The July 2009 issue of the Defense Litigation Journal, published by the International Association of Defense Council had an interesting article: Trends in Litigating Arbitration: Using Motions to Compel Arbitration and Motions to Vacate Arbitration Awards, 76 Def. Couns. J. 338 (2009), written by our blog contributor Don Philbin. Check it out. Technorati Tags: ADR, law, arbitration
Continue reading...Via the Business Conflict Blog, we learned of the recent ABA Resolutions and Report with respect to the Arbitration Fairness Act of 2009 (for background, click here and here) and its implications to international commercial arbitration. This is the summary: The American Bar Association should support the use of international commercial arbitration and legislation or regulation that recognizes and aids in the enforcement of international commercial arbitration agreements and awards, oppose the passage of any legislation or regulation that would discourage such arbitration, or that would invalidate pre-dispute arbitration agreements in international commercial transactions, or that would alter the current law as to the allocation of authority between the court and the arbitrators to determine the jurisdiction of the arbitral tribunal in international commercial disputes or that would alter the timing of such determinations, or that would protect discrete classes as an amendment to Chapter 1 of Title 9, i.e., the Federal Arbitration Act (“FAA”). The resolution and the report take no position as to the optimal treatment of disputes concerning consumers, employees, civil rights claims by individuals or purely domestic franchise disputes. Read more here. Technorati tags: arbitration, ADR, law,
Continue reading...The United States Court of Appeals for the Fifth Circuit held that a contract containing a choice of law and forum clause effectively waives the right to remove to federal court under the New York Convention. In ENSCO International Inc. v. Certain Underwriters at Lloyd’s et. al. (No. 08-10451) (5th Cir. Aug. 12, 2009), plaintiff ENSCO International, Inc. is an offshore drilling oil and gas company and defendants are several insurance underwriters (the “Underwriters”). The Underwriters insured an oil rig owned by ENSCO, which insurance policies (the “Policies”) contain a choice of law and jurisdiction clause stating that: “The proper and exclusive law of this insurance shall be Texas law. Any disputes arising under or in connection with it shall be subject to the exclusive jurisdiction of the Courts of Dallas County, Texas.” During Hurricane Katrina, the oil platform suffered serious damage and a dispute arose between the parties about the scope of the coverage of the Policies. ENSCO sued the Underwriters in Dallas County, consistent with the forum selection clause. However, the Underwriters removed the case to federal court, claiming removal rights under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a.k.a. the New York Convention). See 9 U.S.C. § 205. ENSCO moved to remand, arguing that the forum selection clause waives the right to remove. The district court sided with ENSCO and the Underwriters now appeal. At issue in this case is whether the Policies contain a waiver of the right to remove the case to federal court. The Fifth Circuit first highlighted the legal standard for waiver: For a contractual clause to prevent a party from exercising its right to removal, the clause must give a ‘clear and unequivocal’ waiver of that right….There are three ways in which a party may clearly and unequivocally waive its removal rights: [1] by explicitly stating that it is doing so, [2] by allowing the other party the right to choose venue, or [3] by establishing an exclusive venue within the contract. After a discussing at length City of New Orleans v. Mun. Admin. Servs., Inc., 376 F.3d 501 (5th Cir. 2004) and McDermott International, Inc. v. Lloyds Underwriters, 944 F.2d 1199 (5th Cir. 1991), the court concluded that the third basis for waiver (the contractual specification of jurisdiction) applies here, because the Policies “fixes ‘exclusive’ venue for litigation in ‘the Courts of Dallas Country, Texas.’ “ Accordingly, the court held that the Underwriters have waived their right to remove and affirmed the order to remand. Technorati Tags: arbitration, ADR, law, Fifth Circuit
Continue reading...We are happy to share with you that our blog Disputing turns four today! Disputing was originally conceived by Karl Bayer and Rob Hargrove as a forum for discussion of legal developments as they happen. We have come a long way since our very first blog post: Two Law Review Articles have cited Disputing (here and here). Disputing was mentioned by the Wall Street Journal for covering consumer arbitration clauses and the “Arbitration Fairness Day.” Disputing has also been cited by several CLE presentations in Texas. Disputing‘s blogmaster was invited to guest-blog at the Loree Reinsurance and Arbitration Law Forum. The Supreme Court of Texas Blog feeds Disputing‘s case summaries of decisions rendered by the Texas Supreme Court. Diane Levin named Disputing as One of the Five ADR Blogs to Add to your Reading List. Disputing is the only blog featured in the French Arbitration Database-La Base de Données sur le Droit de l’Arbitrage Interne et International. Disputing has teamed up with the Loree Reinsurance and Arbitration Law Forum to create the Commercial and Industry Arbitration and Mediation Group on LinkedIn. Disputing is a mediate.com Featured Blog. We also have been honored to have commentaries and guest-posts by the following friends of this blog: Audrey L. Maness Don Philbin Glen M. Wilkerson The Honorable W. Royal Furgeson, Jr. Peter S. Vogel Philip J. Loree Jr. Professor Alan Scott Rau Professor Peter Friedman Rick Freeman We would like you to celebrate with us by leaving a reply on this post! Technorati Tags: ADR, law, arbitration
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.