The Aardvark* commented in the initial installment of its “Select Your Decision Maker” post that the principal advantage of commercial arbitration is party autonomy and self-determination, as best illustrated by the disputants’ ability to select the person who will hear and decide their dispute. As part of its continuing “debunkery” mission to set the record straight about the advantages that commercial arbitration offers over litigation, the Aardvark asks and answers the following two …
CCA Blogs
Arbitration as a Settlement tool after Impasse in Mediation
Can a hand-tailored ad hoc arbitration be used to resolve an impasse in mediation? Mediations is often successful in clarifying and resolving some of the disagreements between the parties, but after 90% of the work is done, an impasse may arise that threatens to derail the prospects of settlement. Mediators have shared many ideas about how to overcome such impasses, however, less frequently considered is the use of an arbitration to resolve the limited issues that are preventing …
Appeals Court Swats Party Who Cheated in Arbitration
A CCA Blog: The Aardvark* It has been a while since you heard from me, but a recent case caught my attention. In Nuvasive, Inc. v. Absolute Medical, LLC, No.22-10214, the 11th Circuit affirmed a district court’s decision to overturn an arbitration award more than three months after the statutory deadline to challenge the award. It turned out that one of the respondents was coaching the witness who was testifying by video conference, by …
SCOTUS Requires Stay of Proceedings Pending Interlocutory Appeals of Orders Denying Arbitration
Section 16(a) of the Federal Arbitration Act (“FAA”) authorizes an interlocutory appeal from a federal district court order denying a motion to compel arbitration. On Friday, June 23, 2023, a sharply-divided U.S. Supreme Court ruled in Coinbase, Inc. v. Abraham Bielski (No. 22–105) that if such an interlocutory appeal is filed, the order denying the motion to compel arbitration must be stayed pending the outcome of the appeal. The practical effect of the ruling in Coinbase is that a party’s …
Select Your Dispute Decision-Maker!
Commercial arbitration offers disputants distinct advantages that are not available in court. The principal one is party autonomy and self-determination. Nothing illustrates that concept better than the disputants’ ability in commercial arbitration to select the person who will hear and decide their dispute. Litigants who resort to the courts for dispute resolution cannot select the judge who will hear the action. Judges are generally randomly selected upon the filing of the …
US Arbitration Subpoenas Have Nationwide Scope!
I hardly come out of my burrow,* and then only at night, so I was pretty interested to hear about a recent federal appellate decision holding that arbitration subpoenas in the US have nationwide scope. That’s the outcome in Jones Day v. Orrick, 42 F. 4th 1131 (9th Cir. 2022), a recent decision regarding an arbitration between two big law firms. The Ninth Circuit ruled that arbitration subpoenas have nationwide scope. So what’s this all about? Well, we all know that …
Arbitration is Efficient! US Supreme Court Rejects Foreign Discovery Requests in International Arbitration
A CCA Blog: The Aardvark* My friends on the US Supreme Court unanimously agreed this week that parties in foreign arbitrations cannot ask US courts for discovery. The Supreme Court’s opinion in ZF Automotive US, Inc., et al. v. Luxshare, Ltd., and AlixPartners, LLP, et al. v. Fund for Protection of Investors' Rights in Foreign States (June 13, 2022) settled a dispute among the US Circuits over whether 28 USC 1782, a statute providing for foreign court assistance, applied in …
The Many Good Things About Commercial Arbitration
Recently, the Washington Post published a story that referenced the concept of “negative memories.” The story noted that humans tend to notice the negative more than the positive and are more likely to remember negative experiences versus the positive. This story resonated with me, primarily because I have recently received reports or examples of public criticism of the arbitration process. For example, the Miami Dolphins NFL football team demanded claims by former coach Brian …
CCA Fellows Know About Mockingbirds and Other important Things
Fellows of the College of Commercial Arbitrators are knowledgeable and highly skilled, and that arbitration parties and their advocates routinely entrust College Fellows with their most important disputes. A recent public report of an arbitration award issued by College Fellow Richard H. Silberberg provides a case in point. We are all familiar with the famous novel, To Kill a Mockingbird, written by Harper Lee, which was developed into an Academy Award-winning motion picture starring …
The Floodgates Have Opened: Mass Arbitrations
A series of U.S. Supreme Court decisions have all but eliminated class arbitrations for consumers, employees, franchisees, and others with common claims against a single company. The latest, decisive blow came in Lamps Plus, Inc. v. Varela, 587 U.S. __, 203 L. Ed. 2d 636 (2019), with the Court holding that arbitration on a classwide basis could not be compelled based on an arbitration agreement’s ambiguous language. Most arbitration agreements include a waiver of class arbitrations; …