We came across this Mayer Brown LLP article identifying ten characteristics of an enforceable dispute resolution clause. Ten Hallmarks of Effective International Arbitration Agreements By William H. Knull Article – International Arbitration, Litigation & Dispute Resolution, Americas, Asia, Europe 19 January 2010 International arbitration can provide the security of a neutral forum and a framework of enforcement treaties that is far superior to reliance on the other side’s home courts for resolving disputes in international transactions. But a poorly drafted arbitration clause can result in inefficient procedures at best and an unenforceable agreement at worst. This list identifies ten of the most important characteristics of an enforceable, functional dispute resolution clause. 1. Unambiguous agreement to submit to arbitration (“Any dispute or difference arising out of or relating to this agreement shall be finally resolved by arbitration …”). 2. Unambiguous definition of any exceptions to the agreement to arbitrate (if exceptions absolutely cannot be avoided). 3. If arbitration is to be preceded by negotiation or mediation, the time for commencing the arbitration must be unambiguously defined by reference to objective dates or events (“If no agreement has been reached within __ days of the delivery of written notice of the existence of a dispute, either party may serve a request for arbitration …”). 4. Accurate designation of the administering institution (if desired). 5. Designation of the applicable rules. 6. Specification of the site of the arbitration, carefully chosen for the quality of its arbitration jurisprudence and the respect of its courts for the arbitral process. 7. Specification of the number of arbitrators and the means of their selection. 8. Designation of the language of the proceeding. 9. If confidentiality of the proceeding, evidence and award is desired, an explicit provision to that effect that does not rely on assumed, and likely non-existent, provisions in the arbitral rules or applicable law. 10. Definition of any limitations on the power of the arbitrators, such as awarding punitive or consequential damages, injunctive relief, etc., and excluding the arbitrators’ power to alter such limitations. We welcome any additions or comments about this list! Technorati Tags: ADR, law, arbitration

Via On Point News, we learned that Halliburton/KBR has recently filed a petition for certiorari with the U.S. Supreme Court on the case Jones v. Halliburton, 583 F.3d 228 (5th Cir. 2009). The issue is whether the arbitration provision in an employment contract includes the tort claim of sexual assault. The petition presents this question: Respondent Jamie Leigh Jones filed a complaint in federal district court against her employer, seeking redress of injuries she allegedly sustained from a sexual assault by another employee in overseas employer-provided housing in which she was required to reside as a condition of her employment. Jones’s employment contract required arbitration of “any and all claims that you might have against Employer related to your employment,” including “any personal injury allegedly incurred in or about a Company workplace.” A divided United States Court of Appeals for the Fifth Circuit narrowly construed the arbitration clause to exclude Jones’s claim. The court reasoned that sexual assault claims should be deemed generally excluded from such clauses. It imported into the “related to” clause a requirement that the claim was only arbitrable if “significantly” related to employment, and rejected application of the general rule that overseas employer-provided sleeping quarters are part of the workplace. The question presented is: Under the Federal Arbitration Act’s presumption of arbitrability, which requires courts to give arbitration agreements the broadest pro-arbitration construction of which they are susceptible, may a court develop rules of exclusion to narrow standard broad arbitration clauses? See Professor Marcia L. McCormick from the Workplace Prof Blog for comments about this case. (post available here) Related Posts: Employment Arbitration: Issues Implementing the ‘Franken Amendment’ (Feb. 2, 2010) U.S. Arbitration and Mediation Legislative Update (Jan. 25, 2010) Guest-Post Part II | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 7, 2010) Guest-Post Part I | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 6, 2010) 2009 Developments: Consumer and Employment Arbitration (Dec. 23, 2009) Defense Contractor Mandatory Arbitration Passes Senate (Oct. 13, 2009) Jones v. Halliburton: Fifth Circuit Rules on Arbitration of Tort Claims by an Employee (Sept. 18, 2009) Employment and Consumer Arbitration: NPR Article (June 10, 2009) Technorati Tags: ADR, law, arbitration

We thought that you might be interested to listen to the Podcast entitled “How To Work With E-Mediation and Special Masters in E-Discovery Cases” by Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog and Allison O’Neal Skinner from the Alabama-based law firm Sirote & Permutt. The ESIBytes™ Podcast of about 40 minutes is available here. (no PowerPoints, but free!) Peter and Allison will also host the TexasBarCLE Webcast “When to Use eMediation or Special Masters in eDiscovery“ on February 16, 2010 from 2-3:30pm. The Webcast is 1.5 hours and will have a good number of PowerPoint slides. (more details are here) Technorati Tags: ADR, law, mediation

The United States Court of Appeals for the Fifth Circuit held that an arbitration clause is enforceable notwithstanding that the parties had terminated their services contract. In Hall-Williams v. Law Office of Paul C. Miniclier, PLC, No. 09-30113 (5th Cir. Jan. 13, 2010), Carolyn Hall-Williams (Hall-Williams) is a former client of the Law Office of Paul C. Miniclier (Miniclier). In September 2006, Hall Williams hired Miniclier to represent her in an insurance dispute with Allstate Insurance Company (Allstate) regarding a claim for damages caused by Hurricane Katrina. The retainer contract provided for 33 1/3 % contingency fee if the case settled before suit was filed and a 40% contingency fee thereafter. The contract also provided for binding arbitration by the Louisiana State Bar Association for disputes arising under their contract. Miniclier filed a lawsuit against Allstate in August 2007. At that time, David Binegar (Binegar) and Tiffany Christian (Christian) were employed by Miniclier and worked on the Hall-Williams lawsuit against Allstate. However, on March 7, 2008 Binegar and Christian resigned and formed their own law firm. Hall-Williams hired them and terminated Miniclier as her counsel. On March 13, 2008, Allstate and Hall-Williams settled their dispute for an undisclosed amount. Miniclier insists that he was due 40% (plus costs) of the settlement and requested the matter to be submitted to arbitration. The district court denied Miniclier’s motion to compel arbitration and Miniclier now appeals. The Fifth Circuit highlighted the legal standard to grant a motion to compel arbitration: Whether there is a written arbitration agreement. The court noted that the parties do not dispute the existence of an arbitration agreement and addressed Hall-Williams claims that: The agreement is unenforceable due to the termination of Miniclier’s services. The court, citing the FAA ( “a written provision in any…contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract…, shall be valid, irrevocable, and enforceable…”) concluded that the arbitration clause is enforceable. Miniclier had waived his right to arbitrate. The court stated that “[w]aiver will be found when a party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.” Hall-Williams claims that Miniclier waived his right to arbitrate by: (a) Filing a motion to intervene, (b) Sending an email declining to attend the settlement conference, and (c) Failing to invoke arbitration in response to a magistrate judge’s order requiring a fee application. However, the court concluded that these events do not demonstrate Miniclier’s waiver. Whether any of the issues is referable to arbitration. The court concluded that the underlying dispute is referable to arbitration. Accordingly, the court vacated the judgment of the district court and remanded for referral to arbitration. Technorati Tags: ADR, law, arbitration