarly article, Professor Dodge examines privatized bilateral mass settlement as an alternative to both arbitration and multi-district litigation.

Beth Graham

Fifth Circuit Reverses Course in Construction Defect Case

(1/23/15)Beth Graham

The Fifth Circuit Court of Appeals has reversed its prior decision affirming summary judgment in favor of an insurance company that refused to pay an arbitral award in a construction defect case. In Crownover v. Mid-Continent Casualty Co., No. 11-10166, a Texas couple, the Crownovers, initiated arbitration against the company that built their defective home, Arrow. After an arbitrator ruled in favor of the homeowners, the builder filed for bankruptcy protection. The couple next sought to recover damages from Arrow’s insurance company.

Alfred Siwy

Fees of the Successfully Challenged Arbitrator?

(1/16/15)Alfred Siwy

In its decision of 17.2.2014, the Austrian Supreme Court decided on a claimant’s request for reimbursement of the portion of the fees advanced to the arbitrator whom it had successfully challenged during ongoing proceedings and on his liability for frustrated costs caused by the challenge and the appointment of a new arbitrator.

Paul Kirgis

On Forced Arbitration

(1/09/15)Paul Kirgis

Over the past year or so, critics of consumer and employment arbitration have coined a new term for what ADR scholars have historically called mandatory pre-dispute arbitration: “forced arbitration.”

Beth Graham

The Year of Arbitrator Authority

(1/02/15)Beth Graham

Liz Kramer at Arbitration Nation has compiled a thorough year in review of arbitration cases decided on a variety of topics in 2014. Her blog post, entitled “2014: The Year of Arbitrator Authority,” addresses state and federal court decisions on validity, formation, preemption, vacatur, and, of course, arbitrator authority.

Emmanuel Chua

A New Dawn for Mediation?

(1/02/15)Emmanuel Chua

The Singapore International Mediation Centre (“SIMC”) was officially launched on 5 November 2014. Set up following the recommendations of a Working Group chaired by Edwin Glasgow CBE QC and George Lim SC, the SIMC will supplement the array of international dispute resolution options available in Singapore.

Beth Graham

Non-Judicial Means of Collective Redress in Europe

(12/19/14)Beth Graham

S.I. Strong, Associate Professor at the University of Missouri School of Law, has published a book chapter entitled Non-Judicial Means of Collective Redress in Europe in Collective Redress in Europe (Oxford University Press, anticipated 2015); University of Missouri School of Law Legal Studies Research Paper No. 2014-29. In her book chapter, Professor Strong analyzes large-scale arbitration and other non-judicial avenues for collective redress in Europe.

Beth Graham

Arbitration Trends in 2014

(12/05/14)Beth Graham

A survey recently conducted by Today’s General Counsel asked in-house attorneys about their thoughts on arbitration. The results published in Arbitration Trends 2014 indicate that nearly half of lawyers surveyed normally choose arbitration over traditional litigation because it is required by contract. In addition, 38 percent stated they select arbitration because it is less expensive than litigating a case and the process preserves confidentiality.

Margaret Moses

The Growth of Arbitrator Power to Control Counsel Conduct

(11/14/14)Margaret Moses

There have been increasing calls over the past few years for an international code of conduct for counsel in international commercial arbitration, and for arbitrators to have more power to control counsel conduct. The growing concern is related to significant changes that have taken place in international arbitration practice.

Richard Levie

Eight Tips on How to Impress Your Arbitrator

(10/24/14)Richard Levie

While the most successful way to impress your arbitrator is with the merits of your case, there are smaller, but important, ways to create a favorable impression of yourself and your client’s case. This article is one arbitrator’s guide to creating an arbitral environment favorable to you and your client.

Elizabeth Kantor

The Consolidation Arbitrator – An Arbitrator Too Far?

(10/24/14)Elizabeth Kantor

Whilst many institutional rules now contain provisions which expressly address the complex issue of consolidation, the recently revised rules of the International Centre for Dispute Resolution (the “ICDR”), the international arm of the American Arbitration Association (the “AAA”), are the first to have introduced the novel concept of the “consolidation arbitrator”.

Beth Graham

Amarillo COA Holds Arbitration is Required in Construction Fee Dispute

(10/04/14)Beth Graham

In January 2013, several of the subcontractors (“Scottco”) filed a lawsuit against Journeyman to recover payment for services rendered pursuant to their respective subcontracting agreements. Journeyman responded by filing a motion to abate the court proceedings and compel arbitration. After the district court denied Journeyman’s motion, the general contractor filed an interlocutory appeal with the Amarillo appeals court.

Beth Graham

Dallas COA Affirms Arbitral Award Despite Evident Partiality Claims

(9/26/14)Beth Graham

The Fifth District Court of Appeals of Texas in Dallas has affirmed a trial court’s order confirming an arbitral award in a dispute between a residential builder and several homeowners. In Meritage Homes of Texas, L.L.C. v. Ruan, No. 05-13-00831-CV (Tex. App. – Dallas, September 16, 2014) a group of individuals who bought newly built homes from Meritage allegedly learned that their houses were smaller than the square footage that was represented to them prior to purchase.

Beth Graham

New AAA Consumer Arbitration Rules are Now in Effect

(9/19/14)Beth Graham

On September 1st, new American Arbitration Association (AAA) Consumer Arbitration Rules went into effect. The 55 new rules reportedly replaced the eight Consumer-Related Disputes Supplementary Procedures that previously applied to consumer arbitrations filed with the organization. The new rules apply to all arbitral cases filed after September 1, 2014

Kim Taylor

The ADR Provisions of EU Privacy Laws

(9/19/14)Kim Taylor

Companies doing business globally have a variety of complex issues to deal with, not the least of which is concern about the security of personal data collected from their customers.

Beth Graham

Texas Supreme Court Agrees to Decide Whether Construction Dispute Should be Arbitrated

(9/05/14)Beth Graham

The Supreme Court of Texas has agreed to review whether an arbitration clause applies to a construction dispute between a developer, a builder, an architectural firm, and others. In G.T. Leach Builders, L.L.C. v. Sapphire VP, LP, No. 13-0497, a condominium complex was destroyed by a hurricane while still under construction. Prior to the hurricane, the builder, G.T. Leach, apparently allowed its insurance coverage to lapse. As a result, the builder lacked sufficient funds to rebuild the condominium project or make the owner whole again. In response, the developer, Sapphire, filed a lawsuit for breach of contract and negligence in Cameron County against the builder.

Jill Gross

Hat Trick: NHL Adds Arbitration Clause

(8/22/14)Jill Gross

Little did I know that I was on NHL.com’s email list. I guess having a son wild about all things hockey must have had something to do with it. So you can imagine my surprise on Saturday morning when I woke up to an email from NHL.com informing me of the new arbitration clause it was adding.

Art Hinshaw

Sternlight – New Executive Order Blocks Mandatory Employment Arbitration

(8/08/14)Art Hinshaw

FOI Jean Sternlight (UNLV) provides us with this guest post on the President’s recent actions on employment arbitration.

Gunther Horvath

Compensation for a Dismissed Arbitrator?

(8/08/14)Gunther Horvath

The Austrian Supreme Court (OGH) confirmed that an arbitrator who is dismissed during the arbitration by a state court because of conflict of interest before the award is rendered may recover compensation for (useful) services rendered until dismissal.

Jill Gross

FINRA Appoints New Arbitration Task Force

(7/18/14)Jill Gross

FINRA announced today the formation of a new Arbitration Task Force “to consider possible enhancements to its arbitration forum to improve the transparency, impartiality and efficiency of FINRA’s securities arbitration forum for all participants.”

Kim Taylor

Arbitrator Selection

(6/30/14)Kim Taylor

Much has been written in recent years about whether arbitration has lived up to its billing as a “better, faster, cheaper” alternative to litigation. No matter one’s views about this, litigation is undoubtedly very costly, and wise counsel must look for ways to reduce unnecessary costs and time delays.

Richard Chernick

A Primer on Arbitrability

(6/20/14)Richard Chernick

Drafters of arbitration clauses must understand the concept of arbitrability if the parties’ objectives are to be achieved. Arbitrability is the portmanteau for several distinct concepts.

Beth Graham

U.S. Supreme Court Asked to Consider Scope of Nursing Home Arbitration Agreements

(6/20/14)Beth Graham

The United States Supreme Court was recently asked to consider whether an arbitration agreement precludes a wrongful death claim in a nursing home dispute. In Pisano v. Extendicare, the heirs of a man who passed away in 2011 while in the care of a Pennsylvania nursing home filed a lawsuit against the facility seeking damages for his alleged personal injuries and wrongful death. When the man was initially admitted to the skilled nursing facility, however, his daughter signed an agreement to arbitrate any future disputes with the institution.

F. Peter Phillips

Arbitration as a Means of Avoiding Class Actions

(6/13/14)F. Peter Phillips

In AT&T Mobility v. Concepcion, the Supreme Court held that a waiver of class action that was part of an arbitration clause in a consumer contract was enforceable despite state law to the contrary. Subsequently, in Oxford Health Plans v. Sutton, it upheld an arbitrator’s ruling that a class action could be sustained in a commercial arbitration agreement, because the arbitrator’s finding had drawn its essence from interpretation of the arbitration agreement itself.

Elina Mereminskaya

Results of the Survey on the Use of Soft Law Instruments in International Arbitration

(6/06/14)Elina Mereminskaya

Between February and March 2014, the Survey on the Use of Soft Law Instruments in International Arbitration was open for responses here at Kluwer Arbitration Blog. The users were asked to report on their real-live encounters. The question was whether the respondents had invoked, used or applied one of those concepts or instruments when acting as lawyers or arbitrators in international proceedings.

Beth Graham

Taming the Wild West of Arbitration Ethics

(4/04/14)Beth Graham

Kristen Blankley, Assistant Professor at the University of Nebraska College of Law has authored an interesting article entitled Taming the Wild West of Arbitration Ethics, Kansas Law Review, Forthcoming. In her article, Professor Blankley examines legal ethics in the arbitral forum.