Providing For De Novo Review of Award Can Invalidate The Arbitration Agreement

US Court of Appeals, 10th Circuit2018 | Febrero 26
A recent decision from the 10th Circuit shows there is a whole new way to invalidate an arbitration agreement. In Citizen Potawatomi Nation v. Oklahoma, 2018 WL 718606 (10th Cir. Feb. 6, 2018), the court found the arbitration agreement unenforceable because the parties provided for de novo review of any arbitration award in federal court, which is prohibited under the Hall Street decision from SCOTUS in 2008.
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El TC anula el arbitraje imperativo para resolver conflictos en seguros de defensa jurídica

Tribunal Constitucional España2018 | Febrero 7
La mañana del 7 de febrero se hacía pública la sentencia 1/2018 del Tribunal Constitucional en la que declaraba la inconstitucionalidad de uno de los artículos de la Ley 50/1980, sobre el contrato de seguro de defensa jurídica.

Concretamente, la sentencia declara nulo el artículo 76 e) de la citada ley, tras estimar la cuestión de inconstitucionalidad planteada por el Tribunal Superior de Justicia de Cataluña (TSJC) en octubre de 2015.
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California Supreme Court: Arbitration Agreements Must Permit Public Injunctive Relief

Tribunal Supremo California2017 | Abril 10
In a long-awaited decision, the California Supreme Court has declined to enforce an arbitration agreement due to a provision allegedly waiving plaintiff’s ability to seek “public injunctive relief” under California’s consumer protection statutes. The court’s rationale seems contrary, if not openly hostile, to the recent U.S. Supreme Court precedent enforcing such agreements under the Federal Arbitration Act (FAA).
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Arbitration Agreement Included in Samsung Product Manual Is Unenforceable, Third Circuit Rules

Unites States Court of Appeals for the Third Circuit2017 | Marzo 3
An arbitration provision for Samsung Galaxy S smartwatches is nonenforceable in a class action claiming the company exaggerated the product’s battery life, the U.S. Court of Appeals for the Third Circuit has ruled.

A stipulation mandating binding arbitration, printed on page 97 of a 143-page product manual, is not a valid contractual term because the court could not presume that consumers read or had notice of the terms, the court ruled Friday in Noble v. Samsung Electronics America. The appeals court affirmed a ruling by a federal judge in Newark that held the arbitration provision nonbinding.
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8th Circuit Expands Arbitral Immunity Doctrine

United States Court of Appeals for the Eighth Circuit2017 | Enero 11
A per curiam opinion from the 8th Circuit last week highlights that even if an arbitration goes off the rails, the only remedy is vacating (or confirming) the award.  The parties cannot recover from the administrator of the arbitration.
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Delhi High Court interprets applicability of amendments to Arbitration Act

Jurisprudencia India2017 | Enero 8
The changes made in 2015 to the Arbitration Act, under which there is no automatic stay on an award being challenged, would not apply if they affect enforceability of an award in proceedings which commenced before the amendment came into effect on October 23, 2015, the Delhi High Court has said.
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Sixth Circuit Affirms Ohio Federal Court’s Ruling Denying Motion To Compel Arbitration Because Arbitration Clause In An Expired And Disputed Contract Was Not Enforceable

U.S. Court of Appeals for the Sixth Circuit2017 | Enero 3
The Sixth Circuit, in reviewing the Ohio district court’s refusal to compel arbitration de novo, noted that an arbitration clause survives the expiration of a contract only when the dispute at issue “arises under the contract,” which occurs in two circumstances relevant to the current dispute. First, the Court stated that a dispute arises under the contract when a “majority of the material facts and occurrences” giving rise to the dispute occurred prior to the expiration of the contract at issue.
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Supreme Court Got It Right in Affirming Arbitration Award

Tribunales Connecticut2016 | Noviembre 30
The vexing problem of defining “public policy” in labor arbitration cases is becoming less vexing. As you may recall from our previous opinion on this matter, one basis for which an arbitration award may be overturned by the courts is for violating public policy. These cases become press-worthy when public sector employees are involved.
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Expert report binds parties in boundary dispute despite error

Jurisprudencia2016 | Noviembre 30
A boundary award made by a jointly commissioned expert has been upheld despite it being mistaken, the High Court has ruled.

Handing down judgment in the Queen’s Bench Division earlier this month, Mrs Justice Lang agreed with the decision of His Honour Judge Simpkiss that ‘neither party could appeal against an award merely on the basis it was mistaken’ under the law on expert determinations.
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English court upholds arbitrator’s decision to award claimant the costs of third party funding

Third party funding2016 | Octubre 3
The English court has refused a challenge under s68(2)(b) of the Arbitration Act 1996 (theAct) and held that a sole arbitrator did not exceed his powers in including the costs of third party funding within a costs award.
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Hong Kong Court orders stay to arbitration pursuant to proper steps of escalation clause for dispute resolution

Jurisprudencia2016 | Septiembre 20
In William Lim and Another v. Hung Ka Hai Clement and Others [2016] HKCFI 1439; HCA 1282/2016 (24 August 2016), the Hong Kong Court of First Instance ordered a stay of court proceedings and referred an ongoing dispute to arbitration pursuant to s 20 (1) of the Arbitration Ordinance (Cap 609). The Court found that it had no jurisdiction when an action brought before it is one which is the subject of an arbitration agreement.
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Costs of raising third party funding to pursue claims in arbitration can be recovered, says High Court

Third party funding2016 | Septiembre 20
Businesses can recover third party funding they have raised to pursue arbitration claims seated in England from the companies they litigate against, the High Court in London has ruled.
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One Step Forward, Two Steps Back – PRC Court refuses to enforce an ICC award on the ground of public policy

ICC2016 | Septiembre 20
In Wicor Holding A.G. v. Taizhou Haopu Investments Limited (Civil Action (2015) Tai Zhong Shang Zhong Shen Zi No. 00004), the Taizhou Intermediate People’s Court refused to enforce an ICC award on the ground of public policy.
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‘I Agreed To What?’ – Federal Court Decision May Increase Scrutiny Of Online Terms And Conditions

Seal of the United States District Court for the Southern District of New York2016 | Septiembre 15
Can a consumer be bound by an arbitration agreement contained in online terms and conditions by merely signing in to an Internet-connected service? In a recent opinion that should strike a note of caution among businesses, a federal judge in New York held such an arbitration agreement unenforceable.
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English-Only Arbitration Agreement Deemed Unenforceable

Resultado de imagen de california court appeal seal2016 | Septiembre 14
An arbitration provision that was provided only in English to a population consisting of one-third Spanish speakers, and that required claimants to bear one-half of arbitration expenses, was unenforceable as unconscionable. Sigue leyendo

California Court of Appeal Rules Arbitration Agreement In Employee Handbook Is Not Enforceable

Resultado de imagen de seal Courts of Appeal of the State of California2016 | Septiembre 10
On August 22, 2016, a California Court of Appeal held that an arbitration agreement in an employee handbook did not create an enforceable agreement to arbitrate.  Esparza v. Sand & Sea, Inc. et al., B268420 (Aug. 22, 2016).  The employee handbook at issue stated, “[T]his handbook is not intended to be a contract . . . nor is it intended to otherwise create any legally enforceable obligations on the part of the Company or its employees.”
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Mediation Not Always The Answer

Irlanda2016 | Agosto 11
A party should consider the appropriateness of mediation to the particular dispute before requesting the Court to invite the parties to mediate.

The Irish Superior Court Rules (the “Rules”) allow Judges to adjourn Court proceedings and invite disputing parties to mediate. If one party refuses the invitation, the Courts may take that refusal into account when awarding costs and may even penalise a successful party that refused a Court invitation to mediate.
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English High Court refuses to determine the existence of a disputed arbitration clause prior to the commencement of arbitration proceedings

High Court Justice Inglaterra Gales2016 | Junio 16
In a recent decision, the English High Court determined that it would be wrong in principle for the court to determine whether parties to a disputed contract had entered into a binding arbitration agreement in circumstances where one party intended to commence arbitration proceedings on the basis of the disputed arbitration agreement.
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