By Brett Goodman The Court of Appeals of Texas in Amarillo has affirmed a lower court’s decision to deny a motion to vacate an arbitration award. In Denver City Energy Associates, L.P. v. Golden Spread Elec. Co-op., Inc. 340 S.W.3d 538 (Tex. App.–Amarillo 2011, no pet.) Denver City Energy Associates (Denver City) appealed the decision to confirm an arbitrator’s award in favor of Golden Spread Electric Generating Cooperative, Inc. (GS Generating). The two parties were joint owners of an electric generating facility under a joint operating agreement (JOA) and a Power Purchase Agreement (PPA) presided over Golden Spread’s purchasing of electricity from the facility. Disputes arose considering the allocation of fuel costs among other issues leading to arbitration pursuant to the terms of the PPA and the JOA, which meant that within thirty days of selecting an arbitrator, a hearing over the issues was to take place, and the arbitrator would then need to inform the parties within sixty subsequent days of the hearing’s conclusion. An initial hearing was held in May of 2006, and the arbitrator decided in October of that year to award Golden Spread with the ability to use a set formula to calculate proactive and retroactive fuel costs. In November 2006, the arbitrator issued a “Corrected Arbitrator’s Award,” and in December, the arbitrator attributed a specific amount of over $5 million because the arbitrator saw it as his duty to find a specified award in the event that the November formulas could not be used to come to one. Denver City first argued that the arbitrator lacked authority with the December award to modify that of November because both the JOA and PPA stated, “The arbitrator shall notify the Parties in writing of the decision within sixty (60) days of the conclusion of the hearing.” This language, Denver City contends, is the parties’ agreed-upon “contractual 60–day deadline,” precluding adjudication beyond that date by the arbitrator.” The court did not agree that the December award was a modification of the November entity, explaining, “The November 15 award expressed the arbitrator’s decision on issues of liability and the intended means for calculation of damages. The record was reopened for calculation and enforcement of the damage amounts, leading to completion of the arbitration. Under the facts here presented, this procedure was not inconsistent with AAA Rule R–36. Within the time allowed by Rule R–36, the arbitrator delivered the December 28 order, which made the arbitration complete.” Denver City also took exception to the award allegedly not being “mutual, final, and definite.” Citing to a Seventh Circuit decision, the Court of Appeals of Texas defined these terms to mean “that the arbitrators must have resolved the entire dispute (to the extent arbitrable) that had been submitted to them” and “definite” means “that the award is sufficiently clear and specific to be enforced should it be confirmed by the district court and thus made judicially enforceable.” IDS Life Ins. Co. v. Royal Alliance Associates, Inc., 266 F.3d 645, 650 (7th Cir.2001). The court highlighted the fact that both parties agreed to arbitration, and the arbitrator made a determination in his best judgment, which is the ideal situation. The concern is not whether a perfect solution was found, but whether the arbitrator acted in a manner that would necessitate vacatur. Finally, Denver City contended that the arbitrator exceeded his powers by deciding on an issue not submitted to arbitration in determining “how to price fuel used to generate electricity.” The court, however, extracted the language from the PPA and JOA that arbitration could be used to resolve “any dispute, controversy or claim arising out of, under or relating to this Agreement … unless otherwise provided in this Agreement or mutually agreed by the Parties.” Stemming from the complex nature of the issues and the language of the PPA and JOA taken together, the court could not say that the arbitrator had clearly overstepped his bounds of the submitted issues. Thus, the court affirmed the judgment of the trial court in denying a vacatur of arbitration award to Golden Spread in favor of Denver City. The court is an important one in underscoring the deference to the decision of arbitrators in Texas and the very limited ability of a court to overrule his or her work. Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.

The American Lawyer has just released its 2011 Arbitration Scorecard survey. The full survey contains details of 261 international arbitration disputes during 2009-2010 including 65 contract and 48 investment arbitrations in which at least $1 billion was at stake. The full survey is available here. Technorati Tags: law, ADR, arbitration

The historic Tour de France began on Saturday with perhaps the most attention on doping in the event’s history. Currently, three-time champion Alberto Contador still awaits judgment from the Court of Arbitration for Sports (CAS) on an appeal from a failed drug test last year. It is expected, then, that the race will start without a judgment yet to be had, thereby shrouding the whole race in a mess of doping controversy and international arbitration frustration. Although Contador was exonerated earlier, both the International Cycling Union (UCI) and World Anti-Doping Agency (WADA) appealed. The CAS will not be making its final decision until August, which could lead to the stripping of two of Contador’s titles. The clamor over Contador is only compounded by a story that ran on CBS’s 60 Minutes earlier in the year, where it was at the very least strongly suggested that Lance Armstrong, the face of the sport, engaged in some form of doping during his streak of seven victories. Contador might have an easier go-around in this year’s Tour, yet he still faces challenges unlike other cyclists. Last year’s third-place finisher will not be competing this year, though there always seems to be a fresh crop of athletes rearing to take the spot at the top of the podium. At the same time, Contador deals with intense media scrutiny and boos or hisses from the crowd not experienced by his fellow riders. Still, Contador is the favorite in this year’s Tour de France. Whether he emerges with four victories under his belt, three after a loss, or maybe even a smaller number, will largely depend on the international arbitration decisions of the CAS. Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.

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 […]