Karl and I have written about arbitral awards and their potential appealability, and we’ve blogged on the subject several times (most recently here). Here in the Fifth Circuit, it is permissible to write a provision for appeal into an arbitration clause, allowing for judicial review of an arbitral award on a basis other than the extremely limited basis provided by the Federal Arbitration Act or the Texas Arbitration Act. However, not all jurisdictions allow parties to draft judicial review of arbitral awards into their contracts. This morning, the U.S. Supreme Court granted cert in a case which should settle this issue. For more on the case itself, see the always thorough Supreme Court Blog. In the meantime, we will be following this case (Hall Street Associates vs. Mattel) with baited breath. Technorati Tags: arbitration, ADR, law
Continue reading...On Wednesday, the Fifth Circuit released an opinion confirming an arbitral award (link is to .pdf file) in a dispute between two companies who had contracted to share in the duties of performing corrective laser eye surgery. The party that lost the arbitration sought vacatur on two grounds allowed in FAA jurisprudence: on the statutory ground that the arbitrator exceeded his authority, and on the non-statutory ground that the arbitrator manifestly disregarded the law. The Fifth Circuit, like the District Court before it, confirmed the award. While the opinion is certainly consistent with Fifth Circuit jurisprudence in this area, it is still helpful as a recent and cogent explanation of the analysis on these two fairly common grounds parties assert when attempting to appeal arbitral awards. Interestingly, the arbitral award being challenged was apparently a non-reasoned award, something to which both parties agreed at the outset of the case. Subsequently, one party apparently changed its mind, but the arbitrator still refused to issue a reasoned award. Despite the apparent brevity of the award itself, the Fifth Circuit reviewed the record in the case and noted that “the arbitrator was quite aware of the factual nuances of the case, the identities of the parties, and the flow of money.” The arbitral hearing, after all, lasted three days. All that being the case: We will not second-guess multiple, implicit findings and conclusions underpinning the award. We do not decide if the award was free from error. We decide only that it is not the kind of extraordinary award that ineluctably leads to the conclusion that the arbitrator was ‘dispensing his own brand of industrial justice.’ There are advantages and disadvantages in contracting for private resolution of a dispute announced without explanation of reason. When a party does so and loses, federal courts cannot rewrite the contract and offer review the party contracted away. In other words, it remains clear that some sort of affirmative showing that an arbitrator refused to consider evidence seems to be required to prevail on a “manifest disregard” challenge to an arbitral award in the Fifth Circuit. American Laser Vision v. The Laser Vision Institute, ___ F3d. ___ (5th Cir. 2007) (Cause No. 06-10260) Technorati Tags: arbitration, ADR, Fifth Circuit, law
Continue reading...The Eastern District of Texas blog is one of our favorites. Today, Michael Smith posted about a district judge’s decision to refuse to compel arbitration on the basis that the party seeking to arbitrate had waived that right by participation in the underlying litigation. We’ve discussed waiver as a defense to arbitration before. It will be interesting to see what, if anything, comes of this. Technorati Tags: arbitration, ADR, law
Continue reading...The Texas Supreme Court handed down six opinions today; none of them has anything to do with arbitration. Sadly, we’re too busy to discuss any of them at length. We would note, however, that one of the opinions discusses the economic loss rule, and how one goes about asserting it in Texas. Technorati Tags: litigation, Texas Supreme Court, 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.