Earlier this month, Stephen P. Anway, a partner in the Cleveland, OH office of Squire, Sanders & Dempsey, LLP, authored an article which summarizes recent changes to United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules. The article, entitled United Nations Commission on International Trade Adopts Revised UNCITRAL Arbitration Rules, discusses the revisions to the UNCITRAL Arbitration Rules, adopted in 2010. As stated in the article, “the revisions seek to enhance the efficiency of UNCITRAL arbitration and to reflect uses of modern technology.” The key changes are noted and briefly explained. Mr. Anway also points out the lack of provisions imposing a general duty of confidentiality. The article may be read (without charge) here. Disputing previously discussed the revised UNCITRAL Arbitration Rules here and here. Technorati Tags: ADR, law, arbitration
Continue reading...Disputing would like to thank Paul Lurie, partner at Schiff Hardin, LLP’s Chicago office for bringing In re the Subpoena Issued to Beck’s Superior Hybrids, Inc., No. 29A05-1008-MI-489, (Ind. App. January 12, 2011) to our attention. In the case, the Court of Appeals of Indiana held that Section 7 of the Federal Arbitration Act (“FAA”) preempted an Indiana discovery statute. Here are the facts: In 2002, Monsanto Company and Monsanto Technology, LLC (collectively, “Monsanto”) entered into two seed license agreements with Pioneer Hi-Bred International and its parent company, E.I. DuPont de Nemours & Company (collectively, “DuPont”). Both agreements contained an arbitration provision which stated any disputes would be resolved by an arbitration proceeding in New York, NY. In May 2009, Monsanto filed a demand for arbitration against DuPont in New York City. In its claim, Monsanto alleged “DuPont was engaged in a sublicensing scheme whereby DuPont distributed Monsanto’s ‘Roundup Ready technology’ to unaffiliated third parties throughout the United States, including Beck’s, an Indiana corporation,” at a lower price than Monsanto sold its seed to third parties. After a New York arbitration panel was formed, Monsanto requested that the panel issue a subpoena duces tecum ordering “Beck’s to appear at a preliminary hearing, in Indiana, before one of the panel members and to produce business records relating to Monsanto’s arbitration claim.” In February 2010, Monsanto served Beck’s with the arbitration panel’s subpoena. Beck’s refused to comply with the subpoena because the FAA “required Monsanto to seek enforcement of its nonparty subpoena in ‘the United States district court for the district’ in which the arbitration panel was sitting, the Southern District of New York.” New York courts lacked both subject matter jurisdiction and personal jurisdiction over Beck’s, however, so Monsanto filed a “petition to assist in the Hamilton Superior Court, pursuant to Indiana Trial Rule 28(E), to compel Beck’s to comply with the subpoena.” In August 2010, the trial court ordered Beck’s to comply with the panel’s subpoena and appear before a single arbitrator in Atlanta, Indiana to provide testimony regarding “authentication of business records.” Beck’s appealed the trial court’s order on the grounds that Section 7 of the FAA preempted Indiana Trial Rule 28(E). The Indiana Appeals Court began its review by declaring it was undisputed that the New York arbitration was governed by the FAA and that Section 7 applied to the subpoena at issue. Next, the court stated “neither express preemption nor field preemption applies here.” According to the court, “Beck’s contends that Indiana Trial Rule 28(E), as applied, is in conflict with the accomplishment and execution of Section 7’s purposes and objectives.” According to the court, Case law from the federal courts of appeals makes clear that the type of subpoena issued by the arbitration panel against Beck’s is authorized by Section 7. Specifically, in Hay Group, the Third Circuit held that an arbitrator may issue a Section 7 subpoena to a nonparty for the production of documents if the subpoena also requires the nonparty to appear. …. The central question in this appeal is whether Section 7’s language that Monsanto must petition a federal district court for enforcement of the subpoena is a clear reflection of congressional intent and whether Monsanto’s use of Trial Rule 28(E) frustrates that intent. As discussed in more detail below, we hold that Section 7 is clear as written. Pursuant to its plain terms, Congress requires the enforcement of an arbitration panel’s nonparty subpoena to be brought in the federal forum. 9 U.S.C. § 7. This limited federal jurisdiction for enforcement is a reflection of Congress’ desire to keep arbitration simple and efficient, ‘to protect non-parties from having to participate in an arbitration to a greater extent than they would if the dispute had been filed in a court of law,’ and not to burden state courts with incidental enforcement procedures. See Dynegy, 451 F.3d at 96. As such, the attempt to use an Indiana trial rule when a federal forum is unavailable frustrates Congress’ intent to limit these petitions to the federal courts. The Indiana Appeals Court continued, Section 7 requires an arbitration panel’s nonparty subpoena to be enforced by “the United States district court for the district in which such arbitrators, or a majority of them, are sitting.” 9. U.S.C. § 7. The arbitration panel, or a majority of its members, is and will be sitting in New York City. Accordingly, if Monsanto needed to enforce the nonparty subpoena, then, by the plain text of Section 7, it needed to do so in the United States District Court for the Southern District of New York. Monsanto may not circumvent the express procedure outlined by Congress by ignoring Section 7 and instead applying for a Trial Rule 28(E) petition to assist in an Indiana trial court simply because Monsanto lacks federal jurisdiction under Section 7. See Dynegy, 451 F.3d at 94-96. That Monsanto lacked an independent basis for federal subject matter jurisdiction is not Beck’s problem. Monsanto agreed to arbitration, and it is the party chargeable with any negative results associated with that choice. Monsanto’s self-inflicted wounds do not give this court cause to ignore the plain text of Section 7. The court then dismissed Monsanto’s argument that the Southern District of Indiana had jurisdiction over the dispute merely because the New York arbitral “panel agreed to ‘sit’ in Indiana for purposes of the preliminary hearing.” According to the court, “The suggestion that a district court in a district other than the district in which the arbitration panel is sitting could be the proper court under Section 7 was squarely rejected by the Second Circuit.” The court continued, indulging Monsanto’s analysis one step further to assume that the Southern District of Indiana is the proper federal district under Section 7, Monsanto still did not ask the district court to enforce the subpoena. Instead, Monsanto asked an Indiana trial court to do so. Next, the Appeals Court stated “Congress knows what a United States district court is, and we will not redefine […]
Continue reading...by Holly Hayes The Association of periOperative Registered Nurses (AORN) published an article in their December journal titled, “Enhancing Communication in Surgery Through Team Training Interventions: A Systematic Literature Review.” The article quotes The Joint Commission’s (TJC) October 2007 Sentinel Events Statistics which stated communication failure was the root cause of approximately 70% of healthcare sentinel events. The TJC defined a sentinel event as an “unanticipated event in a healthcare setting resulting in death or serious physical or psychological injury to a patient.” The authors’ initial literature search identified 854 potential team training interventions; further screening reduced that number to 18 studies for review with 12 of those studies meeting the criteria for inclusion in the final sample. The results of the review, as described in the full text of the article, suggest overwhelming evidence that team training can improve team-based outcomes. The authors also conclude: The success of any team training intervention introduced into the clinical milieu lies in its sustainability over time. Clearly, the tendency for the effects of interventions to decay and for teams to regress over time also must be considered when defining the effectiveness of such interventions. Sustainability requires well-publicized institutional support and action at all levels in the organization and substantial commitment of institutional resources in the creation of team training policies and protocols, as well as regular retraining. We recommend that team training programs incorporate team coaches who are able to provide on-the-job support, similar to the TeamSTEPPS program. Equally important to this effort is the provision of timely and well-executed feedback on team- and patient-based outcomes. Team training is not a one-day or single-session event; therefore, teamwork behaviors need to be acknowledged and reinforced in mentoring sessions and annual performance evaluations. This will maintain behaviors over time and embed integration of teamwork into the organizational culture. In complex health care environments, teams do not exist in isolation and, as such, the effectiveness of any team training intervention cannot be appropriately evaluated without considering the larger system in which the team operates. As the healthcare industry continues to work to improve quality, decrease costs and respond to the Patient Protection and Affordable Care Act, the lessons gleaned from the literature review performed by Brigid M. Gillespie, RN, Cert Periop, BHlth Sc (Hons), PhD; Wendy Chaboyer, RN, BSc, MN, PhD; and Patrick Murray, M Mgt Av about OR team training may be applicable in other healthcare settings. We welcome your comments on this topic. Technorati Tags: Mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.
Continue reading...On January 11th, the Supreme Court of Texas agreed to hear CMH Homes, Inc. et al. v. Perez, No. 10-0688. In the case, a dispute between a creditor and a purchaser of a mobile home arose. After both parties agreed their dispute was subject to arbitration under the Federal Arbitration Act, a trial court signed an order compelling arbitration and appointing an arbitrator over CMH Homes’ objections that such an appointment was premature. CMH Homes filed an interlocutory appeal to the arbitration order in the San Antonio Appeals Court pursuant to Section 51.016 of the Texas Civil Practice and Remedies Code. Section 51.016 is a recent addition to the Code and only became effective on September 1, 2009. It states: Sec. 51.016. APPEAL ARISING UNDER FEDERAL ARBITRATION ACT. In a matter subject to the Federal Arbitration Act (9 U.S.C. Section 1 et seq.), a person may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court, county court at law, or county court under the same circumstances that an appeal from a federal district court’s order or decision would be permitted by 9 U.S.C. Section 16. On July 28, 2010, the San Antonio Appeals Court dismissed CMH Homes’ interlocutory appeal for lack of jurisdiction (No. 04-10-00259-CV) and CMH Homes filed a petition for review with the Supreme Court of Texas. According to the Texas Supreme Court Journal, the questions presented by the parties are: ISSUES PRESENTED by CMH Homes, Inc., et al. 1. When federal courts permit interlocutory appeal of an issue, do Texas courts of appeals have the same jurisdiction under the new statute allowing interlocutory appeals “under the same circumstances that an appeal . . . would be permitted by 9 U.S.C. Section 16” of the Federal Arbitration Act? 2. When a party alternatively requests mandamus relief, and all procedural rules governing petitions for mandamus have been met, can a Texas court of appeals refuse to grant relief unless a second parallel proceeding is filed? ISSUES PRESENTED by Adam Perez Issue One A court of appeals does not have appellate jurisdiction under TEX. CIV. PRAC. & REM. CODE §51.016, which allows interlocutory appeal of arbitration orders to the extent permitted by 9 U.S.C. §16, because orders like the one at issue – appointing an arbitrator to resolve in impasse under §5 of the FAA – are not identified as one of the types of appeals permitted under the federal statute, and are therefore not immediately appealable unless combined with some other order from which an immediate appeal is permitted, such as a order of dismissal or orders denying arbitration. Issue Two CMH’s argument that a court of appeals should, for convenience, treat an appellate brief as though it were a mandamus petition, even though no instrument is filed to invoke the court of appeals’ original jurisdiction, was already rejected in Am. Std. v. Brownsville I.S.D. (In re D. Wilson Constr. Co.), 196 S.W.3d 774 (Tex. 2006). Oral argument will be heard at 9 am on February 3, 2011. Disputing will be keeping an eye on this and other notable ADR cases currently up for review by the Supreme Court of Texas. Technorati Tags: ADR, law, arbitration, Texas Supreme Court
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.