Our blog contributor professor S.I.Strong has just published the article “Class and Collective Relief in the Cross-Border Context: A Possible Role for the Permanent Court of Arbitration.” The piece compares the benefits of large-scale litigation and large-scale arbitration in the cross-border context, and considers whether there is a role that the Permanent Court of Arbitration can play in resolving mass disputes of this type. Here is the abstract: Collective redress of mass legal injuries is a topic of concern in numerous countries around the world, with cross-border disputes giving rise to particular problems due to actual and perceived clashes of law, policy and practice. This article considers whether arbitration might be preferable to litigation as a means of resolving large-scale international disputes. After considering how each procedure handles issues involving jurisdiction, conflict of laws, procedure and enforcement, the article concludes that class and collective arbitration may be in many ways superior to similar actions in court. The article ends with a discussion of the role that the Permanent Court of Arbitration might play in the development of this area of law. This article appears in 23 The Hague Yearbook of International Law 2010, 113 (2011). Technorati Tags: law, ADR, arbitration  

The United States Court of Appeals for the Fifth Circuit held that a district court lacked subject matter jurisdiction to hear a petition to compel arbitration pursuant to Section 4 of the Federal Arbitration Act (“FAA”). In Volvo Trucks N. America, Inc. v. Crescent Ford Truck Sales, Inc. No. 09-30782, (5th Cir. Jan. 5, 2012) Crescent Ford Truck Sales, Inc. (“Crescent”) operated a Volvo dealership pursuant to a Dealer Sales and Services Agreement (“Dealer Agreement”) with Volvo Trucks North America, Inc. (“Volvo”). When Volvo decided not to renew its Dealer Agreement with Crescent, Crescent initiated a state agency petition to prevent non-renewal under state law. Volvo sought to compel arbitration according to the terms of the Dealer Agreement and Crescent argued that the federal district court lacked jurisdiction over the state-law dispute. The district court found an independent basis for federal jurisdiction on one of Volvo’s claim that questioned whether the arbitration agreement was enforceable. Crescent appealed. The Fifth Circuit stated that Vaden required a “look through” approach to determine whether a Section 4 petition is predicated on an action arising under federal law. See Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262 (2009). Applying Vaden, the Fifth Circuit assumed the absence of the arbitration agreement and then determined whether jurisdiction exists under Title 28. The Fifth Circuit concluded that the district court lacked subject matter jurisdiction to hear Volvo’s petition to compel arbitration pursuant to Section 4 of the FAA. Accordingly, the Fifth Circuit vacated and remanded with instructions to dismiss the case based on a lack of subject matter jurisdiction. Technorati Tags: ADR, law, arbitration  

By Holly Hayes In our series about Accountable Care Organizations (ACOs), physician management emerges as an area worthy of better understanding. Marc Bard and Mike Nugent make five observations about the “management of physicians and the achievement of outcomes” in their book “Accountable Care Organizations”: While greater clinical integration can be achieved without economics/financial integration, achieving a meaningful clinical integration is difficult without some economic incentives to support it. Greater integration is a key driver of improved clinical outcomes, economic performance, and, perhaps most important, provider satisfaction. Migrating from a loosely coupled to a tightly coupled management system is extremely difficult and takes significat investment of time, energy, and financial and social capital. Transforming care enough to significantly improve outcomes and resource utilization is much more difficult than achieving “clinical integration” at least as defined by the Federal Trade Commission. The emerging generation of physicians is more comfortable with standardization and more capable of practicing medicine as a true team endeavor. In future posts, we will explore some strategies for successful physician management and moving from a loosely to a tightly coupled management system. For our other posts on ACOs, see here, here, here and here. We welcome your thoughts on this topic. Technorati Tags: Healthcare Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.

We found this interesting story in Texas Lawyer about a mediated settlement agreement: For the first time in 25 years, the State Bar of Texas Family Law Council has filed an amicus curiae brief in an appeal pending before the Texas Supreme Court. The council submitted the brief on Jan. 9, urging the Supreme Court to grant a mandamus to force a family law judge to approve a mediated settlement agreement (MSA) in a custody dispute. The judge in that suit, 309th District Judge Sheri Dean of Houston, refused to approve the MSA between Stephanie Lee and Benjamin Jay Redus, on the ground it was not in the best interest of a child. The council argues in the amicus that the judiciary should not create common-law exceptions to the enforceability of MSAs. Read the rest of the article here.