Searching Content indexed under Litigation, Mediation & Arbitration by Gilbert Samberg ordered by Published Date Descending.
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Attacking An Inexplicable Arbitration Award: "Manifest Disregard of the Law" Or Something Else?
What to do with an arbitration award that appears to be fatally internally inconsistent and provides no explanation or reconciliation of the inconsistency?
United States
27 Sep 2019
Incorporation By Reference Of A Commercial Contract's Arbitration Clause Can Bind A Non-Signatory Performance Bond Surety
Heads up, sureties! (And all other contracting parties.) Incorporation by reference of the terms of one agreement into another is a classical common law basis for binding
United States
11 Sep 2019
New Convention Aims To Make Mediated Settlements An Attractive Means Of Resolution Of International Disputes . . . But Will It?
The United States joined 45 other countries on August 7, 2019 as the initial signatories of the UN Convention on International Settlement Agreements Resulting from Mediation
United States
4 Sep 2019
Who Decides The "Class Arbitrability" Issue: Fifth Circuit Joins Consensus That It Is A Court, Not An Arbitrator, But Evidently Missed The Memo From SCOTUS About The Exception
Add the Fifth Circuit to the growing list of Federal Circuit Courts that have decided that "class arbitrability" is a gateway question for a court, rather than an arbitrator
United States
7 Aug 2019
The Arbitration Section In Your Employee Handbook Is Not An Agreement to Arbitrate
Federal law nowadays certainly favors enforcement of agreements to arbitrate. But generally applicable state contract law determines contract formation – i.e
United States
1 Aug 2019
"Interim Measures" In Arbitration: Requiring Pre-Hearing Security For Payment Of An Eventual Final Award
Can an arbitrator require an arbitrating party to post collateral prior to a hearing on the merits of the substantive claim(s) as security with respect to payment of a possible final award
United States
20 May 2019
You'll Have To Say It If You Mean It: Supreme Court Holds That Agreement To Permit "Class Arbitration" Must Be Express And Unambiguous
Predictably, the U.S. Supreme Court has ruled in Lamps Plus, Inc. v. Varela, No. 17-988, 2019 U.S. LEXIS 2943 (U.S. April 24, 2019),
United States
20 May 2019
What Is A "Reasoned" Arbitration Award?
It is not unusual for an arbitration agreement to require, expressly or impliedly, a "reasoned award."
United States
23 Apr 2019
FAA Procedures Supersede The Federal Rules In Judicial Proceedings Concerning Arbitrability; Then The Courts Make It Complicated
You are in federal court facing a motion to compel arbitration, and you reach for your well-worn copy of the Federal Rules of Civil Procedure in order to confirm how to go about your next step...
United States
9 Apr 2019
"Just What Was Needed": Another Way To Waive A Right To Arbitrate
Want to give up a contractual right to arbitrate? Easy. Don't seek to enforce it. For example, just litigate for awhile and don't mention your arbitration clause.
United States
5 Mar 2019
How To Enforce An Arbitration Subpoena: Jurisdiction And Venue Basics
The Federal Arbitration Act §7 (9 U.S.C. §7) enables arbitrators to "summon … any person to attend before them or any of them as a witness and in a proper case to bring with him or them any [document] which may be deemed material as evidence in the case."
United States
15 Feb 2019
The Bermann Objection: Re-Thinking The "Clear And Unmistakable" Manifestation Test Re Who Decides Arbitrability Issues
Gateway issues of arbitrability are presumptively for a court, rather than an arbitrator, to decide in the first instance. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995).
United States
14 Feb 2019
Judicial "Wholly Groundless" Doctrine Regarding Delegation Of Arbitrability Issues Is Wholly Groundless Under The FAA
The U.S. Supreme Court has decided that the Federal Arbitration Act ("FAA") requirement that courts enforce arbitration agreements according to their terms.
United States
14 Jan 2019
Consolidation Of Arbitrations Is A Procedural Matter Presumptively For The Arbitrator To Decide In Accordance With The Parties' Agreement
Since arbitration is a process of dispute resolution in accordance with a private agreement, the question of consolidation of arbitral proceedings ought to be determined in the same manner as other procedural issues.
United States
8 Jan 2019
New Rules Of The Hong Kong International Arbitration Centre Arguably Foster Collective And Opt-In Class Arbitration
The Hong Kong International Arbitration Centre ("HKIAC") has promulgated a new set of Administered Arbitration Rules ("AAR"), effective November 1, 2018.
United States
23 Nov 2018
Seventh Circuit Agrees That Class Arbitrability Is A Gateway Question Presumptively For The Court, Then Apparently Ignores The Delegation Issue
The Seventh Circuit Court of Appeals has joined five other Circuits in determining, unremarkably, that class or collective arbitrability is a gateway question that is presumptively for the court to decide.
United States
4 Nov 2018
Non-Signatory To Arbitration Agreement Cannot Compel Arbitration When New York Convention Applies
The Eleventh Circuit Court of Appeals held recently that it could not compel arbitration demanded by a non-signatory to an arbitration agreement when the New York Convention applied.
United States
25 Oct 2018
Eleventh Circuit Adjudicates The Delegation Issue With Respect To "Class Arbitrability" No Differently Than For Bilateral Arbitration; But Who Is Bound?
The U.S. Supreme Court has pointed out consistently in recent years that the relatively new construct of "class arbitration" is very different from your uncle's classic bilateral arbitration.
United States
18 Oct 2018
Fair Labor Standards Act Collective Action Provision Too Does Not Make Agreement To Mandatory Bilateral Arbitration Unenforceable
When the Supreme Court ruled recently that the "concerted activities" provision of the NLRA did not make a contractual waiver of "class arbitration" unenforceable, it provided an extensive analysis ...
United States
30 Aug 2018
After Granting A Motion To Compel Arbitration, A Court Operating Under The FAA Should Stay, Not Dismiss, The Pending Suit. And Then What?
After granting a motion to compel arbitration, should a court operating under the FAA stay or dismiss the pending judicial proceeding?
United States
16 Aug 2018
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