Last week, the U.S. Supreme Court denied cert to Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 (Tex. 2011). In Nafta Traders, the Texas Supreme Court had held that the Federal Arbitration Act (“FAA”) did not preempt enforcement of an agreement for expanded judicial review of an arbitration award enforceable under the Texas Arbitration Act (“TAA”). Such enforcement was consistent with the FAA’s purpose of ensuring that private arbitration agreements were enforced according to their terms. See Texas Supreme Court Declines to Follow Hall Street in Arbitration Case: Nafta Traders, Inc. v. Quinn, May 13, 2011. Technorati Tags: arbitration, ADR, law

In American Home Assurance Company v. Cat Tech, L.L.C., No. 10-20499 (5th Cir. Oct. 5, 2011) Ergon Refining, Inc. (“Ergon”) hired Cat Tech, L.L.C. (“Cat Tech”) to service a hydrotreating reactor at its Mississippi refinery. In the course of servicing the reactor, Cat Tech damaged several of the reactor’s components. The matter was submitted to arbitration and the arbitrators awarded Ergon almost $2 million, including damages, prejudgment interest, attorney’s fees, and an offset for the unpaid contract price. Cat Tech sought indemnification under two insurance policies: (1) a commercial general liability policy issued by American Home Assurance Company (“AHA” ), and (2) a commercial umbrella policy issued by National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“NUFIC”). AHA and NUFIC brought action against insured servicing company seeking declaratory judgment that they did not have duty to indemnify company for damages awarded to Ergon in arbitration. The insurers argued that the “your work” exclusion found in both policies precluded coverage for damage to the reactor. The “your work” exclusion precludes coverage for: “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.” This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. The policies define “your work” as “(1) [w]ork or operations performed by you or on your behalf; and (2) [m]aterials, parts or equipment furnished in connection with such work or operations.” The District Court found the insurers had no duty to indemnify Cat Tech based on that exclusion. Cat Tech appealed. The Fifth Circuit explained that the following three categories of property damage were potentially at issue: (1) property damage to the specific parts of Ergon’s reactor upon which Cat Tech performed defective work, (2) property damage to those parts of the reactor upon which Cat Tech performed non-defective work but were nonetheless damaged, and (3) damage to other Ergon property, upon which Cat Tech did not work. The Court concluded that the “your work” exclusion precluded coverage for the first two categories, but not the third. The court found that the arbitration award was far too vague in its description of the damage and how the damage related to Cat Tech’s work. Accordingly, the court reversed the summary judgment award and remanded the case for the District Court to conduct additional fact-finding to determine whether the damage was limited to those components upon which Cat Tech worked or instead included components unrelated to Cat Tech’s operations. Technorati Tags: ADR, law, arbitration  

The Texas Department of Transportation won recently a domain name dispute for the domain name DontMessWithTexas.com. As readers may know, the Department uses the slogan Don’t Mess with Texas in its anti-litter campaign. Respondent, Privacy Protect.org / Domain Admin, did not submit a response. Under Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Resolution Policy (the “Policy”) the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: The domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights. The panel found that the Respondent’s domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s mark, omitting only an apostrophe and the spaces between words, and adding the generic top-level domain (“gTLD”) “.com”. Respondent has no rights or legitimate interests in respect of the domain name. The Panel concluded that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services under the Policy or a legitimate noncommercial or fair use under Policy. The domain name has been registered and is being used in bad faith. The panel reasoned that “Respondent’s operation of a confusingly similar domain name will likely lead some Internet users to visit Respondent’s website, when they intended to visit Complainant’s. Inevitably, a portion of these misdirected users will access the competing links displayed on Respondent’s site. ” The Panel found that this type misdirection constitutes use in bad faith under Policy. The panel found that the three elements of the Policy were satisfied and ordered that the <dontmesswithtexas.com> domain name be transferred to the Complainant. See Texas Department of Transportation v. PrivacyProtect.org Claim Number FA1108001402743. Technorati Tags: ADR, law, arbitration

The International Chamber of Commerce (“ICC”) will host its 9th Annual Miami Conference in Miami on Nov. 6, 2011. The event will launch the new ICC Rules of Arbitration, which have been revised to take into account new developments in international arbitration practice. Read more about the rules here. You may download the conference program here. Online registration is here. Technorati Tags: arbitration, ADR, law