Professor S.I. Strong (University of Missouri School of Law) has posted Mass Procedures in Abaclat v. Argentine Republic: Are They Consistent with the International Investment Regime?, 3 Yearbook on International Arbitration_ (forthcoming 2012) on SSRN. Here is the abstract: Abaclat v. Argentine Republic is the first time that a mass claim (in this case, 60,000 Italian bondholders) has been brought in an investment arbitration. This Article considers the propriety of those proceedings from a unique perspective, namely that of regulatory law. In so doing, this Article considers the regulatory nature of class, mass and collective proceedings as well as the regulatory purposes of the investment treaty regime so as to determine whether and to what extent the Abaclat majority acted in accordance with both principles. The full article may be downloaded (for free) here. Other scholarly papers by Professor S.I. Strong are here.

The California Court of Appeal held that class action waivers are enforceable in California employment arbitration agreements. In Iskanian v. CLS Transportation Los Angeles, LLC, Arshavir Iskanian worked as a driver for defendant CLS Transportation Los Angeles, LLC (“CLS”) from March 2004 to August 2005. In December 2004, Iskanian signed a “Proprietary Information and Arbitration Policy/Agreement” (arbitration agreement) that contains a class and representative action waiver. In August, 2006, Iskanian brought a class action and a representative action under California’s Private Attorney General Act (“PAGA”) for various wage and hour violations. The California Court of Appeal for the Second District held that the arbitration agreement and class action waiver were enforceable. Citing AT&T Mobility LLC v. Concepcion, the court held that the Federal Arbitration Act (“FAA”) preempts any state law prohibiting class action waivers in arbitration agreements. The court also held that the arbitration agreement was not unconscionable under Code Civ. Proc., § 1281.

The ABA Section of Dispute Resolution will host its 7th Annual Training Institute on June 21-23, 2012 in Philadelphia. Who Should Attend? Attend if you are seeking a career move to arbitration. Attend if you are an experienced arbitrator or advocate wanting to better understand recent issues in arbitration and improve your skills. Attend if you are a litigator wanting to better utilize arbitration and gain insights about how arbitrators approach their task. Find the complete schedule here. Register here.

by Holly Hayes Grants distributed by the Health and Human Services (HHS) Agency for Healthcare Research and Quality (AHRQ) are moving forward with programs to address medical liability according to the Modern Healthcare April 2012 issue. See more here Beth Israel Deaconess Medical Center received a planning grant of almost $274,000 to institute a program they call Disclosure, Apology and Offer. The program “consists of disclosing when adverse events occur, investigating why they happened, sharing information with patients and their families and then offering financial compensation and bypassing the court system”. Dr. Alan Woodward, chairman of the Massachusetts Medical Society Committee on Professional Liability says, “malpractice cases in Massachusetts take five and a half years to resolve. Of the dollars physicians pay for liability premiums, only 30% goes to patients, with the rest covering insurance company overhead, attorney and expert witness fees and other court costs”. He added, “You can do a root-cause analysis at relatively low cost and put the findings on the table.” The University of Illinois at Chicago received a demonstration grant to expand its disclosure, apology and offer program to other area hospitals. Their program, called Seven Pillars, has been in place since 2006 and has resulted in reduction in malpractice claims and premiums. Most importantly, the investigation of adverse events has resulted in fewer incidents of patient harm. The New York State Unified Court System received a grant for a “judge-directed negotiation program” aimed at offering an “opportunity to settle before litigation gets into full swing”. Participating judges attended a three-day education session that included medical legal issues and mediation techniques. These programs are alternatives to tort reforms or special healthcare courts. Dr. Woodward believes it will be a long time before either of those alternatives is adopted in Massachusetts. 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.