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December 2020
12/01

Med-Arb: Is It the Wave of the Future?

The pressure on the Alternate Dispute Resolution world to handle what I believe will be a dramatic increase in volume offers the opportunity to consider a third or hybrid process of dispute resolution known as Med-Arb, the melding of the two established conflict resolution processes – mediation and arbitration.

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November 2020
11/30

Arbitration in the Mix Regarding Mining Dispute in Zambia

Reuters reported that Zambia’s state mining arm ZCCM-IH plans to appeal a court ruling in favor of India-based Vedanta, which has sought arbitration in a dispute over its jointly owned copper mine that is facing liquidation. Vedanta and the Zambian government have been involved in protracted disputes, with arbitration in the mix.

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11/24

Tesla Owner's Bid to Avoid Arbitration in Battery Dispute Fails

The Ninth Circuit Court of Appeals has dashed a Tesla owner’s plea to avoid arbitration regarding a battery dispute. Prior, a trial court ruled that Tesla Inc. can compel several used-car buyers to individually arbitrate claims that it overstates the battery life of some pre-owned electric vehicles wasn’t a final. The owners tried to appeal this but the Ninth Circuit ruled that this was not an appealable order. "The appeals court, therefore, lacks jurisdiction, the panel said."

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A Rare Occurrence: California Court Overturns Arbitrator's Award
Employers should review their NDA agreements to ensure the definition of “confidential information” is not so broad that it become a restraint on practicing a chosen profession, trade or business

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11/10

What law governs your arbitration clause? You decide.

It will probably surprise you to hear that this is an issue that has vexed the courts and commentators, in England and internationally, for many years.

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Arbitration agreements: Governing law

United Kingdom November 6 2020 - Clarification has recently been given by the Supreme Court in Enka v Chubb Russia [2020] UKSC 38, on the principles to be applied to determine the proper law of an arbitration agreement, in particular where the governing law of the contract differs from the law of the seat of the arbitration.

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11/03

One more reason to arbitrate: BC's new Arbitration Act

Arbitration has become an increasingly popular method for resolving legal disputes traditionally dealt with through the court system. Arbitration is known to be far more efficient and capable of delivering final results to litigants.

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October 2020
10/27

London Court of International Arbitration (LCIA) Issues New Arbitration Rules

The London Court of International Arbitration (LCIA) issued its new arbitration and mediation rules on Oct. 1, 2020. These rules will apply to all arbitrations commenced after said date unless the arbitration agreement indicates something different. The LCIA is one of the most prestigious and important arbitral institutions in the world, and an option to consider in any dispute.

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Updates to ICC Arbitration Rules Aim for More Efficient, Flexible and Accountable Arbitrations

On October 6, 2020, the International Court of Arbitration to the International Chamber of Commerce (ICC) adopted updates to its Rules of Arbitration, which will come into force on January 1, 2021. Among other things, the 2021 ICC Rules shall provide greater efficiency and flexibility in arbitrations held under the 2021 ICC Rules.

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10/20

Which country's laws govern an arbitration agreement?

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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Challenges And Opportunities Of Virtual Hearings In International Arbitration

COVID-19 social distancing measures and travel restrictions have particularly affected certain aspects of arbitral proceedings.

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To Hold Police Accountable, Ax the Arbitrators

Communities should have the power to fire abusive officers. But that power often rests with an obscure group of unelected labor arbitrators.

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10/13

English Supreme Court decides approach to determining governing law of arbitration agreement
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 38, which is likely to become the leading English law authority on the applicable principles relating to determining the proper law of an arbitration agreement and the role of the courts of the seat in granting anti-suit relief.

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Virtual Reality Of Arbitration Hearings

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 appearances are made difficult by travel constraints.

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September 2020
9/22

Affirmed: “Cluttered” Website Means No Agreement To Arbitrate

Clean up that website!! “Clutter” may obscure and negate attempts to highlight terms and conditions that require arbitration of Telephone Consumer Protection Act (TCPA) disputes. A “hard to find [link to Ts & Cs] on a cluttered web page” can be a recipe for such a result.

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Court-Ordered Non-binding Arbitration: A Way to Move Your Case Forward During COVID

This article explores an alternative for civil trial attorneys to utilize court-ordered, nonbinding arbitration to move a case forward during COVID-19 restrictions.

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9/15

Whether And How To Compel Remote Arbitration

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.

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New Jersey Arbitration Agreements Need Not Designate a Specific Arbitrator or “Arbitral Forum” to be Enforceable
In Flanzman v. Jenny Craig, Inc., the New Jersey Supreme Court reversed the Appellate Division and held that an arbitration agreement may bind the parties even if the agreement does not designate a specific arbitrator, arbitration organization, or process for such a designation. read more

 

Here’s why pandemic is increasing mediation and arbitration cases

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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9/08

New Jersey High Court Updates State’s Arbitration Case Law to Reflect Modern Business Practice

For the second time in a little over one month, the Supreme Court of New Jersey has issued an employer-friendly ruling upholding the enforceability of arbitration agreements in the employment context.

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9/01

Internet terms of use: Ninth Circuit enforces arbitration agreement accessible through browsewrap hyperlink

Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An Internet consumer must, at a minimum, be on inquiry notice of terms to be bound by them.

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New Jersey High Court Updates State’s Arbitration Case Law to Reflect Modern Business Practice

For the second time in a little over one month, the Supreme Court of New Jersey has issued an employer-friendly ruling upholding the enforceability of arbitration agreements in the employment context.

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August 2020
8/25

ADR Solutions for a World Reordered By Pandemic – Remote Is Closer Than You Think

The clearest lesson of the pandemic is that we are all connected. Supply chains and the movement of goods and people by air, land and water mean we are all part of a huge interactive web.

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8/24

Feuding Business Partners in Private Companies: Considering Arbitration to Resolve Partnership Disputes

It is common for private company co-owners to have disagreements while they operate their business, but they typically work through these disputes themselves. In those rare instances where conflicts escalate and legal action is required, business partners have two options—filing a lawsuit or participating in an arbitration proceeding. Arbitration is available, however, only if the parties agreed in advance to arbitrate their disputes.

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N.D. Illinois Denies Broker’s Attempt to Block Zoom Arbitration Hearing
The Northern District of Illinois recently denied a broker’s motion for a temporary restraining order and a preliminary injunction against the Financial Industry Regulatory Authority (FINRA) seeking to stop a scheduled remote arbitration hearing.

 

NJ Supreme Court Finds Employee Assented to Arbitration by Continuing Her Employment

In its August 18, 2020 opinion in the case of Amy Skuse v. Pfizer, Inc., the New Jersey Supreme Court enforced an employer’s arbitration agreement, finding that the plaintiff employee had effectively assented to arbitration by continuing her employment in the face of the employer’s announcement of a new arbitration policy.

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8/04

U.S. judge denies claims Uber won price-fixing suit because arbitrator was scared

A U.S. judge denied a request by an Uber customer to overturn an arbitration win for the company in a price-fixing case over claims the arbitrator only ruled in Uber’s favor because he was scared.

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Climate Change Disputes Take Center Stage at Paris Arbitration Week

There is increasing awareness about the interconnected nature of climate-related issues such as biodiversity loss, health, human rights, security and inequality. Indeed, climate change disputes are on the rise, and the International Bar Association (the “IBA”), in its 2014 report (Achieving Justice and Human Rights in an Era of Climate Disruption), called for the immediate creation of an international ad hoc arbitral body specifically for environmental litigation and the eventual establishment of an International Court for the Environment.

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July 2020
7/28

These Furloughed Workers Must Sign Arbitration Agreements To Get Their Jobs Back

The situation at The Container Store underscores how little leverage workers have during a global pandemic with sky-high unemployment.

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FINRA Extends Postponement of In-Person Arbitration and Mediation Hearings

Due to the COVID-19 epidemic, FINRA has extended the postponement of all in-person arbitration and mediation hearings scheduled through September 4, 2020. Parties may opt to proceed telephonically or by Zoom or panels may order that that the hearings will take place telephonically or by Zoom.

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7/21

Issue of Applicability of 28 U.S.C. §1782 to Private International Commercial Arbitrations Is Ripe for Supreme Court’s Review After Second Circuit Decision

A four-circuit split and the recent history of the Supreme Court taking on arbitration issues suggests that the Supreme Court will decide next term if Section 1782 is applicable in aid of private international commercial arbitration proceedings.

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Arbitration: An Effective Means to an End during COVID-19

Depending on the case and contract that is subject of the dispute, arbitration may be a requirement. Of course, those parties to the contract can ultimately waive that requirement or come up with some variant of their mutual choosing. Conversely, in matters absent an arbitration provision in a contract, the parties can voluntarily agree to go to arbitration.

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Avoiding Formation Challenges To Your Arbitration Clause With Consumers

In this third installment, we look at what companies should be doing to ensure that they can present proof of their arbitration agreements if ever required to do so in court. Your company may have a perfect arbitration clause, but if a customer claims never to have signed the arbitration agreement or not to have seen the website providing notice of the terms and conditions, you will have to present evidence that the customer is wrong.

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Maricopa County Superior Court Announces Certified Arbitrator Program in Response to COVID-19

In response to the COVID-19 public health emergency, the Maricopa County Superior Court recently announced its Certified Arbitrator Program. The program is the result of various studies focused on making court operations more efficient and responsive to litigants in this unique time.

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Pennsylvania’s binding arbitration law stunting police reform, officials say

Philadelphia Police Commissioner Danielle Outlaw agreed that police arbitrators wield too much power and often stunt the department’s attempts to fire bad cops.

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New Jersey Supreme Court Confirms Enforceability of Employment Arbitration Agreements With Class Action Waivers Exempted Under FAA

The decision is not only a watershed victory for businesses that employ or engage transportation workers who fall within the Section 1 exemption, but all businesses that employ or engage workers in New Jersey. The decision highlights the enormous value of an effective arbitration program and illustrates why businesses that do not already have arbitration agreements with their workers may want to carefully consider obtaining them.

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7/14

Divorce Law During A Pandemic: The Rise Of Arbitration

The focus of this blog is on arbitration and its potential role in resolving disputes where the parties have engaged in efforts to settle (often involving considerable time, emotion, and......expense) and have been unable to get the agreement across the finish line.

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Determining Whether “Clickwrap Agreement” Provides “Reasonable Notice” of an Arbitration Agreement Is a Fact-Intensive Inquiry

In sum, the “inquiry whether a web user had ‘reasonable notice’ of contract terms contained in a contract accessible by hyperlink depends on the ‘totality of the circumstances.'”

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FAA doesn't preempt NY law barring mandatory arbitration of bias claims - judge

A New York state judge has ruled that sexual harassment claims by LVMH Moet Hennessy Louis Vuitton Inc’s vice president of legal affairs are not “economic in nature,” so the luxury goods retailer cannot force her lawsuit into arbitration.

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No Initials, No Problem: California Court Of Appeal Holds Failure to Initial Not Enough To Prevent Arbitration

“What if neither party to an arbitration agreement places initials next to a jury waiver contained in the agreement, even though the drafter included lines for their initials?”

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Top Canadian Court Confirms that the Mandatory Arbitration Clause in Uber’s Driver Contracts is Unenforceable

Uber Technologies Inc. v. Heller, 2020 SCC 16, a recent Supreme Court of Canada decision may have significant implications for individuals working in the gig economy, as well as for employers with mandatory arbitration or forum selection clauses in their contracts for service.

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Corporations, Congress Must Examine Arbitration and Racism

Despite public statements from much of corporate America condemning racial injustice, many companies such as Starbucks, Amazon, many NFL teams, and Tesla require their workers to arbitrate claims of racial discrimination.

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7/07

How forced arbitration can hurt Black and brown workers

The Economic Policy Institute finds that 65% of companies with more than 1,000 employees have mandatory arbitration procedures — meaning workers must settle employment disputes through a private mediation system, out of the public eye. The practice that garnered criticism during the #MeToo movement for concealing patterns of sexual harassment in the workplace is again under fire for making it harder for employees to hold employers accountable for racial discrimination.

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A Guide To Drafting Enforceable Arbitration Clauses

Many businesses choose to include arbitration clauses in their agreements with their customers, vendors or employees. They do so because, as data increasingly shows, arbitration is on average a significantly faster and cheaper means of resolving a dispute in a confidential, flexible and expert manner. And, as courthouses have closed during the coronavirus pandemic, arbitration has become, in many jurisdictions, the only ongoing means of resolving disputes.

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Heller v Uber: The Supreme Court finds arbitration clause unconscionable and establishes new test for determining when to stay litigation in favour of arbitration

Heller develops arbitration and contract law in three important ways: It provides guidance on whether domestic or international arbitration legislation applies; It develops the competence-competence principle; and It restates the doctrine of unconscionability.

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Fundamentals|An Overview on International Arbitration

There are three major methods of international dispute resolution; namely international arbitration, international commercial litigation, and alternative dispute resolution (ADR). Among these, arbitration is the most popular way of resolving cross-border disputes between states, companies, and individuals.

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How Mediation Firm JAMS Became the Dominant Player in the LA Market

An international business, JAMS is considered the dominant company in Los Angeles and the nation when it comes to private mediation and arbitration services.

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June 2020
6/30

Black workers matter, so end forced arbitration

As employment lawyers who have devoted our careers to fighting discrimination in the workplace, we are heartened to see the world awaken to systemic and structural racism after the egregious killings of George Floyd, Ahmaud Arbery and Breonna Taylor.

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Supreme Court of Canada Finds Arbitration Clause to Be “Uber” Unconscionable

On June 26, 2020, the Supreme Court of Canada (SCC) released its decision in Uber Technologies Inc. v. Heller. The SCC ruled in favour of the plaintiff, allowing him to proceed with a class-action lawsuit in Ontario courts, rather than through a foreign arbitration.

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Questions To Ask When Changing Your Arbitration Clause

In a prior post, we highlighted some questions that companies may want to ask when evaluating whether their arbitration clauses are enforceable. If changes need to be made to those clauses, then companies should consider how to implement those changes so as to ensure those are enforceable too.

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Arbitration News

Med-Arb: Is It the Wave of the Future?The pressure on the Alternate Dispute Resolution world to handle what I believe will be a dramatic increase in volume offers the opportunity to consider a third or hybrid process of dispute resolution known as ...more
Arbitration in the Mix Regarding Mining Dispute in Zambia Reuters reported that Zambia’s state mining arm ZCCM-IH plans to appeal a court ruling in favor of India-based Vedanta, which has sought arbitration in a dispute over its jointly owned copper mine that is facing liquidation. Vedanta and th ...more
Tesla Owner's Bid to Avoid Arbitration in Battery Dispute Fails The Ninth Circuit Court of Appeals has dashed a Tesla owner’s plea to avoid arbitration regarding a battery dispute. Prior, a trial court ruled that Tesla I ...more
A Rare Occurrence: California Court Overturns Arbitrator's AwardEmployers should review their NDA agreem ...more
What law governs your arbitration clause? You decide. It will probably surprise you to hear that this is an issue that has vexed the courts and commentators, in England and internationally, for many years. ...more
Arbitration agreements: Governing law United Kingdom November 6 2020 - Clarification has recently been given by the Supreme Court in Enka v Chubb Russia [2020] UKSC 38, on the principles to be applied to determine the proper law of an arbit ...more
One more reason to arbitrate: BC's new Arbitration Act Arbitration has become an increasingly popular method for resolving legal disputes traditionally dealt with through the court system. Arbitration is known to be far more efficient and c ...more
London Court of International Arbitration (LCIA) Issues New Arbitration Rules The London Court of International Arbitration (LCIA) issued its new arbitration and mediation rules on Oct. 1, 2020. These rules will apply to all arbitrations commenced after ...more
Updates to ICC Arbitration Rules Aim for More Efficient, Flexible and Accountable Arbitrations On October 6, 2020, the International Court of Arbitration to the International Chamber of Commerce (ICC) adopted updates to its Rules of Arbitra ...more
Which country's laws govern an arbitration agreement?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? ...more