2017 | Junio 26 Two elements are at play in judicial enforcement of arbitration awards: One is the formal legal elements: Courts are legally incapable of enforcing arbitral awards issued by religious tribunals if they fail to follow the basic legal demands imposed by the Federal Arbitration Act. Second, even if faith-based arbitrators have observed all the formal legal requirements, they must still convince judges that their religious dispute resolution processes are genuinely fair, effective and worth upholding. Sigue leyendo →
2017 | 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). Sigue leyendo →
2017 | Abril 4 The Florida Supreme Court on March 16 released a new set of rules to simplify the family law processes while establishing a separate set of rules and procedures for matters before family court.
2017 | Marzo 21 The Straus Institute for Dispute Resolution at Pepperdine University School of Law has once again been named number one among academic dispute resolution programs in U.S. News and World Report’s 2018 Law School Rankings. Released last week, the rankings place the Straus Institute at the top of the list for the twelfth time in thirteen years. Sigue leyendo →
2017 | 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. Sigue leyendo →
2017 | Febrero 23 The U.S. Supreme Court on Wednesday questioned the validity of arbitration agreements used by nursing homes in a case involving Kindred Healthcare.
The justices recently ruled in favor of arbitration agreements in two separate cases but they appeared to take a more critical approach to the practice when questioning Andrew Pincus, a lawyer representing Kindred Healthcare. Sigue leyendo →
2017 | Febrero 16 New Jersey has taken the first step toward becoming a global center of international arbitration by enacting the International Arbitration, Mediation, and Conciliation Act (the “Act”) on February 6, 2017. The Act provides the framework for making New Jersey an attractive destination for resolving international business and trade disputes. Sigue leyendo →
2017 | Febero 15
Low commodity prices are causing financial pain on Minnesota farms, but bankruptcies are rare thanks in part to a state mediation program.
The farmer-lender program requires lenders to offer struggling farmers the chance to renegotiate debt terms with the help of a mediator before repossessing any property, Minnesota Public Radio (http://bit.ly/2lLs2ml ) reported.
2017 | Febrero 7 As courts repeatedly have emphasized, arbitration agreements are contracts. That means we have to consider the law of mutual assent in determining whether the parties entered into a binding arbitration agreement and whether a countersignature is required. Sigue leyendo →
2017 | Febrero 7
Silicon Valley Arbitration & Mediation Center (SVAMC), a leading not-for-profit that advances the use of arbitration and mediation in technology and technology-related business disputes in the San Francisco Bay Area and around the world, today released its highly anticipated 2017 List of the World’s Leading Technology Neutrals. Sigue leyendo →
2017 | Enero 23
The New Jersey Assembly has passed legislation that prohibits companies from inserting language in consumer contracts that requires arbitration of disputes in forums outside of the state. Sigue leyendo →
2017 | Enero 17
The U.S. Supreme Court on Friday agreed to consider whether companies can head off costly class action lawsuits by forcing employees to give up their right to pursue work-related legal claims in court as a group. Sigue leyendo →
2017 | 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. Sigue leyendo →
2017 | Enero 10 A South Carolina startup, Dispute Resolution Data, has signed agreements to collect information from some 20 arbitration institutions. To avoid the privacy issues, the institutions upload the data themselves before Dispute Resolution Data reviews the material, so that client names and details remain in the custody of the arbitral institution. The database went live for subscribers in December, with more than 66,000 data fields on thousands of closed arbitration cases, so far connected to 136 countries. More cases are being fed into the database daily. Sigue leyendo →
2017 | Enero 6
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2017 | 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. Sigue leyendo →
2016 | Diciembre 14
Although mediation is considered by the Indiana Supreme Court to be a “court proceeding,” it is conducted in private, with no judge present. This private nature of mediation and its cloak of confidentiality serve to insulate and isolate the participants from outside scrutiny and, as in golf, with no referee present, the integrity of the process depends on the professionalism of the participants — the mediator and lawyers. Although the ADR rules describe mediation as a “non-adversarial” process, the reality of mediation of litigated cases is that the lawyers are expected, both by the parties and the process generally, to advocate for their client and to attempt to guide the mediation process to meet their client’s ends or interests. Sigue leyendo →
2016 | Diciembre 7
El tratado de libre comercio (TTIP) entre EE UU y la UE, que se impulsó para ser el más importante de la historia dado que las dos partes suman el 60% del PIB mundial, ha suscitado multitud de polémicas desde la puesta en marcha de las negociaciones en 2013.Uno de los aspectos que más controversia ha generado es el llamado Mecanismo de Defensa del Inversor Extranjero, que es un sistema de arbitraje para dirimir disputas entre el inversor y el Estado receptor de la inversión. Sigue leyendo →
2016 | Diciembre 4
The International Centre for Dispute Resolution® (ICDR®) and the American Arbitration Association® (AAA®) are pleased to announce the creation of the Aerospace, Aviation and National Security Panel. This unique panel of arbitrators and mediators brings together leading industry experts to deal with complex, high-value aerospace, aviation, defense, cyber and security-related disputes. Sigue leyendo →
2016 | 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. Sigue leyendo →
2016 | Noviembre 21 The Obama administration is pressing U.S. states to curb insurers’ use of fine print in contracts that bars unsatisfied customers from suing, taking the latest step against “mandatory arbitration clauses” in an insurance report released by the Treasury Department on Monday. Sigue leyendo →
2016 | Noviembre 7
From the late 17th century, the Religious Society of Friends (“Quakers”) observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct and particularized standards of conduct, rather than general legal codes, to resolve disputes. Finally, in both cases arbitration awards were, as a practical matter, self-executing and resort to court enforcement was inapplicable. The study proposes that attributes such as mutual accountability, closed communities, and shared behavioral expectations are distinctive hallmarks of the arbitration process, in the absence of which arbitration devolves from a powerful instrument of community cohesion to a mere alternative legal process. Sigue leyendo →
2016 | Noviembre 6 This report reveals how wise negotiators extract unexpected value using an indirect approach to conflict management. An aggressive management style can set you up for repeated failure. Direct conflict management approaches can be overly combative and counter-productive. Experienced negotiators know that compromise seldom succeeds. Sigue leyendo →
2016 | Noviembre 5 The United States Arbitration Act (known today as the Federal Arbitration Act, or FAA) is a relatively short and deceptively cryptic statute. The heart of the statute, section 2, is one sentence, and this key provision simply declares that arbitration agreements are generally “valid, irrevocable, and enforceable. There is not much traditional legislative history surrounding this statute because much of the development of the bill that became the FAA occurred through organizations outside of Congress, like the American Bar Association and the New York Chamber of Commerce. As a result, to understand the FAA at a deeper level, it is helpful to examine the broader history and context surrounding the FAA’s enactment. Sigue leyendo →
2016 | Noviembre 5 Current hot topics in arbitration include the role of choice in arbitration, predispute arbitration agreements, religious arbitration, and debates surrounding the constitutionality and efficacy of arbitration under state law. While the specific question of each hot topic is distinct, the public discourse surrounding each question reveals some common themes: How should we resolve our disputes? Should that process be public or private? What law or norms should apply? Do we have a right to initiate litigation or resolve our disputes by way of a trial? If so, may we waive those rights through contractual agreement? If we may waive those rights, is it beneficial for democratic decision-making, the development of law, the parties in conflict, or the resolution of a dispute for us to do so? To what extent should arbitration adopt or mirror the procedures of litigation or the administrative functions of the court? Is arbitration distinct from litigation? Is arbitration effective, efficient, and/or “good”? Sigue leyendo →