We invite you to read Donald R. Philbin, Jr. and Audrey Lynn Maness‘ latest Fifth Circuit law review article, Still Litigating Arbitration in the Fifth Circuit, But Less Often, 42 Tex. Tech L. Rev. 551 (2010). Here is an excerpt: Arbitration remains under national klieg lights. It has “become a wide-ranging surrogate for civil litigation” in a wider variety of contracts than at any time in our nation?s history. This increased use has revealed stress fractures and drawn criticism. Congress has reacted, too: A party to a recent Fifth Circuit case was the impetus for the Franken Amendment, even though she ultimately won the right to take most of her claims to court. Other bills seek to exclude entire classes of claims (consumer, employee, franchise, and civil rights) from arbitration and to redraw the procedural line between decisions made by a court and decisions left to the arbitrator when the parties so provide. Arbitration is also being criticized in business circles for becoming “arbigation.” But change has not awaited policy shifts, raising more questions about whether blunt legislative changes are necessary when commercial and judicial scalpels appear to be working. Pressure release valves, like unconscionability challenges, have been growing in popularity and use despite repeated petitions for writs of certiorari seeking to level geographic differences. That may change. The U.S. Supreme Court recently granted certiorari in a Ninth Circuit case to decide whether courts or arbitrators should decide unconscionability challenges to arbitration agreements when the parties clearly and unmistakably assign that gateway decision to the arbitrator. While major U.S. corporations expected overall disputes to increase in these tough economic times, one study indicates that corporations prefer to resolve their domestic disputes in litigation. This preference is already permeating standard contracts. The American Institute of Architects? widely used template for building contracts has changed arbitration from the default procedure to a mere party option. Even those that have not modified their standard contracts have focused on early case assessment, mediation, and tailored arbitration. While mediation is frequently used, and may be the current default procedure, it was not controversial enough to generate a Fifth Circuit opinion during this survey period. “In the current „toolbox? of approaches to conflict, mediation is the equivalent of a multi-functional Swiss-Army knife.” But lest anyone overstate the demise of commercial arbitration, the American Arbitration Association reports business arbitration to be relatively stable.10 And other studies show that it is still viewed as less costly and quicker than litigation. The article may be downloaded (for free) here. Technorati Tags: law, ADR, arbitration

The AAA Handbook on Mediation (2nd Ed.) will be available on September 19, 2010: The AAA Handbook on Mediation assembles from the Dispute Resolution Journal – the flagship publication of the American Arbitration Association – and other sources, the leading professional writing in areas in which mediation is likely to apply. The Handbook on Mediation is succinct, comprehensive and a practical introduction to the use of mediation in various fields, written by leading practitioners and scholars. It provides essential orientation and is a “must” for anyone with an interest in the field of mediation. The Handbook contains recent important articles written by authors who are recognized specialists in the area, often the authors have both national and international reputations. The contributions cover a wide array of topics that are of substantial interest in mediation and provide analytically thorough, professional, and practical answers to problems that have emerged in the field. The articles were selected from an extensive body of writings and, in the main, represent world-class assessments of mediation practice and procedure. The articles provide the reader with comprehensive and accurate information, lucid evaluations, and an indication of future developments. They not only acquaint, but also ground the reader in the field of mediation. Find out more here. Technorati Tags: ADR, law, arbitration

We thought that you might find interesting Professor Alan Scott Rau’s latest article, Understanding (and Misunderstanding) “Primary Jurisdiction, American Review of International Arbitration (forthcoming). Here is the abstract: In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion – the fulcrum around which the entire arbitral enterprise pivots – has been the supposed dichotomy between the state of the “seat” – where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” – and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion – for example, by appointing the arbitrators – and above all in monitoring compliance with the agreement – for example, by annulling or vacating the resulting award. That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration – and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law. I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood. The inevitable problem, though, is that none of this is a universal solvent – the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts. Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated – perhaps on the fundamental ground that he has never even given his assent – American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” – and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.” American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit – or for that matter to the proposition that international neutrals cannot possibly be corrupt – need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges. You may download the full article (for free) here. Links to other scholarly papers by Professor Rau are here. Technorati Tags: ADR, law, arbitration

Here is an update from the Associated Press about the Massey Energy pollution case: By VICKI SMITH Hundreds of southern West Virginia residents who claim Massey Energy Co. poisoned their wells and made them sick by pumping coal slurry underground will get their day in court next year — and a chance to settle the case this fall. A mass litigation panel handling the long-delayed lawsuit against Virginia-based Massey and subsidiary Rawl Sales & Processing set a trial date of Aug. 1, 2011, in Wheeling, warning the dozens of attorneys involved to clear their schedules for two months. The five-judge panel also announced it will hold a mediation day Nov. 15 in Charleston, when two of the judges will try to broker a settlement that Massey, the plaintiffs and dozens of insurance company lawyers can live with. “We’re going to have a dual track here. We’re not going to slow down,” said Judge Alan Moats, who chairs the panel. “We’re going to go full speed ahead in both directions.” While Moats and Judge Derek Swope will handle the mediation, Ohio County Circuit Judge James Mazzone will start preparing for trial with the help of Judges John Hutchinson and Jay Hoke. Read the rest of the story here. Technorati Tags: ADR, law, arbitration