Arbitration practitioners and neutrals alike are familiar with the abundant case law setting a high bar for losing parties seeking to avoid enforcement of a foreign arbitration award under the New York Convention. In a case argued before the Second Circuit Court of Appeals on February 16, 2024, one member of the three-judge panel invoked the words of Don Corleone in The Godfather to underscore that users of arbitration must accept the result of the dispute resolution process that they …
CCA Blogs
Section 3 of the Federal Arbitration Act: Why it’s important
While hunkering down and avoiding freezing weather, the Aardvark* came across an important arbitration case where the Supreme Court granted certiorari on January 12 of this year on the following issue: Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration. Section 3 references staying the court proceeding, but many …
Guiding the Way Through A.I. in Arbitration
Artificial intelligence (“A.I.”) is the hot topic of the day. A.I. holds the potential to dramatically change our lives - for better or worse - as it rapidly develops and is implemented in new ways. A.I. is already used by parties, counsel, experts and Arbitrators for tasks ranging from selecting arbitrators, to analyzing documents, to researching the law, to [oh no!] drafting briefs, orders and awards. Sometimes the generated results are painfully wrong, producing so-called hallucinations, …
Select Your Decision Maker! (Part II)
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 …
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 …
