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The article explores the issue of whether a unanimous award by a three-arbitrator tribunal should be vacated if one arbitrator is found to have bias in Canada, the U.S., and under the ICSID Convention. The standard for partiality varies across jurisdictions, with Canada requiring a reasonable apprehension of bias, the U.S. Ninth and Eleventh Circuits adopting a similar approach, and the U.S. First, Second, Third, Fourth, Fifth, and Sixth Circuits requiring a finding of actual bias. The article provides practice tips for arbitrators to avoid the risk of vacatur if a co-arbitrator is biased, emphasizing transparency, independent decision-making, and maintaining records of time spent on deliberations. [Extracted from the article]

The Ninth Circuit recently affirmed a district court's decision that an appellant's motion to vacate an arbitration award was untimely in the case of Next Level Ventures, LLC v. Avid Holdings, Ltd. The appellant, Avid Holdings, sought to challenge the arbitration award of $892,020.25, but the court found that the motion was filed more than three months after the award was delivered, as required by the Federal Arbitration Act. The court also dismissed Avid Holdings' claims of conspiracy and equitable tolling, emphasizing the importance of adhering to the FAA's three-month deadline for challenging arbitration awards. [Extracted from the article]

The article "ADR in the Ongoing Experiment of American Law" explores the historical use of arbitration in early American legal disputes. Early Americans turned to arbitration as a cheaper, more efficient, and just alternative to litigation, drawing from Enlightenment Era legal theories and Christian principles. Legal reformers in states like Massachusetts, Kentucky, and New Jersey experimented with arbitration to resolve disputes sensibly and justly, adapting English Common Law to suit their unique circumstances. The article highlights the innovative and experimental nature of early American law, emphasizing the importance of improving legal processes over time to promote justice and community harmony. [Extracted from the article]

The article discusses a case in which the Second Circuit determined that it had jurisdiction to reverse a district court decision declining to enjoin an arbitration. The dispute was between The Resource Group International Limited (TRGI), a Bermuda corporation, and its former chairman, concerning certain investments. The Second Circuit found that it had jurisdiction based on a forum selection clause in amendments to the governing agreement, which referenced New York state law. The court remanded the case back to the district court to determine the scope of the subsequent agreement and consider which claims were arbitrable. [Extracted from the article]

In a recent decision, the Second Circuit ruled that a lawsuit brought by former employees of Four Seasons Hotels and Resorts regarding a COVID-related furlough was not subject to arbitration. The employees claimed that the hotel violated the federal Worker Adjustment and Retraining Notification (WARN) Act and its state counterpart when they were indefinitely furloughed at the start of the pandemic. The court found that the terms of the employment agreements did not extend arbitration to permanent layoffs, and specifically excluded disputes regarding permanent layoffs from arbitration. This decision highlights the importance of clear and specific language in arbitration agreements. [Extracted from the article]

The Supreme Court is asked to determine, when parties enter into an arbitration agreement with a clause delegating the power to an arbitrator to determine if a dispute is arbitrable, whether an arbitrator or a court should decide if the arbitration agreement was narrowed by a later contract that is silent as to arbitration and delegation. [ABSTRACT FROM AUTHOR]

The article discusses a recent case in the Second Circuit where a bank's attempt to update its contract's terms and conditions through mailed updates was found insufficient to establish contractual assent to the changes in the arbitration provisions. The customer had filed a class action lawsuit against the bank and the bank sought to compel arbitration. The district court denied the motion, citing the lack of an opt-out opportunity for customers. The Second Circuit affirmed the denial, finding that the customer had not received clear notice of being bound by the arbitration provision. The court highlighted misleading language in the update, the absence of opt-out provisions, and confusion regarding whether the update was a new agreement or an amendment. This case serves as a reminder of the issues to consider when updating agreements through general notices. [Extracted from the article]

This article discusses strategies and challenges in navigating a timed arbitration. The author shares their experience as plaintiff's counsel in a trade secrets case that was set for a jury trial but later agreed to be submitted to a single arbitrator. The parties agreed on various rules, including time limits for opening statements and witness examinations, as well as the use of witness statements instead of live testimony. The article emphasizes the importance of staying flexible and considering alternative dispute resolution to meet client goals. It also provides tips on using opening statements effectively, submitting authentic witness statements, helping expert witnesses understand their role, researching the arbitrator's prior cases, and using the post-hearing brief to tie all the evidence together. [Extracted from the article]

The article discusses the possibility of including an optional appellate arbitration process in arbitration clauses. Traditionally, arbitration awards are final and can only be challenged on limited grounds. However, the American Arbitration Association's Optional Appellate Arbitration Rules provide a mechanism for correcting errors in arbitration awards. The benefits of including an optional appellate arbitration process include a standardized process, clear grounds for appealing an award, managed time frames and lower costs compared to court appeals, and a knowledgeable panel with significant appellate experience. The AAA Appellate Arbitration Process is still relatively new, but data suggests that appellate panels are not simply rubber-stamping the original awards. Overall, the optional appellate arbitration process offers a way to maintain the efficiency of arbitration while providing an avenue for error correction. [Extracted from the article]

The Supreme Court recently ruled unanimously that when a district court compels claims to arbitration, it is required to stay the case rather than dismiss it outright. This decision is important for parties seeking to compel arbitration, as they often seek dismissal of the case. The case in question, Smith v. Spizzirri, involved claims of violations of employment laws. The district court initially dismissed the case, but the Supreme Court reversed this decision, stating that the text, structure, and purpose of the Federal Arbitration Act all point to the conclusion that a court does not have the discretion to dismiss a suit when arbitration is requested. [Extracted from the article]

JAMS, a dispute resolution organization, has announced the creation of new mass arbitration rules and procedures. These guidelines are intended to facilitate the fair and efficient resolution of mass arbitrations, which involve 75 or more similar demands for arbitration filed against the same or related party. The new procedures include filing requirements for claimants and the use of a process administrator to handle administrative matters. JAMS has also updated its fee schedule to address common complaints about the mass arbitration process, such as high upfront filing fees. [Extracted from the article]

Codified Laws § 21-25A-2YesYesSouth Dakota permits family law arbitration under its UAA which includes no reference to family law arbitration; there is no case law on family law arbitration.TNNoNoNoTenn. §§ 5/501-5/519 (Marriage and Dissolution of Marriage Act)YesYes, but judicial review is broadIllinois permits family law arbitration under its UAA; substantive law of its Dissolution of Marriage Act should be applied in family law arbitration.INYesNoNoInd. Code §§ 6-6-1 to 6-6-16YesYesAlabama permits family law arbitration under its unique Arbitration Act, which includes no reference to family law arbitration; there is no case law on family law arbitration.AKYes (agreements made before 1/1/ 2005)Yes (all other agreements)NoAlaska Stat. §§ 16108-201 to 16-108-230YesYesArkansas' Arbitration Act includes no reference to family law arbitration, and there is no case law on family law arbitration.CANoNoNoCal. [Extracted from the article]

RESOURCES CAROLYN MORAN ZACK, FAMILY LAW ARBITRATION: PRACTICE, PROCEDURE, AND FORMS (ABA, 2020) Audrey J. Beeson, Arbitration: A Promising Avenue for Resolving Family Law Cases? Courts that hear family law disputes are often underfunded, understaffed, backlogged due to COVID-19, and lack judges with training about the unique aspects of family law, especially child custody. Child-Related Arbitration Although a few states have excluded child custody and support from the permissible scope of arbitration, others allow it as long as there is judicial review of the arbitration award to protect the child's best interests. As early as 1992, both the American Bar Association's Family Law Quarterly and the Family Advocate, as well as the American Academy of Matrimonial Lawyers (AAML) touted the benefits of family law arbitration. [Extracted from the article]

Employees must become aware of their new rights under the FAA, case law must be developed as employers challenge the carveout, and employees must decide if litigation or arbitration is best suited for resolving their sexual harassment and assault claims. Notably, the Act's effective date is March 22, 2022, meaning that perhaps millions of existing employee arbitration agreements now contain voidable provisions purportedly mandating arbitration for sexual harassment and assault cases. An often-cited data point is that sixty million employees, more than 50 percent of all nonunion private sector employees, are subject to arbitration agreements in their employment. [Extracted from the article]

The Supreme Court is being asked to decide whether workers actively engaged in interstate commerce must also be employed by a company in the “transportation industry” for their employment disputes to be exempt from the Federal Arbitration Act. The exemption covers seamen, railroad employees, and any other workers engaged in foreign or interstate commerce. [ABSTRACT FROM AUTHOR]

The article discusses recent legal developments in Mexico. It highlights the publication of the new General Law of Alternative Dispute Resolution Mechanisms, which aims to strengthen negotiation, mediation, and arbitration procedures as alternatives to lengthy lawsuits. The law also allows ongoing lawsuits against the government to utilize these mechanisms. Additionally, amendments to the Federal Labor Law and the Social Security Law have been made to ensure the rights of farmworkers, including fair wages, access to information about working conditions, and medical assistance. Finally, new provisions have been issued regarding the renewal of registration for specialized service providers. [Extracted from the article]

This article discusses the issue of anti-arbitration injunctions in international commercial arbitration. It explains that anti-arbitration injunctions are legal measures used to prevent parties from commencing or continuing arbitration proceedings. The article focuses on the recent ruling by the Bombay High Court in India, which restrained the enforcement of an anti-enforcement injunction granted by the Singapore High Court. The court found that the dispute in question was non-arbitrable under Indian law and that the arbitration proceedings would violate public policy. The article also explores the position of UK and US courts on anti-arbitration injunctions and discusses the implications of the Bombay High Court's ruling in the Indian legal landscape. The authors express their belief that the case will be appealed and that appellate courts will provide further clarity on the issue. [Extracted from the article]

The article titled "The Lawyer As Mediator and Arbitrator... Featuring Ryan Abbott" is part of a series that aims to highlight the diverse roles lawyers can hold. The article focuses on Ryan Abbott, a mediator and arbitrator, and provides insights into his role and the field of alternative dispute resolution (ADR). Abbott explains that as a neutral, he helps parties resolve disputes through mediation or arbitration, which are often simpler, faster, cheaper, and more private than traditional litigation. The article also discusses the history of mediation and arbitration, the ease of entry into the field, the workload and pay scale, and offers advice for those interested in pursuing a career in ADR. [Extracted from the article]

In a recent case, the Delaware Court of Chancery found companies in contempt for failing to comply with an order to advance expenses to the petitioner. The court denied the companies' subsequent motion to dismiss in favor of arbitration, stating that it was waived due to their delay. The court emphasized that traditional collection methods would not be sufficient in this case, as the petitioner would suffer irreparable harm if the companies did not pay. Additionally, the court held that an arbitration provision cannot deprive the court of subject matter jurisdiction over an action to enforce an advancement provision in a limited partnership agreement. [Extracted from the article]

The article "Fighting Mass Arbitration" presents an empirical study of arbitration clauses in 106 large consumer-facing companies, revealing various tactics used to handle mass arbitration cases. Companies implement pre-arbitration procedures, batching protocols, and mandatory settlement conferences to manage mass arbitration. These strategies have implications for claimants, as they may face delays and increased complexity in seeking relief, potentially transforming arbitration beyond the scope of the Federal Arbitration Act. The article suggests that state governments should consider regulating mass arbitration to prevent companies from using it to avoid accountability. [Extracted from the article]

The U.S. courts are a favored forum around the world, and parties often try to litigate foreign disputes in the U.S. courts by bringing claims under the Racketeer Influenced and Corrupt Organizations (RICO) Act. Whether the plaintiff has suffered a “domestic injury” is key to whether a RICO claim arising out of foreign conduct is justiciable in the U.S. federal system. In Smagin, the U.S. Supreme Court will further clarify what constitutes a “domestic injury.” [ABSTRACT FROM AUTHOR]

Flexibility Parties to an arbitration can play a larger part in determining how and when that arbitration will occur than they would in a court setting (where an assigned judge can hand down deadlines and sua sponte rulings). Efficiency and Cost Perhaps the most-cited difference between arbitration and standard litigation is that arbitration tends to be more efficient than pursuing a claim in court. Parties to an arbitration must pay for the arbitrator's time, which can add up-particularly in a complex or lengthy arbitration or when there is a panel of three arbitrators. [Extracted from the article]

As in Coinbase, if the district court concludes that the arbitration provision is unenforceable and a section 16(a) appeal is taken, class-based proceedings must be deferred until the appeal is decided. By a closely divided decision in Coinbase, Inc. v. Bielski, No. 22-105 (U.S. June 23, 2023), the U.S. Supreme Court filled the congressional void, holding that all district court proceedings must be stayed during a section 16(a) appeal. [Extracted from the article]

The court concluded that these allegations plausibly pled a claim of sexual harassment under the NYCHRL and that the EFAA therefore barred arbitration of that claim. It was not until Everyrealm moved to compel arbitration under their respective employment agreements that Yost and Johnson then added sexual harassment claims to their respective cases and sought to preclude arbitration under the EFAA. Because Johnson had a plausibly pled a claim of harassment, the pre-dispute arbitration agreement was unenforceable with respect to the entire case relating to that dispute, and the whole case remained in court. [Extracted from the article]

A litigation mindset annoys your arbitrator and can deprive your client of the benefits of arbitration. In most arbitrations, you have only two personal contacts with the arbitrator, the preliminary hearing at which a schedule will be set and any unusual issues discussed, and the hearing on the merits. However, if the case is complex and detailed post-hearing briefing is expected, transcripts are helpful in writing the briefs and helpful to the arbitrator or arbitrators. Feel free to ask where your witness should sit if it is not clear, how the arbitrator likes to be addressed (unless the arbitrator is a retired judge-then always "Your Honor"), when and how long breaks and lunch will be, etc. [Extracted from the article]

Given that most States do not have experience in investor-State mediation and may only have limited developed formal mediation processes for commercial disputes within their domestic legal systems, a significant amount of work would have to be undertaken in respect of investor-State mediation. The current study therefore explores the use of court-connected negotiation, mediation, and litigation in the Singapore Family Justice Courts. The findings show that a majority of mediators in both civil and family cases say that they themselves have the most influence on how the mediation begins, and many mediators say that they often or always begin the first mediation session in the same way throughout their mediation practice. [Extracted from the article]

Removing and Replacing an Arbitrator Administrators also assist if an arbitrator must be removed from a case and replaced with a new decision-maker. Because the arbitrator, not the administrator, determines the claim's outcome, the arbitrator must decide whether the case moves forward and whether a sanction is warranted. If the arbitrator withdraws on their own volition, or if both parties ask the arbitrator to withdraw, the administrator can promptly appoint a replacement in accordance with its rules. Arbitration is private adjudication-an alternative to court. [Extracted from the article]

Further, the 2019 Hague Rules on Business and Human Rights Arbitration provide for arbitration of disputes related to the impact of business activities on human rights. Considering that the goal of arbitration is to achieve outcomes that will be recognized and enforced, applying some ESG-related rules in arbitration may seem imperative. This is worth noting because criticisms against investment arbitration procedures have the potential to spill over into commercial arbitration,[12] and improvements in investment arbitration procedures could lead to similar improvements in commercial arbitration. The idea of considering environmental, social, and corporate governance (ESG) criteria in corporate decision-making is not a soft-law concept irrelevant to arbitration. [Extracted from the article]

Coinbase users sued the corporation for various violations of state and federal law. Coinbase moved to compel arbitration pursuant to the arbitration clause in its User Agreement, but the district courts rejected the motions. Coinbase appealed under a provision of the Federal Arbitration Act. The corporation also moved to stay the proceedings in the district courts pending the outcome of its appeals. But the courts denied those motions, too. This case involves those denials. [ABSTRACT FROM AUTHOR]