S.I Strong, Associate Professor of Law at the University of Missouri and contributor to this blog, wrote recently the interesting article International Commercial Arbitration: Special Skills, Special Sources, American Review of International Arbitration, Vol. 20, No. 2, 2010. Professor Strong discusses practical issues confronting young attorneys in international commercial arbitration. Here is an excerpt: I. INTRODUCTION International commercial arbitration is an advocacy-oriented endeavor, with parties engaging particular lawyers precisely because the parties believe that their chance of success increases proportionally with the skill and experience of their advocates. Clients are not alone in this perception of expertise – arbitrators and lawyers have also indicated that a good advocate makes a material difference in the outcome of a dispute. Given the central role that advocacy plays in arbitral success, it is ironic how little practical issues are discussed in legal scholarship. Instead, journals and texts are filled with doctrinal research, with other forms of inquiry, such as theoretical analysis and empirical studies, appearing to a lesser extent. While it is true that some pieces exist on best practices in advocacy, they appear most frequently in practitioner-oriented books or periodicals, rather than in the more rigorous academic journals, and tend to focus nearly exclusively on oral skills. Discussions concerning advocacy in international commercial arbitration, particularly regarding research and writing, are particularly sparse. Some may say there is little need for scholarly work regarding written advocacy because lawyers obtain the necessary skills through other means, such as law school, continuing legal education and mentorship. While this may be true of domestic litigation skills, it is not the case with respect to international commercial arbitration, where traditional methods of practical training are minimal at best and non-existent at worst. The situation is particularly dire with respect to matters concerning research sources and methodologies. This is highly problematic, since the legal authorities used in international commercial arbitration are unique, and newcomers to the field often do not know that certain materials exist or how to find them. This puts inexperienced lawyers at a distinct disadvantage, since one cannot build a solid legal argument without the underlying authorities. Furthermore, the best written submissions in this area of law adopt a purposeful blend of common-law and civil-law techniques. Any advocate who is unaware of how lawyers from different systems view legal authority will be unable to craft arguments that demonstrate the kind of sophistication and complexity that are the hallmarks of a good international practitioner. Again, this puts newcomers to the field at a comparative disadvantage. Fortunately, it is relatively easy to remedy these problems by increasing the cross-cultural dialogue about the different strategies that can be used to produce exemplary written submissions in international commercial arbitration. Doing so will help preserve the distinctive aspects of this area of law and ensure that the process remains as straightforward and cost-effective as possible by avoiding inappropriate legalism based on national court practices. This article attempts to fill this gap in the literature by proceeding as follows. First, section II defines the scope of the problem, beginning with the likely reasons behind the dichotomy between doctrinal and practical education and scholarship. This portion of the article also explains why it is important that experts in international commercial arbitration provide guidance on best practices in legal research. Section III provides the first step toward increasing access to the necessary authorities and developing the necessary practical skills by describing how experienced advocates and arbitrators research and present legal arguments in international commercial arbitrations. Section IV concludes the article by identifying a number of areas regarding research and written advocacy that could benefit from increased attention from academics and scholar-practitioners in the international arbitral community. You may download the full article (for free) here. Other papers by Dr. Strong are here. Technorati Tags: ADR, law, arbitration
Continue reading...On July 21, 2010 the Supreme Court of Wisconsin decided Sands v. Menard, Inc., 2008AP1703. The employment discrimination case made national headlines because an arbitral panel awarded Sands, former general counsel for Menard, $1.6 million which included $900,000 in punitive damages. Furthermore, the panel ordered Sand’s reinstatement to her position with a salary of $175,000 per year plus a bonus (she previously earned $70,000 per year). The district and appellate courts affirmed confirmation of the arbitral award. Read our discussion of the appellate court decision here. The Wisconsin Supreme Court held that the arbitration panel exceeded its powers because the reinstatement award was in violation of strong public policy. The court stated, “[i]n this case, we conclude that by accepting reinstatement, Sands would be forced to violate her ethical obligations as an attorney and the use of criminal attorneys for DWI could help people with criminal cases against them. The court vacated the reinstatement portion of the award and remanded the case to the circuit court for determination of an appropriate award of front pay. Under employment discrimination laws, front pay is a substitute for reinstatement. In the dissent, Chief Justice Shirley Abrahamson said the decision undermines the arbitration process and improperly extends the authority of the courts. He noted that “[i]t may well be that in some cases a direct conflict will arise between the mostly state laws governing the attorney-client relationship and the mostly-federal statutes and case law governing employment discrimination, including the provisions for reinstatement.” He added, however, that “the place to resolve novel and emerging questions of law is not in a court’s review of a private arbitration award.” Related posts: Court says Menard attorney should not get job, Scott Bauer, Associated Press (July 21, 2010) Citing Public Policy, Wis. High Court Bars Reinstatement of Fired Menard Lawyer, Debra Cassens Weiss, ABA Journal News (July 21, 2010) Counsel can’t be reinstated: Front pay is proper remedy for discrimination, David Ziemer, Wisconsin Law Journal (July 26, 2010) Technorati Tags: arbitration, ADR, law
Continue reading...The Singapore International Arbitration Centre (SIAC) released its new arbitration rules which took effect on July 1, 2010. The new rules bring the SIAC more in line with the rules at other arbitral institutions. Among the new features are the availability of an expedited procedure when the amount in dispute does not exceed $5 million, when the parties agree, or in cases of exceptional urgency. The rules also provide for the ability to appoint an emergency arbitrator to seek interim relief before the tribunal is formed. Click here for the SIAC Rules of 2010. Technorati Tags: ADR, law, arbitration
Continue reading...The following bills relating to alternative dispute resolution were introduced by the 111st U.S. Congress. The session will last from January 3, 2009 until January 3, 2011. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action. Stay tuned to Disputing for more legislative updates! Bills that passed: The Agricultural Credit Act of 2009 would reauthorize state agricultural mediation programs under title V of the Agricultural Credit Act of 1987. H.R. 3509 and Status; S.1375 and Status. H.R. 3509 has been passed by the Senate and House and now awaits the signature of the President before becoming law. The Restoring American Financial Stability Act of 2010 (a.k.a. the “Dodd-Frank Wall Street Reform and Consumer Protection Act”). The act, among other things, would give the SEC the power to ban or limit mandatory arbitration in certain agreements. House Versions: H.R. 4173 and Status; Senate Versions: S.3217 and Status. H.R. 4173 was signed into law (Public Law No: 111-203) on July 21, 2010 . The final version is here. “An Act Making Appropriations for the Department of Defense for the Fiscal Year Ending September 30, 2010, and for Other Purposes” contains an amendment (the “Franken Amendment“) that bans funds to defense contractors who require workers (employees and independent contractors) to arbitrate “any claim under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” (H.R. 3326 ; Amendment; Senator Franken’s video is here) H.R. 3326 was signed by President Barack Obama and became law (Pub. L. 111-118) on December 19, 2009. Link to the final version is here and major actions are here. Also, find guest-posts by F. Peter Phillips here and here. Implementation. On May 19, 2010 the Department of Defense issued an interim rule implementing the Franken Amendment with request for comments. Comments should be submitted before July 19, 2010. Read more here. The Consolidated Appropriations Act of 2010 (H.R. 3288) a spending bill signed into law by President Obama on December 16, 2009, (P. L. 111-117) includes a provision under which owners of automobile dealerships can use a binding arbitration process administered by the American Arbitration Association (AAA) to seek reinstatement if their businesses were closed by automobile manufacturers during the implementation of the Emergency Economic Stabilization Act of 2008. Read our posts here and here. Read more at the AAA website. Bills still pending: The Arbitration Fairness Act of 2009 would ban mandatory pre-dispute arbitration in employment, consumer, and franchise contracts. Senate version: S. 931 and Status. House version: H.R. 1020 and Status. The Employee Free Choice Act of 2009 would amend the National Labor Relations Act to require first mediation and then binding arbitration if both parties are unable to reach an agreement within a certain time frame. Senate version: S. 560 and Status. House version: H.R. 1409 and Status. The Payday Loan Reform Act of 2009 would amend the Truth in Lending Act to establish additional payday loan requirements to protect consumers. This bill prohibits a mandatory arbitration clause that is “oppressive, unfair, unconscionable, or substantially in derogation of the rights of consumers.” H.R. 1214 and Status. The Fairness in Nursing Home Arbitration Act of 2009 would render pre-dispute arbitration clauses in nursing home contracts unenforceable. Senate version: S. 512 and Status. House version: H.R. 1237 and Status. The Mortgage Reform and Anti-Predatory Lending Act of 2009 would amend the Truth in Lending Act of 1968. The bill provides that “[n]o residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer, other than a reverse mortgage may include terms which require arbitration of any other nonjudicial procedure as the method for resolving any controversy.” H.R. 1728 and Status. The Labor Relations First Contract Negotiations Act of 2009 would amend the National Labor Relations Act to require the arbitration of initial contract negotiation disputes. H.R. 243 and Status. The Consumer Fairness Act of 2009 would treat arbitration clauses which are unilaterally imposed on consumers as an unfair and deceptive trade practice and prohibit their use in consumer transactions. H.R. 991 and Status. The Preserving Homes and Communities Act of 2009 would require certain mortgagees to make loan modifications, establish a grant program for state and local government mediation programs, and create databases on foreclosures. S. 1731 and Status. The Conflict Resolution and Mediation Act of 2009 would provide assistance to local educational agencies for the prevention and reduction of conflict and violence. H.R. 4000 and Status. The Department of Peace Act of 2009 would establish a Department of Peace that would take a proactive, strategic approach in the development of policies that promote national and international conflict prevention, nonviolent intervention, mediation, peaceful resolution of conflict, and structured mediation of conflict. H.R.808 and Status. The Rape Victims Act of 2009 provides that employment-related arbitration agreements shall not be enforceable with respect to any claim related to a tort arising out of rape. S. 2915 and Status. The Foreclosure Mandatory Mediation Act of 2009 would require lenders of loans with Federal guarantees or Federal insurance to consent to mandatory mediation. S. 2912 and Status. The Foreclosure Mandatory Mediation Act of 2010 would require the mortgagee of certain one- to four-family residences, as a prerequisite to a foreclosure proceeding to conduct a one-time mediation with the affected mortgagor and a housing counseling agency. H.R. 4635 and Status. The Ending Defensive Medicine and Encouraging Innovative Reforms Act of 2009 provides for reforms of health care lawsuits by, among other things, requiring a court-appointed expert to review a heath care lawsuit for merits. H.R. 4039 and Status. 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.