Today, Disputing continues its 2012 Year-End Highlights. Following are some of the recent developments in international arbitration published in 2012 by the International Law Office (free registration is required to view the articles): Austria: Costly decision: court refuses to set aside arbitral award Austria: Supreme Court defines limits of arbitration agreements Austria: Supreme Court takes restrictive view on state immunity Brazil: Bumps in the road to infrastructure arbitration Brazil: Courting arbitration: specialised chamber decides first arbitration cases Brazil: Sao Paulo appellate court suspends foreign arbitration proceedings Canada: Canada’s international commercial arbitration statutes under review Canada: Choosing a dispute resolution mechanism Canada: Investor-state arbitration under new investment agreement with China Canada: Ontario courts consider jurisdiction of NAFTA tribunals Canada: Stay denied where dispute fell under oral agreement and outside arbitration clause Cyprus: Impact of arbitral tribunal order on Cypriot court judgment Denmark: Tribunal rules on failure to pay security for counterclaim Ecuador: Arbitral tribunal rules against Ecuador Ecuador: Court prevents a disrupting strategy to derail arbitration Ecuador: State fails to comply with international arbitral award alleging human rights concerns Ecuador: Court prevents a disrupting strategy to derail arbitration France: Award annulled due to withdrawn counterclaims introduced by insolvent defendant France: Supreme Court reiterates autonomy of the international arbitral legal order France: Defining ‘arbitral awards’: Supreme Court weighs in Greece: Appeal court considers law governing objective arbitrability Greece: Formal validity of domestic arbitral award Greece: Is a fully paid award still enforceable under the New York Convention? Greece: Punitive damages awarded in arbitration refused enforcement Hungary: Interpreting new restrictions on arbitration India: Amendment of grounds in application for challenging arbitral awards India: Bilateral investment treaties: chosen pathway for dispute resolution India: Courts discourage frivolous impleadment of unnecessary parties India: Supreme Court restricts domestic court jurisdiction over foreign arbitrations International: Achieving an efficient arbitration process International: Best practices: the importance of experienced arbitration counsel Istanbul: Istanbul set to become international arbitration centre Italy: Mandatory mediation: the Italian experience, two years on Kenya: Alternative dispute resolution gains more legal recognition Kenya: Arbitration may no longer be viable as an ADR method Kenya: Aspects of arbitration proceedings Lebanon: Overview (March 2012) Lebanon: When does an arbitration agreement extend to third parties? Lithuania: Non-arbitrable public procurement disputes: on the right track? Malaysia: Court clarifies timeframe for setting aside award Malaysia: Court rules on competing arbitration clauses Malaysia: Court rules on enforcement of foreign arbitral award Malaysia: Court rules on recognition of foreign arbitral awards Malaysia: Court rules on role of foreign advocates in arbitration proceedings Mexico: Can a government agency unilaterally nullify an arbitration agreement? Netherlands: Interim measures prior to constitution of arbitral tribunal: a Dutch perspective Netherlands: Judicial review for quashing arbitral awards Netherlands: Standards of reasonableness and fairness may prevail over arbitration agreements Nigeria: Court rules on timeframe for proceedings to enforce arbitral awards Nigeria: The challenges of arbitrating in Africa: the Nigerian experience Russia: Supreme Arbitrazh Court rejects alternative (asymmetrical) arbitral clauses Spain: Court rules on action to set aside arbitral award Sweden: Supreme Court rules on doctrine of assertion Switzerland: Bankruptcy no restriction to arbitration unless it excludes bankrupt’s legal capacity Switzerland: Comprehensive translation of award not required for enforcement in Switzerland Switzerland: No two-tier judicial review of constitution of arbitral tribunal Switzerland: Supreme Court rules on Private International Law Act Switzerland: Supreme Court saves pathological arbitration clause Switzerland: Third parties and arbitration clauses in promissor/promissee contracts Turkey: Bilateral investment treaties and international arbitration Turkey: Chamber of Commerce forms working group to amend arbitration rules Turkey: Enforcement of foreign arbitral awards subject to progressive court fees Turkey: New code of obligations restricts arbitration in sales with instalment payments Ukraine: Mitigation of damages in arbitration practice: trite law or space for creativity? Ukraine: Obtaining security measures in support of arbitral awards Ukraine: Time limit for forwarding arbitral award to parties extended Ukraine: Ukraine earmarks UAH100 million for ICSID awards United Kingdom: Courts can enforce declaratory arbitral award United Kingdom: Courts can enforce declaratory arbitral award United Kingdom: Damages for breach of arbitration agreement United Kingdom: English courts may enforce award that has been set aside United Kingdom: High Court rejects challenge to English arbitral award United Kingdom: Law governing arbitration has closest connection to law of the seat United Kingdom: Mediation blues: agreement to mediate found not binding United Kingdom: War on enforcement or valid arbitration proceedings – who decides? United Kingdom: Comity prevents English courts from issuing anti-suit injunction USA: Arbitrability as a threat to finality of international arbitration awards USA: Can franchise agreement protect against class-wide and associational arbitration? USA: Court sanctions counsel for frivolous challenge to arbitration award USA: District court grants Section 1782 discovery in support of NAFTA arbitration USA: Eighth Circuit Court of Appeals applies Rent-A-Center severability rule USA: Federal appeals court clarifies arbitrator ‘evident partiality’ standard USA: Supreme Court reaffirms pro-arbitration stance

The United States Court of Appeals for the Fifth Circuit affirmed the district court’s order to compel arbitration finding that it was the arbitrator’s task to evaluate the scope of the grievance and the CBA. Background In International Brotherhood of Electrical Workers, Local Union No. 716, AFL-CIO v. Albemarle Corporation, Inc., No. 11-20883 (5th Cir. June 18, 2012) the International Brotherhood of Electrical Workers (“Union”) filed a grievance against Albemarle Corporation (“Albemarle”), a company that manufactures specialty chemicals and operates a chemical plant in Pasadena, Texas. Both are parties to a collective bargaining agreement (“CBA”), and pursuant to that CBA, the Union filed a grievance known as Grievance 10-02. The grievance was denied at all stages of internal review. The CBA allowed for arbitration in limited circumstances, but Albemarle refused to arbitrate the grievance. The Union sued Albemarle to compel arbitration. The Union claimed that Albemarle’s refusal to submit the grievance to arbitration violated the CBA. Albemarle argued that the Union was attempting to arbitrate issues outside the scope of Grievance 10-02 by recharacterizing the subject matter of the grievance. The district court agreed with the Union and granted summary judgment in its favor. Fifth Circuit According to the Court, it was undisputed that the CBA allowed the Union to raise Grievance 10-02 and that the CBA thus entitled the Union to arbitration of that grievance. The particular issue was whether Grievance 10-02 encompasses the claims on which the Union sought to compel arbitration. The Court addressed whether that was a question for the court or the arbitrator to decide. The Court reviewed the CBA to determine the scope of the parties’ agreement. The CBA entitle the Union to arbitrate “grievances,” which included any dispute between the parties involving the proper application of, interpretation of, or compliance with the CBA. However, the CBA does not extend the right to arbitration to “complaints,” which involve claims that do not allege violations of the CBA. Furthermore, the CBA prohibited the parties from attempting to arbitrate a complaint by disguising it as a grievance. The Court explained that the CBA required the Union to meet certain procedural requirements before it could arbitrate a claim. It was undisputed that the Union met those procedural requirements to arbitrate. The CBA left the questions of proper application of or compliance with the CBA to the arbitrator. Furthermore, questions of falsely citing contract violations merely for the purpose of elevating a complaint to grievance status is also a question left to the arbitrator. The Court concluded that the Union’s right to arbitration was limited to the scope of Grievance 10-02 and that the Union’s complaint was limited to Grievance 10-02. The arbitrator need not consider issues outside the scope of Grievance 10-02. Thus, the district court did not err in ordering Albemarle to arbitrate Grievance 10-02. The Court affirmed.

The United States Court of Appeals for the Fifth Circuit held that the district court erred when it concluded that UPS’s CBA required Title VII claims to be brought under the CBA’s grievance process. Background In Amber Ibarra v. United Parcel Service, No. 11-50714 (5th Cir. Sept. 13, 2012), Amber Ibarra worked as a package car driver for the United Parcel Service (“UPS”), but was terminated from her job after she lost control of her van and struck a telephone pole while delivering packages. Ibarra filed a grievance under her union’s collective bargaining agreement (“CBA”), claiming that her termination was unjust. According to Article 51 of the CBA, Ibarra first had a local hearing and her discharge was upheld. She then had an evidentiary hearing before the Southern Regional Area Parcel Grievance Committee which also upheld her termination. Ibarra then filed a Title VII action alleging sex discrimination with the district court. UPS filed three motions for summary judgment. The second motion argued that UPS was entitled to summary judgment on two grounds, including that the grievance procedure established in the CBA provided Ibarra’s exclusive remedy for her Title VII sex discrimination claim and Ibarra failed to exhaust that remedy by failing to assert sex discrimination by UPS in the grievance process. The district court agreed with UPS and granted summary judgment. Fifth Circuit On appeal, Ibarra contended that the district court erred in finding that the CBA explicitly provided that statutory discrimination claims are subject to the grievance process. The Fifth Circuit agreed. The Court applied Supreme Court precedence from Alexander v. Gardner-Denver and 14 Penn Plaza LLC v. Pyett.The Court reasoned that in Gardner-Denver, the Supreme Court recognized that employees have separate statutory and contractual rights. However, the Court also acknowledged that Penn Plaza subsequently tailored the suggestion in Gardner-Denver that arbitral procedures are inadequate to address statutory discrimination claims. The Penn Plaza Court held that a CBA that clearly and unmistakably requires union members to arbitrate certain statutory claims is enforceable as a matter of federal law. The Court then examined the UPS’s CBA to see whether it clearly and unmistakably required union members to submit Title VII claims to the CBA’s grievance process. Reviewing both Article 51 and Article 36 of the CBA, the Court concluded that the CBA contained no express waiver of judicial forum for claims brought pursuant to Title VII. The Court then supported its conclusion by citing precedence from other Supreme Court cases and cases from other Circuit Courts of Appeals. Because the CBA did not clearly and unmistakably waive a union member’s right to bring a Title VII claim in a federal judicial forum, the Court held that the district court erred in concluding that the CBA required Ibarra to submit her Title VII claim under the CBA’s grievance process. The grant of summary judgment was vacated and the case remanded for further proceedings.

Professor S.I. Strong, from the University of Missouri School of Law (and a friend of this blog) has posted on SSRN the book chapter entitled “Monism and Dualism in International Commercial Arbitration: Overcoming Barriers to Consistent Application of Principles of Public International Law, to be published in “Basic Concepts of Public International Law: Monism and Dualism,” edited by Marko Novakovic, Forthcoming, University of Missouri School of Law Legal Studies Research Paper No. 2012-39. Here is the abstract: Although monism and dualism are central tenets of public international law, these two principles are seldom, if ever, considered in the context of international commercial arbitration. This oversight is likely due to the longstanding assumption that international commercial arbitration belongs primarily, if not exclusively, to the realm of private international law. However, international commercial arbitration relies heavily on the effective and consistent application of the New York Convention and other international treaties, and must therefore be considered as a type of public international law. This chapter considers the principles of monism and dualism in international commercial arbitration and identifies a number of ways in which international commercial arbitration can overcome some of the practical and theoretical problems associated with improper or ineffective incorporation of international law into the domestic realm. In so doing, this chapter provides some useful insights not only regarding the operation of the international arbitral regime but also regarding other areas of public international law. This chapter can be downloaded (for free) here. Other scholarly papers by Professor S.I. Strong are here.