Dispute Resolution Journal

Doing Our Part

Three years ago the AAA formulated an initiative aimed at testing an alternative to the regular commercial fee schedule. One of the main things they learned is that cost is a major concern for many ADR users. As the current business environment remains fragile at best, cost concerns are even more acute. Therefore, effective June 1, the AAA launched a "Pilot Flexible Fee Schedule" that is available to all customers who file arbitration cases in the following areas: commercial, construction, in...

Supreme Court Finds Employee Right to Sue Under Adea Can Be Bargained Away by Union

A divided US Supreme Court has ruled that an express agreement to arbitrate statutory claims in a collective bargaining agreement is enforceable absent an explicit ban on waivers of the right to bring an action in court in the statute under which a claim was being made. In 14 Penn Plaza & Temco Service Industries v Steven Pyett, the Court found no explicit prohibition in the Age Discrimination in Employment Act (ADEA) on waivers of the right to sue. Accordingly, it ruled that a collective...

Changes to the Aaa Commercial Rules

High Court Oks 'Look Thru' for Fed'l Q Jurisdiction

The US Supreme Court ruled on March 9, by a 4:3 majority that district courts are authorized to "look through" to the contents of the underlying claims to be arbitrated when determining whether they have "federal question jurisdiction" to hear a motion to compel arbitration under Section 4 of the Federal Arbitration Act. The opinion in Betty E. Vaden v Discover Bank resolved a split between the 1st, 4th and 11th Circuits, which favored the look-through approach, and the 2nd, 5th, 6th and 7th ...

Supreme Court Holds Faa Allows Non-Signatories to Appeal

In a decision dated May 4, 2009, a divided US Supreme Court held that non-signatories to an arbitration agreement may appeal the denial of a motion to stay litigation under Section 16(a)(1)(A) of the Federal Arbitration Act (FAA). The ruling in Arthur Andersen v Wayne Carlisle reversed a decision by the 6th Circuit. The Court concluded that Section 16(a)(1)(A) clearly and unambiguously states that any litigant who petitions for a stay under Section 3 is entitled to an immediate appeal of the ...

Supreme Court to Review Class Arbitration Under Faa

On Jun 15, 2009, the US Supreme Court agreed to review an international maritime case, Stolt-Nielson SA v AnimalFeeds International Inc, in which an arbitral panel formed under the American Arbitration Association's Supplementary Rules for Class Arbitration (AAA Class Arbitration Rules) concluded that arbitration clauses in maritime contracts that are silent on the issue of class arbitration permit class arbitration. After a ruling by the 2nd Circuit, the parties entered into an agreement to ...

Report On Litigation's Problems Urges Court-Annexed Mediation

The final report on problems with the civil justice system, prepared by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the Legal System (IALS), urges courts to raise the possibility of mediating all or part of a case when appropriate and order the parties to engage in mediation, unless both sides say "no." The recommendations are the results of a survey of over 1,300 IALS members who responded to a questionnaire designed to determine whe...

Courts Continue to Wrestle with Class Arbitration

Sanctions Allowed for Bad Faith in Arbitration Despite 'American Rule'

Tear Down This Wall! The Case for the Non-Lawyer Employment Arbitrator

Some alternative dispute resolution providers prefer to admit only attorneys and retired judges to their rosters of employment arbitrators. One provider's Web site encourages experienced legal professionals to apply for admission to its panel. Most non-lawyer arbitrators will tell you the same thing about their discouraging experience in seeking to be listed on an arbitration provider's employment panel. Notwithstanding the current obstacles faced by qualified non-lawyer arbitrators, it is im...

Setting Aside N.Y. Convention Awards Made in the U.S.

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) directly addresses the grounds for refusing to recognize an award, but it deals only elliptically in Article V(1)(e) with the grounds for a court at the place of arbitration to set aside an award. Article V(1)(e) provides that recognition and enforcement may be refused if the award has been "set aside or suspended by a competent authority of the country in which, or under the law ...

What's New in European Arbitration?

Four arbitration awards issued in proceedings conducted under the Rules of the International Court of Commercial Arbitration at the Chamber of Trade and Industry of the Russian Federation have been declared enforceable by the Amsterdam Court of Appeal, notwithstanding their previous annulment by Russian state courts. The awards required the Russian company Yuganskneftegaz to repay Yukos Capital, a Luxembourg limited liability company, monies due under four loan agreements that had been entere...

New Study Shows How Adr Is Perceived by French Business Execs

Anew study of the attitudes of French business executives shows that alternative dispute resolution (ADR) has made some inroads into the business world in France. "Dispute-Wise Business Management-Vers un management optimise des litiges" was presented on June 16 at an ADR conference in Paris, sponsored by the American Arbitration Association (AAA) and FIDAL, a French business law firm. The study was done by Isabelle Vaugon, head of the ADR/Arbitration/Litigation Department of FIDAL, and AAA S...

What's New in Latin American Adr?

In two decisions decided last year, the commercial courts of Argentina have strengthened the reassuring stance that a judicial proceeding to annul an arbitration award cannot be brought for the purpose of reviewing a case on the merits where the right to bring an appeal has been expressly waived by the parties. Article 25 of Peru's General Law of Expropriation provides for the possibility that an individual whose property is subject to expropriation by the State could decide to submit to arbi...

Aaa Adds 15 New Directors

At the American Arbitration Association's (AAA) annual meeting on May 7, 2009, 15 new directors were elected to the AAA board. The newly elected members of the board include domestic and international arbitration practitioners, former judges and political appointees, including: 1. Makhdoom Ali Khan, senior counsel at Fazleghani Advocates in Karachi, Pakistan, 2. Susan Davis, partner at Cohen Weiss & Simon LLP in New York, 3. Joseph Garrison, founder of Garrison Levin-Epstein Chimes Richar...

Human Rights Meets Investor-State Arbitration

A new report examines the intersection of human rights and international investment arbitration, examining the role that human rights should play. The report was written by Luke Eric Peterson for Rights & Democracy, a nonpartisan independent Canadian institution. According to Peterson, human rights interests are "on the line" in international investment arbitration, the mechanism in many bilateral investment treaties to protect foreign investors from arbitrary treatment by the host state....

Unconscionability Challenge to Icc Fee Fails

Supreme Court Addresses Volt's Choice-of-Law Trap: Is the End of the Problem in Sight?

Many contracts with arbitration provisions contain choice-of-law clauses specifying which state's law governs the contract. Attorneys drafting these clauses typically consider the chosen state's substantive law, not its arbitration procedures -- which often differ from those of the Federal Arbitration Act (FAA), a statute enacted in 1925 to enforce arbitration agreements and preempt state laws that are hostile to arbitration. But during the last 20 years, some drafters of arbitration agreemen...

Due Diligence in Arbitrator Selection: Using Interviews and Written 'Voir Dire'

Trial lawyers have helped create a cottage industry of jury consultants who, for considerable fees, assist them in identifying jurors who have either an inherent bias against certain matters or a leaning in favor of others. "Voir dire" is the name of the process of questioning prospective jurors to determine if they should be disqualified either for bias or for another reason using one of counsel's peremptory challenges. If lawyers could engage in this process to select the judge hearing the ...

Five Steps to Fast-Track the Large, Complex Construction Case

Construction arbitration is supposed to be efficient, economical, and result in a fair decision by experts in construction and/or construction law. Yet, many arbitrations fall short of achieving the first two goals. Experience demonstrates that there are valid reasons for frustration over the time and expense of construction arbitration. The purpose of this article is to suggest some techniques to help restore the efficiency and economy of construction arbitrations. While every technique will...

The Myth of the Mediator As Settlement Broker

Many commercial mediators see settling cases as their primary role. One result of the focus on settling cases is that they lose sight of the many other services they provide while mediating a case. These services receive little or no attention in mediator training programs because of the emphasis on "closing the deal." Yet these services establish the groundwork for the possibility of settlement. This article discusses these services so mediators can appreciate that they are more than just se...

Aaa Handbooks

Untapped Potential: Creating a Systematic Model for Mediation Preparation

Most experienced practitioners prepare their client for mediation, but not systematically. A systematic approach to mediation preparation results in better substantive outcomes, a more efficient process, and a template for application to any kind of case. In the 1980s, Roger Fisher introduced a simple framework for negotiators to use that focused on improving substantive results without placing undue strain on the parties' relationship. The key to the Getting to Yes approach was systematic pr...

Does the Supreme Court Decision in 14 Penn Plaza Augur the Unification of the Faa and Labor Arbitration Law?

It has been the longstanding view of most federal courts that the Federal Arbitration Act (FAA) does not apply to arbitration provisions in collective bargaining agreements (CBAs). But the US Supreme Court's recent decision in 14 Penn Plaza v. Pyett suggests otherwise. The implications of the many recent Supreme Court decisions in 2008 and 2009 have yet to be fully understood. This article discusses the possible implications of the Court's ruling in 14 Penn Plaza v. Pyett on the application o...

Designing an Internal Organizational System for Conflict Management: Based On a Needs Assessment

Conflict is an integral and inevitable aspect of life, including the workplace, even within successful organizations. There could be dissatisfaction with the way an employee, manager or executive interacts with others, or a decision by management (such as to deny a promotion or discipline an employee). It is believed that the proper handling of conflicts in an organization can improve management, employee performance and morale. One of the most fascinating challenges organizations face is how...

How Labor Arbitration has Changed the Workplace Landscape in Cambodia

Labor-management arbitration is rarely used in other countries. Surprisingly, one exception is Cambodia, which, with the assistance of the International Labour Organization (ILO), implemented an impressive workplace rights program in 2002 that included collective bargaining and arbitration to resolve disputes. Cambodia has suffered from centuries of conflict and it has only recently left its chaotic past behind. Cambodia remains a largely subsistence agricultural economy still recovering from...

Brazil's Conflicting International Arbitration Case Law: The Inepar and Renault Decisions

In the February 2009-April 2009 Dispute Resolution Journal, the author reported on a conflict between a decision of the Sao Paulo Court of Appeals and the Parana Court of Appeals in Brazil that has important ramifications for international arbitration in Brazil. This article more fully discusses that conflict and the views of commentators and the possible outcome of the conflict. Details of the case, C.A. de Oliveira Andrade Comercio de Veiculos Importados et al. v Renault do Brasil S/A et al...

How to Rein in the 'Wild Wild Web'

Customary Law of the Internet: In the Search for a Supranational Cyberspace Law, by Przemyslaw Paul Polanski, is reviewed.

Imparting Mediation Lessons One Day at a Time for Seven Days

Mediation: Six Ways in Seven Days, by Hans Boserup, is reviewed.

Keeping the Peace: From Martial Arts to Verbal Arts

Making Hostile Words Harmless: A Guide to the Power of Positive Speaking for Helping Professionals and Their Clients, by Kate Cohen-Posey, is reviewed.