Weaponization of COVID-19: Faux Force Majeure Infects Labor Arbitration
The University of Akron devised a plan to layoff/fire 100 unionized faculty members (including tenured) which the union representative challenged. The arbitrator found the Covid pandemic to be within the “force majeure” clause of the union contract.
Canada - Appointing Authority’s Breach of Appointment Provisions Raise No Reasonable Apprehension of Bias
In Grey v. Whitefish Lake First Nation, Justice Cecily Y. Strickland dismissed challenges to an arbitrator’s decision, applying correctness as the standard of review for questions of procedural fairness, including those which encompass issues of bias. Despite the appointing authority’s breach of the “clear and unambiguous” regulations for appointing the arbitrator, the breach was not raised on appeal and did not affect the procedural fairness of the arbitration.
No Surprise Here: Arbitration Comes Up At Coney Barrett Confirmation Hearings
As we expected, arbitration came up at Judge Coney Barrett’s confirmation hearings. Also as expected, she declined to explain her past decisions.
The New ICC Rules 2021: What You Need to Know
The International Chamber of Commerce (ICC) has released its 2021 Arbitration Rules in draft (the 2021 Rules). This is a “soft launch” with the current text still subject to editorial changes prior to their formal release in December. The 2021 Rules will come into force on 1 January 2021.
Canada – Agreement Giving One Party Privileged Position to Designate Arbitrator Subject to “Blue-Pencil” Severance
In Caron v. 7834101 Canada Inc. (Triviom à Charlemagne), Justice Stéphane Lacoste severed a portion of an agreement to arbitrate which violated the rule against places one party in a privileged position with respect to the designation of the arbitrator. But rather than declare null the entire agreement to arbitrate, Lacoste J. struck the provision, likening the relief to the “blue-pencil” severance explained and applied in Shafron v. KRG Insurance Brokers (Western) Inc.
Does 28 USC Section 1782 Provides for Discovery in Aid of Private, Foreign, Commercial Arbitration?
Joining the Second and Fifth Circuits, the Seventh Circuit holds that 28 USC Section 1782 does not provide for discovery in aid of private, foreign, commercial arbitration. And the District of Delaware follows suit for the second time.
Seventh Circuit Holds That Foreign and International Commercial Arbitrations Do Not Receive U.S. Judicial Assistance In Discovery Under 28 U.S.C. §1782(a)
The Seventh Circuit is the latest Court of Appeals to enter the fray concerning the scope of application of 28 U.S.C. §1782(a), finding additional reasons to hold that a foreign or international commercial arbitration is not a “foreign or international tribunal” for purposes of the statute and hence not entitled to its benefits.
Two Arbitrators Address the COVID Pandemic as a Force Majuere Event
Two recent awards involve questions concerning the existence or impact of the Coronavirus as a force majeure event, potentially excusing claimed violation of the parties' agreements.
Florida Decision Involving Workers Unable to Read English Illustrates the Basics for an Enforceable Arbitration Agreement
This article discusses the case of Gustave v. SBE ENT Holdings, LLC., where the US District Court for the Southern District of Florida detailed the requirements for an enforceable employee arbitration agreement.
Canada – Court Denies Tenant Relief from Forfeiture where Tenant Disregards Arbitration
In Hunt’s Transport Limited v. Eagle Street Industrial GP Inc., Justice David A. Broad refused to exercise his discretion to grant a commercial tenant relief from forfeiture given the tenant’s refusal to abide by its obligation to continue performance during arbitration of its disputes with the landlord.
Canada – Court Acknowledges Commercial Interest in Arbitration as Alternative to Court Litigation
In Hannam v. Medicine Hat School District, Alberta’s Court of Appeal assessed the practical significance of its earlier five-judge panel decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, which considered the benefits of summary judgment. In doing so, the majority and dissent both commented on the promised benefits of arbitration in contrast to court litigation, and this article highlights the relevant passages to illustrate those contemporary comments.
Arbitration Conversation No. 26: Arbitrator Clifford Shapiro, Partner at Barnes and Thornberg, Chicago
In this episode of the Arbitration Conversation Amy interviews Arbitrator Clifford Shapiro, partner and head of the Construction Law Practice Group at Barnes & Thornberg in Chicago, about construction arbitration.
The Jury is Out on Judge Coney Barrett’s Arbitration Views, Though She Appears to Like FINRA Dispute Resolution
As expected, President Trump on September 26 nominated Judge Amy Coney Barrett of the Seventh Circuit to fill the open seat at the Supreme Court resulting from the passing of Justice Ruth Bader Ginsburg and this article focuses on the nominee’s views on arbitration based on past decisions.
Seventh Circuit Holds that Litigants cannot peition the Federal Courts to Aid 'Discovery' in International Commercial Arbitration
In Servotronics Inc. v. Rolls-Royce PLC, the Seventh Circuit joined the Second and Fifth Circuits in holding that arbitrators sitting in private commercial disputes do not qualify as “foreign or international tribunals” under 28 USC Section 1782. In reaching this result, the Court offered an interesting justification for limiting the statute’s application, which is that extending it to private foreign arbitrations would create a conflict with the Federal Arbitration Act.
Practical Tips and Techniques to Succeed in Virtual Mediation: Zooming Ahead!
This article discusses the positive aspects of online mediations and how to achieve the best results in the most effective manner. With people not able to travel or attend in-person meetings and hearings due to the COVID-19 pandemic, lawyers are turning to technology to enable them to continue to service their clients.
New Article - Examining Online Hearings in Texas
This article describes an observational study of what happened in Texas courts from March to August 2020, during which there were about 440,000 remote hearings across a variety of types of cases and proceedings. The article focuses on family court cases because they were among the first to utilize remote hearings, and since family courts face the same issues as trial courts, the findings could apply to other courts more generally.
Fifth Circuit Applies 'Look Through' Standard to Removal of Case Seeking to Vacate FINRA Award Under FAA
The Fifth Circuit holds that the District Court was correct when it applied the “look through” standard to determine that it had jurisdiction to remove a State Court action to vacate an Award.
Arbitration Conversation No. 25: Arbitrator Nicholas Gowen, partner- Burke, Warren, MacKay & Serritella
In this episode of the Arbitration Conversation Amy interviews Nicholas Gowen, a litigation partner at Burke, Warren, MacKay & Serritella in Chicago and experienced arbitrator.
Class Action Against Grindr for Selling Consumer Data Might be Forced into Individual Arbiration
A class action complaint against Grindr for alleged privacy violations may not be able to proceed in traditional court and will have to be resolved through individual arbitration, according to one of the attorneys for the complainant.
Arbitration: On Issue Of First Impression, 9th Circuit Holds Arbitration Obligations Survived Contract Termination
In Shivkov v Artex Risk Solutions the 9th Circuit held if contracts do not expressly or impliedly indicate that the termination of the agreement itself results in the expiry of the arbitration clause, then the latter survives after the termination of the former.
The 9th Circuit Rules that Commercial Arbitration Rules Also Apply to Labor Disputes
The 9th U.S. Circuit Court of Appeals in a 2-1 decision ruled that the standard for evaluating whether the courts or the arbitrators themselves must decide if commercial disputes are to be arbitrated is equally applicable in the context of labor disputes.
PLI’s 'Securities Arbitration 2020' – A New Medium, But the Same Great Content
Practising Law Institute’s (“PLI”) annual securities arbitration seminar took place via live Webcast on September 10th. Although the pandemic moved the event to a virtual-only format, the event as usual was packed with content of interest.
Troubling Trend, Another Court Declines to Enforce Arbitration Clause
The United States District Court for the Middle District of Florida in Johnson v. Westlake Portfolio Mgmt. declined to enforce an arbitration clause in a consumer dispute over the repossession of a Jeep Wrangler, in spite of federal policy favoring arbitration.
Arbitration Conversation No. 24: Hilary Mofsowitz, South African Labor and Employment Arbitrator
In this episode of the Arbitration Conversation Amy interviews Hilary Mofsowitz, a South African Labor and Employment Arbitrator with the Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa.
Private Arbitration for Business Disputes in the Time of COVID
New urgencies created by COVID, new virtual platforms that are increasingly user-friendly and real, and all the traditional reasons—an experienced arbiter, party control, efficiency, speed —make private arbitration a fine choice for businesses that have disputes during the pandemic.
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Where parties have chosen to arbitrate their disputes, but have not specified the law of the contract or arbitration agreement, what laws apply to the arbitration agreement?
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COVID-19 social distancing measures and travel restrictions have particularly affected certain aspects of arbitral proceedings.
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Communities should have the power to fire abusive officers. But that power often rests with an obscure group of unelected labor arbitrators. ...
On 9 October 2020, the English Supreme Court handed down its judgment in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC ...
Due to uncertainties created by the pandemic, virtual hearings will continue to remain the default option in particular in domestic, international and cross border proceedings, in which in-person appeara ...
Clean up that website!! “Clutter” may obscure and negate attempts to highlight terms and conditions that require arbitration of Telephone Consumer Protection Act (TCP ...
This article explores an alternative for civil trial attorneys to utilize court-ordered, nonbinding arbitr ...
This article discusses the complex issue of whether and how an arbitrator can compel parties to participate in remote arbitration hearings amid the novel coronavirus pandemic. ...
In Flanzman v. Jenny Craig, Inc., the New Jersey Supreme Court reversed the Appellate Division and held that an arbitration ag ...
According to legal experts, there is one major advantage to taking your business dispute to mediation or arbitration instead of a jury trial.
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