The World Intellectual Property Organization (WIPO) recently announced that the number of cybersquatting cases has reached an all time high. According to the report, in 2010, trademark holders filed 2,696 cybersquatting cases relating to some 4,370 domain names with the WIPO Arbitration and Mediation Center (WIPO Center) under the Uniform Domain Name Dispute Resolution Policy (UDRP). the UDRP has become accepted as an international standard for resolving domain name disputes outside the traditional courts. Read the 2010 WIPO report here. Technorati Tags: law, ADR, arbitration
Continue reading...Yesterday, the U.S. Supreme Court denied certiorari (No. 10-1213) to Trustmark Ins. Co. v. John Hancock Life Ins. Co., 631 F.3d 869 ( 7th Cir. 2011). The Seventh Circuit had held that an arbitration panel has authority to determine what a confidentiality agreement requires, when the agreement was closely related to an insurance arbitration that was already underway. The questions presented to the U.S. Supreme Court were: May a party be compelled to arbitrate a breach-of-contract claim when the contract contains no arbitration agreement (and indeed, when arbitration would make an arbitrator a judge of his own claimed breach of contract), because a different agreement between nonidentical parties contains an arbitration clause? Is it proper to overturn a preliminary injunction (restraining an arbitrator from sitting in judgment on his own alleged breach of a contract) on the ground that post-arbitration review under the Federal Arbitration Act would prevent irreparable harm? Technorati Tags: law, ADR, arbitration
Continue reading...As discussed last week, the 112th Congress is now contemplating the Arbitration Fairness Act of 2011. The Senate version was introduced by Sen. Al Franken on May 12, 2011 with 12 co-sponsors. Similarly, Rep. Johnson, Henry C. “Hank,” Jr. introduced the House version with 62 co-sponsors. The Arbitration Fairness Act of 2011 would ban mandatory pre-dispute arbitration clauses in employment, consumer, and civil rights cases. Senate version: S. 987; Status. House version: H.R. 1873; Status. Stay tuned! Technorati Tags: law, ADR, arbitration
Continue reading...The Supreme Court of Texas has held that the Texas General Arbitration Act (TAA) allows judicial review of arbitral awards by agreement beyond what the Federal Arbitration Act (FAA) allows. Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, Justice Willett, Justice Guzman, and Justice Lehrmann joined. Chief Justice Jefferson, joined by Justice Wainwright and Justice Lehrmann, issued a concurring opinion. Find links to the case briefs at the Supreme Court of Texas Blog’s Docked DB (here). Our previous post about this case is here. I. Background In Nafta Traders, Inc. v. Quinn, No. 05?07?00340 (Tex., May 13, 2011) Nafta, an international re-distributor of athletic apparel and footwear, challenged a $200,000 arbitration award to Quinn on her sex-discrimination and retaliation claims. An arbitration provision in the company’s employee handbook barred arbitration awards that contained reversible legal error or that applied a cause of action or remedy not expressly provided by law. However, the arbitration section did not indicate whether state or federal law would apply, providing only that “[a]ll proceedings shall be conducted in the City of Dallas, State of Texas.” Quinn argued that federal arbitration law controls, which, under the U.S. Supreme Court’s decision in Hall Street v. Mattel Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008) does not allow judicial review to be expanded by agreement beyond what the federal arbitration statute provides. Nafta asserted that the arbitrator had applied federal law to Quinn’s sex discrimination claim even though she had alleged only a violation of Texas law, and that the evidence did not support a finding of sex discrimination. The trial court confirmed the arbitration award and Nafta appealed. II. Dallas Court of Appeals Opinion The Dallas Court of Appeals, relying in Hall Street, held that “parties seeking judicial review of an arbitration award covered under the TAA cannot contractually agree to expand the scope of review and are instead limited to judicial review based on the statutory grounds enumerated in the statute.” (the opinion is here) Thus, the court of appeals affirmed the confirmation of the award. III. Texas Supreme Court: Majority Opinion The issues before the Texas Supreme Court were: Whether the TAA (like the FAA as interpreted in Hall Street) precludes an agreement for judicial review of an arbitration award for reversible error; and If not, whether the FAA preempts enforcement of such an agreement. The court explained that the TAA, like the FAA, lists specific grounds for vacating, modifying, or correcting an arbitration award, among them that the arbitrators exceeded their powers (FAA Section 10(a)(4) and TAA Section 171.088(a)(3)(A)). (read more here ) An arbitrator’s powers are determined by agreement of the parties. However, in the controversial Hall Street v. Mattel, the U.S. Supreme Court held that the grounds for vacatur are only those enumerated in Sections 10 and 11 of the FAA. The Texas Supreme Court stated, “we are unable to conclude that Hall Street‘s analysis of the FAA provides a persuasive basis for construing the TAA the same way.” The court held that TAA permits parties to agree to expanded judicial review of arbitration awards. The court also held that the FAA, as interpreted in Hall Street, does not preempt Texas law. IV. Texas Supreme Court: Concurring Opinion The concurring opinion focused on the trend of civil disputes increasingly being submitted to arbitration, instead of litigation: I write only to observe that our system is failing if parties are compelled to arbitrate because they believe our courts do not adequately serve their needs. If litigation is leaving because lawsuits are too expensive, the bench and the bar must rethink the crippling burdens oppressive discovery imposes. If courts have yet to embrace modern case-management practices, the Legislature should ensure that the justice system has resources to improve technology and to hire qualified personnel—two sure ways to improve efficiency. … As the Court does, I would affirm that right. Nevertheless, we must, in the future, address those aspects of our justice system that compel litigants to circumvent the courts and opt for private adjudication. Related Posts: GUEST-POST PART I | AT&T Mobility, LLC v. Concepcion and the Bright Side of the Force (May 2, 2011) GUEST-POST PART II| AT&T Mobility, LLC v. Concepcion and the Bright Side of the Force (May 2, 2011) Article | Are Arbitrators Above the Law? The ‘Manifest Disregard of the Law’ Standard (Feb. 8, 2011) Manifest Disregard Round-Up (Oct. 20, 2010) 2009 Developments in Arbitration Law: Manifest Disregard of the Law (Dec. 24, 2009) Tenth Circuit Decides Manifest Disregard of the Law Case and Imposes Sanctions Under 28 U.S.C. § 1927 for ‘Frivolous’ Attempt to Vacate Arbitration Award (Dec. 1, 2009) Fifth Circuit Confirms International Commercial Arbitration Award (Jun. 22, 2009) Disputing Guest Post: Hall Street Meets S. Maestri Place: What Standards of Review Will the Fifth Circuit Apply to Arbitration Awards Under FAA Section 10(a)(4) after Citigroup? (May 5, 2009) Dead? Alive? Matter of Opinion? (Dec. 4, 2008) Professor Alan Scott Rau Responds to Hall Street v. Mattel (Jun. 9, 2008) Professor Alan Scott Rau Gives Souter a C-minus (Jun. 5, 2008) Glen Wilkerson on Hall Street v. Mattel (Apr. 19, 2008) No Longer Can You Craft Your Own Arbitral Standard of Review (Mar. 26, 2008) [Hat tip to our friend Jeff Jury.] Technorati Tags: arbitration, ADR, law
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.