Juris Publishing has issued a wonderful, concise and revelatory volume edited by arbitration gurus Larry Newman and Ben Shepard. Take the Witness is a collection of do’s, don’ts, and real-life examples that thread the fine needle of cross-examination before a panel of international arbitrators — many of whom are unfamiliar with, and perhaps even skeptical of, this common-law tradition.
Two recent court decisions have bubbled through the cyber-community of ListServes and blogs. Both address attorney disqualification — one in the context of a mediation and the other in the context of an arbitration. The latter is featured here and the former will be described in a subsequent posting.
In Northwestern National Insurance Company v. Insco, Ltd, 11 Civ. 1124 (SAS) (S.D.N.Y. October 3, 2011), the court granted a motion to disqualify the law firm of Freeborn & Peters LLP from continuing to represent its client Insco in an ongoing arbitration. In deciding the motion the court (a) found that it, and not the arbitration Panel, was the proper forum for such relief, and (b) determined that Freeman’s solicitation, receipt, study and use of approximately 130 e-mails between the Panel members, some containing deliberations of the Panel, was an egregious breach of its ethical duties, meriting disqualification. Read more »
Prof. William “Rusty” Park has published an article in the September 2011 issue of the Journal of International Dispute Settlement titled “Arbitration in Autumn.” Although the meat of the article is analyses of the French case Caribbean Niquel v. Overseas Mining and the American case Stolt-Nielsen v. AnimalFeeds, the bookends of the article are cautions that only an arbitrator of Prof. Park’s experience could offer.
I was taught that the chief duty of an arbitrator is to render an enforceable award. Put crudely, that’s the product the parties have agreed to buy: a binding and final resolution to the dispute that obviates entirely the need to enter a judicial forum. Rusty Park reminds us that an enforceable award is a necessary but not sufficient expectation from an arbitrator. Read more »
Prof. Thomas J. Stipanowich of Pepperdine University School of Law has come out with a smashingly responsible analysis of the most recent Supreme Court arbitration cases. In his article, forthcoming in the American Review of International Arbitration, Stipanowich suggests that the three recent cases — Stolt-Nielsen, Rent-A-Center and AT&T Mobility – constitute a new “trilogy” of the stature of the historic Steelworkers cases in 1960. But he urges that the recent trilogy of cases are flawed in reason, devoid of emprical grounding, and potentially harmful to the development of reasoned and just public arbitration policy.
Stipanowich is critical of the Court’s analysis, asserting rather than deducing “federal substantive law” under the Federal Arbitration Act as the basis for its outcomes. He suggests that these references to such “substantive law” are “divined” or “discerned” rather than being the product of clear legal analysis, and that the Court’s avowed strong public policy concern to enforce arbitration agreements at times leads to outcomes clearly at variance with the Act. Read more »