Early this Saturday morning, Todd Smith at the outstanding Texas Appellate Law Blog posted about the strange quirk in the law whereby trial courts’ refusals to compel arbitration are immediately reviewable by mandamus if one statute applies (the Federal Arbitration Act or “FAA”) or by interlocutory appeal is another applies (the Texas Arbitration Act or “TAA”). Mr. Smith noted that the legislature could amend the interlocutory appeal statute to provide that orders refusing to compel arbitration under either the FAA or the TAA could be immediately appealed. This would make sense, of course, since the FAA is unusual as a federal statute in that it was intended to be enforced and implemented by state courts; the FAA, in and of itself, does not serve as an independent basis for federal question jurisdiction in the federal court system. At any rate, we would be remiss if we did not join the conversation, if only to provide a link to the D. Wilson Construction opinion from the Texas Supreme Court, handed down in late June of last year. We blogged on the opinion back when it came out, but inexplicably did not post a link; sorry about that. At any rate, among other issues Wilson explains in wonderful detail the relationship between the FAA and the TAA and situations when the FAA may or may not pre-empt the TAA. Such topics are fascinating to us and we’ve written about them elsewhere. An offshoot of this, of course, is the ongoing discussion of reverse-preemption in the medical malpractice arbitration context. The majority opinion, however, races right up to the threshold of fixing the problem noted by the Appellate Law Blog this morning but then does not do so. Much to Justice Brister’s chagrin. This entire blog post, therefore, is simply a lengthy introduction for a comment Justice Brister made in his concurring opinion in Wilson: parties should not have to file both an interlocutory appeal and an original proceeding [mandamus]; even attorneys who can predict which one an appellate court will find proper may hesitate to gamble with their client’s money. I would allow them to file either, and then have the appellate courts treat it as they think proper. So there you have it. A Supreme Court Justice’s comment on Mr. Smith’s post, sort of. Technorati Tags: arbitration, ADR, Texas Supreme Court, law

We recently blogged with Rick Freeman about the important distinctions between consumer (“take it or leave it”) arbitration agreements and agreements to arbitrate between sophisticated commercial parties. We’ve just skimmed HB 3091 (link is to .pdf file), which if passed would severely restrict or outlaw the widespread use of arbitration agreements in consumer contracts in Texas. We will, of course, keep our eye on this. However, at first blush I would think it would be pre-empted by the FAA almost all the time as a practical matter, given that many contracts, like credit card contracts, involve interstate commerce so far as FAA v. TAA analysis is concerned. Remember that the TAA (Texas Arbitration Act) currently more or less prohibits the arbitration of personal injury cases, but that courts have held this prohibition is pre-empted by the FAA in cases involving interstate commerce. I would think the same preemption would apply in a dispute between a Texas consumer and a credit card company over a supposed agreement to arbitrate. The bill is interesting in and of itself, however, in that its existence reflects a growing backlash against the myriad arbitration clauses most of us have agreed to without even really realizing it. Representative Stephen Frost from East Texas authored the bill. We’ll keep you posted. Technorati Tags: arbitration, ADR, law, politics

While we’re on the subject of arguments one can use to try to prevent the confirmation of an arbitral award, we note that the Texas Supreme Court will hear oral argument in the Perry Homes case tomorrow. For more on the case see this article, or this one, or this one from a more mainstream source (the Dallas Morning News). The argument will supposedly be webcast, but when I tried to find specifics on the internet the Court’s website seemed to be down (which I suppose does not bode well for the webcast). Technorati Tags: arbitration, ADR, Texas Supreme Court, law

Earlier this week, the Fifth Circuit handed down an opinion holding that personal jurisdiction did not exist (link is to .pdf) as to several Russian companies that had been sued by a Texan company for allegedly breaching an agreement to produce natural gas from the Yuzhno-Russkoye gas field. Since the contract was executed in Russia and performance would have taken place in Russia, the Court affirmed a trial court ruling that no personal jurisdiction existed against the Russian defendants. Why do we care about this? Well, because it’s Spring Break and there’s not much else going on in the world of Texas arbitrability law. Also, the contract in question contained an arbitration clause requiring arbitration in Russia pursuant to Russian law, a fact the Court noted in its personal jurisdiction analysis. The Russians, of course, had also moved to compel arbitration, but since their plea to the jurisdiction was granted the Court did not reach the arbitration point. Moncrief Oil Int’l, Inc. v. OAO Gazprom, et al., ___ F.3d. ___ (5th Cir. 2007) (Cause No. 06-10552)