The Chartered Institute of Arbitrators (CIArb) has announced that the Rt Hon Lord Dyson, Justice of the Supreme Court of the UK and formerly a leading practitioner in international commercial arbitration, will be the after dinner speaker at CIArb’s annual Gala Dinner in London on Tuesday 27 September, 2011. The dinner will celebrate the end of the first day of CIArb’s Costs of International Arbitration conference, where experts from the field will explore the factors driving up costs as well as examining the full results of CIArb’s recent survey. Lord Dyson said: ‘I am delighted that CIArb has invited me to speak at the dinner celebrating what I think is a very timely and relevant conference. The cost of international arbitration is an extremely important issue for everyone involved in that field. I am looking forward to having the opportunity to meet and speak to so many high profile and respected colleagues from around the world.’ Sponsored by Alvarez & Marsal, this two-day conference in London on 27-28 September will examine the distribution of the costs of commercial arbitration to provide vital information for legal representatives, commercial directors and arbitrators. The discussion will be informed by the results of CIArb’s survey, which has collected detailed data from practising arbitrators and lawyers worldwide on the costs of international arbitrations under different rules and jurisdictions. An array of distinguished speakers will contribute to the debate, including Doug Jones, President of CIArb; Peter J. Rees, Royal Dutch Shell plc; David Brynmor Thomas, 39 Essex Street; Teresa Giovannini, LALIVE and Constantine Partasides, Freshfields Bruckhaus Deringer LLP. The Hon Mr Justice David Steel of the Commercial Court will be the lunchtime speaker. CIArb’s Costs of International Arbitration Conference takes place at the Millennium Gloucester Hotel, South Kensington, London, UK, on Tuesday 27 – Wednesday 28 September 2011. For more information or to book a place click here. Technorati Tags: arbitration, ADR, law

The following bills relating to alternative dispute resolution were introduced by the 112nd U.S. Congress. The session convened in Washington, D.C. on January 3, 2011 and will end on January 3, 2013. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action. Arbitration Fairness Act of 2011. Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, or civil rights dispute. S.987; Status. H.R.1873; Status. Labor Relations First Contract Negotiations Act of 2011. Amends the National Labor Relations Act to require mediation and, if necessary, binding arbitration of initial contract negotiation disputes. H.R.129; Status. Surface Transportation Board Reauthorization Act of 2011. Certain appropriations for the Surface Transportation Board, including requiring the Board to establish a binding arbitration process to resolve rail rate, practice, and common carrier service disputes. S.158; Status. Endocrine Disruptor Screening Enhancement Act of 2011. “In the event of any dispute about an appropriate share or a fair method of determining an appropriate share of applicable costs of the testing requirements in a test order, any person involved in the dispute may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service or a hearing with a regional office of the American Arbitration Association.” H.R.553; Status. Non-Federal Employee Whistleblower Protection Act of 2011. It includes provisions on the nonenforceability of waivers and arbitration of disputes. S.241; Status. National Guard Technician Equity Act. Provides for a technician’s rights of grievance, arbitration, appeal, and review beyond the current stage of the adjutant general of the jurisdiction concerned. H.R.1169; Status. Postal Operations Sustainment and Transformation Act of 2011. Section 401 of the Act includes arbitration and labor dispute guidelines. S.1010; Status. Soledad Canyon High Desert, California Public Lands Conservation and Management Act of 2011. Advises the use of arbitration under Subchapter IV of chapter 5 of section 5 of the USC. S.759; Status. FAA Air Transportation Modernization and Safety Improvement Act of 2011. Requires the FAA Administrator and employee bargaining representatives, if their own negotiations and the services of the Federal Mediation and Conciliation Service (FMCS) have failed to lead to an agreement, to submit their controversy to the Federal Service Impasses Panel, subject to specified procedures, for binding arbitration. H.R.658; Status. Medical Care Access Protection Act of 2011 (MCAP Act). The limitations within the act apply to arbitration, and nothing in the act is meant to supersede arbitration. S.197; Status. Patent Reform Act of 2011 (a.k.a. America Invents Act). A patent holder with an invention in dispute can use arbitration to settle. S.23; Status. Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011. Provides that, “whether by arbitration or other means, in any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants.” S.1099; Status. S.218; Status. H.R.5; Status. U.S. Postal Service Improvements Act of 2011. Authorizes arbitration boards to consider the financial condition of the USPS in rendering decisions. S.353; Status. Preventing Homeowners from Foreclosure Act of 2011. Directs the Secretary of Housing and Urban Development (HUD) to implement a competitive grants program for states and local governmental entities to establish mediation programs to assist mortgagors under home mortgages facing foreclosure on such mortgages. H.R. 1131; Status. Preserving Homes and Communities Act of 2011. Directs the Secretary of HUD to: (1) establish a grant program to make competitive grants to state and local governments to establish mediation programs that assist mortgagors facing foreclosure, and (2) develop and implement a plan to monitor conditions and trends in home ownership and the mortgage industry and the effectiveness of public and private efforts to reduce mortgage defaults and foreclosures. S.489; Status. H.R.1477; Status. Restoring Democracy in the Workplace Act. Declares that a specified rule prescribed by the National Mediation Board relating to representation election procedures shall have no force or effect. H.R. 548; Status. Community Access Preservation Act (CAP). Amends the Communications Act of 1934. Sets forth provisions regarding: (1) LGS or state enforcement, (2) nonbinding mediation and court proceedings concerning disputed support amounts, and (3) prerequisites for an LGS to impose additional PEG use requirements. H.R.1746; Status. Department of Peace Act 2011. Establishes a Department of Peace. Sets forth the mission of the Department, including: (1) cultivation of peace as a national policy objective; and (2) development of policies that promote national and international conflict prevention, nonviolent intervention, mediation, peaceful conflict resolution, and structured conflict mediation. H.R.808; Status. Fair Arbitration Act of 2011. Amends the Federal Arbitration Act to establish certain procedures for arbitration clauses in contracts: the arbitration clause should have a printed heading in bold, capital letters entitled `arbitration clause’, which heading shall be printed in letters not smaller than 1/2 inch in height; explicitly state whether participation within the arbitration program is mandatory or optional; and identify a source that a consumer or employee can contact for additional information regarding costs and procedures. S.1186; Status. Medical Liability Procedural Reform Act of 2011. Provides grants to states for development, implementation, and evaluation of health care tribunals. H.R.314; Status. Empowering Patients First Act. Repeals the Patient Protection and Affordable Care Act and related health-care provisions and enacts in its place incentives to encourage health insurance coverage. The Act would limit recovery of attorneys’ contingency fees for representing claimants whether the recovery is by judgement, settlement, mediation, arbitration, or other form of alternative dispute resolution. H.R.105; Status. Foreclosure Prevention and Sound Mortgage Servicing Act of 2011. Prohibits a mortgagee from requiring a borrower, as a condition of loss mitigation activities, to: (1) waive or limit rights to certain legal actions against the mortgagee or servicer as a condition of accepting an offer of any loss mitigation activities, or (2) agree to arbitration as a condition of receiving […]

We invite you to check out Professor Thomas J. Stipanowich latest article, “The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion and the Future of American Arbitration,” American Review of International Arbitration (forthcoming). Here is the abstract: For the third time in the modern era, a triad of key Supreme Court decisions represents a milestone in American arbitration. In this highly controversial “Third Arbitration Trilogy,” the U.S. Supreme Court aggressively expands the “revealed” penumbra of substantive arbitration law under the Federal Arbitration Act and shores up the bulwarks of private, binding dispute resolution under standardized contracts of adhesion binding employees and consumers. In Stolt-Nielsen S.A. v. AnimalFeeds International, 130 S. Ct. 1758 (2010), the Court, against the backdrop of an international commercial contract scheme and a unique procedural scenario, draws upon the wellspring of divined “federal substantive law” under the FAA to pronounce limits on the ability of arbitrators – or courts – to promote public policies supporting class actions. Many understood Stolt-Nielsen, correctly, as a portent of the Court’s eventual curtailment of state-law-based policies against enforcement of contractual waivers of the ability to participate in a class action when coupled with an agreement to arbitrate. In Rent-A-Center, West v. Jackson, 130 S. Ct. 2772 (2010), the Court declares that public policies promoting enforcement of arbitration agreements effectively trump the authority of courts to deny or limit the enforcement of arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract” – or, more precisely, to police arbitration agreements for unconscionability. Once again, the Court majority “discerns” new Federal substantive law surrounding the FAA. It employs a unique variation on the principle that arbitration agreements are separable from the contracts of which they are a part, aggressively interprets Court precedents transferring from courts to arbitrators authority to resolve enforceability issues, and segregates the determination a contract has been “made” in a formalistic sense from consideration of defenses to its enforceability and validity. In AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), the Court once again addresses the interface between pro-arbitration policies under the FAA and the countervailing, limiting force of unconscionability doctrine. Yet again, a majority finds pro-arbitration federal policy circumscribes judicial authority to police arbitration agreements under state law. In this case, the result is to enforce a term in the arbitration agreement waiving the consumer’s right to bring a contractual claim as part of a class action. Its staunchest adherents may insist that the Court’s actions are necessary to effectively promote pro-arbitration policies under the FAA (announced and repeatedly reinforced by the Court since the mid-1980s) while ensuring that lower courts be measured and precise in the handling of countervailing defenses. In its zeal to further its evolving vision of the FAA, however, the Court has eliminated key safeguards aimed at ensuring fundamental fairness to consumers and employees in arbitration. The Court’s most recent decisions have placed dramatic new limits on judicial oversight of arbitration agreements, making the U.S. a relative “outlier” among global sovereigns. The Court’s extreme and inflexible posture adds momentum to Congressional efforts to dramatically restrict the use of predispute arbitration agreements. Unfortunately, these legislative responses, like the Court’s decisions, lack a solid empirical foundation. As with the Court’s jurisprudence, there is no guarantee that they will produce the best possible solution for employees and consumers. Good decisions about the public or private resolution of employment and consumer disputes depend upon a commitment to obtain and act upon better information about the operation of specific forms of arbitration in specific transactional settings, along with comparative data respecting court processes. Recent empirical scholarship has moved us closer to this goal, but much remains to be done. In assessing process options, policy-makers should consider the potential future role of statutory due process standards for arbitration, regulated arbitration, and arbitration that gives individuals the option of proceeding to court. To the extent public tribunals are necessary, it should not be assumed that the court system as presently structured is the most effective way of addressing consumer or employment disputes. It may be appropriate to develop public consumer tribunals or administrative employment tribunals such as those that exist in some other countries In assaying public and private process choices, special attention should be given to the opportunities afforded by online dispute resolution (ODR). Finally, effective policy-making in these arenas cannot ignore the primary hot-button issue, the role of class or collective action. The full article is available for download (for free ) here. Other papers by Professor Stipanowich are here. Technorati Tags: law, ADR, arbitration

On October 21, 2011, keynote speaker Gary Born leads an international group of experts in a frank discussion of issues that can arise when parties combine litigation tactics with international commercial arbitration. The symposium, entitled “Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration,” will be held at the award-winning Center for the Study of Dispute Resolution at the University of Missouri School of Law. Associated events include a works-in-progress conference where authors discuss their current research with other specialists and a student writing competition sponsored by the Chartered Institute of Arbitrators (CIArb) North American Branch. The registration fee for the symposium, including an “early bird” session concerning the new ICC Rules of Arbitration, is $50, and online registration is available here. For more information on all events, please click here or contact Professor S.I. Strong at strongsi@missouri.edu. The Symposium brochure is here. Technorati Tags: law, ADR, arbitration