In 1978, former President Jimmy Carter established the National Commission for the Review of Antitrust Laws and Procedures to recommend ways to expedite litigation, improve remedies, and review certain immunities and exceptions. As the late Arthur Austin, my former antitrust law professor at Case Western Reserve University School of Law, observed, however, the commission was… Read more »
The arbitration of mass claims is now available through all of the major ADR providers. The American Arbitration Association (AAA), JAMS, FedArb and CPR have developed special rules to govern the resolution of such claims. A bit of history is warranted. Most consumer contracts require that all disputes be resolved by arbitration. These contracts generally… Read more »
Arbitration, of course, exists by contractual design. For this reason, considerable thought should be given to the terms of any contractual provision that provides for the resolution of disputes by arbitration. The parties are free to design an arbitration provision that forecloses certain issues that could arise once there is a dispute that needs to… Read more »
Ten years ago if you asked us what we thought of arbitration we probably would not have had too many positive things to say. As former general counsels, we approached commercial disputes that could not be resolved via negotiation or mediation as bound for court. Not that we welcomed the idea of litigation, but we… Read more »
California is well positioned as an arbitration venue, particularly for U.S. to Asia disputes, due to its geography, leading universities, experienced arbitrators, and capable judiciary. 1. California’s reputation and how to improve it. You have mentioned that California was, and in some quarters still is, viewed by Europeans as the wild, wild, West with out-of-control… Read more »
The international arbitration community has publicly embraced the expectation that climate-change-related disputes submitted to arbitration will increase exponentially over the coming decade. Arbitral institutions and individual arbitrators, law firm practitioners, and academics have all forecasted that cases related to or impacted by energy production and distribution (both fossil fuel and alternative), supply chain issues and… Read more »
A recent U.S. Court of Appeals for the Ninth Circuit decision in Patrick v. Running Warehouse LLC offhandedly recognized an unusual and extremely important aspect of California law that the international arbitration community should keep in mind. And while the reminder raises a host of choice of law questions, it ultimately may make California law… Read more »
FedArb experts argue Chevron deference should be preserved Overruling it would empower nonexperts, create uncertainty The US Supreme Court is considering whether to overrule or severely cut back on what is known as Chevron deference. It would be a mistake for the court to do that. Federal agencies such as the Federal Energy Regulatory Commission,… Read more »
Preparing an effective mediation statement is a critical part of the mediation process. The mediation statement is often the document that gives the mediator his or her first impression of counsel and the client. It is particularly important when the mediator does not hold a joint session but proceeds immediately to caucuses. The purpose of… Read more »
A valuable preparation option for any high-stakes arbitration is the mock arbitration, which serves many of the same purposes as mock trials and jury research for court cases. Mock arbitrations serve to: Identify strengths and weaknesses in a party’s case and arguments; Show where and how case presentation and cross examination can be improved; Help… Read more »
Practitioners often wrestle with the question “when is the best time to undertake mediation of a dispute?” Is it before litigation has ensued although the controversy has arisen? Is it at the outset of the litigation once the complaint has been filed? Is it only after there has been some discovery, an exchange of documents… Read more »
The very reason for mediation is that the parties are in dispute, whether it a broken business contract, frustrated joint venture partners, a terminated executive, a securities class action, insurance counterparties or mass tort claims. My job as a mediator is to search for and bring the parties to a solution. Everything I do from… Read more »
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