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ADR: Advice from the Trenches Blog

Articles: 1-10 of 39

Arbitration Jiu Jitsu: Increasing the Pressure to Settle With a “Sealed Settlement Offer”

USA - May 23 2018 The cost of arbitration, including attorneys’ fees, can be substantial, commensurate with the matters in dispute. Your desire to settle a dispute that…

Must Your Dispute Be Arbitrated? You May Be Entitled to Discovery to Find Out.

USA - May 9 2018 In a proceeding under the Federal Arbitration Act (“FAA”) to determine if a dispute must be arbitrated, a federal district court performs a more…

Supreme Court Will Determine If Silence in an Arbitration Clause May Be Judicially Interpreted to Permit Class Arbitration

USA - May 4 2018 On April 30, 2018, the U.S. Supreme Court granted certiorari to review an unpublished Ninth Circuit decision in Varela v. Lamps Plus, Inc., No…

When Seeking to Compel Arbitration, a Motion to Dismiss Is Sometimes the First Step

USA - April 24 2018 The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., provides the usual means of enforcing an arbitration agreement by compelling a party to…

Whiplash: When a Court Finds That the Parties’ Claims Are Within the Scope of a Valid Arbitration Agreement, But It Will Not Compel Arbitration

USA - April 17 2018 Is there such a thing as an arbitration joke? Here is a test. Two plaintiffs walk into a court, claiming that each was wrongfully terminated by a bank…

When Seeking to Enforce an ICSID Arbitration Award Against a Foreign Sovereign, Think FSIA First

Global, USA - April 12 2018 An ex parte proceeding in a U.S. court to “recognize,” “enforce,” or “confirm” an arbitration award against a foreign sovereign is improper. The U.S…

Pre-Arbitration Discovery: Turn to State Law Where the Federal Rules are Inadequate

USA - March 26 2018 As discussed in an earlier post, obtaining discovery from a non-party to an arbitration often is easier said than done. Depending on the law of the…

Arbitrability Basics: An Illustration of the “Autonomy” Principle

USA - March 22 2018 Arbitration is a creature of contract. So is the law concerning contracts with an arbitration clause the same as the law concerning any other contract…

“Ambiguity” Is Not a Basis to Deny a Petition to Enforce a Foreign Arbitration Award

USA - March 12 2018 The drive in the Second Circuit to clarify the rules regarding confirmation and enforcement of various types of arbitration awards continues. The…

Dissecting Common Basic Arbitration Clauses — You Can Build a Better One

USA - March 6 2018 Arbitration is often promoted as faster, cheaper, more predictable, and more controllable than litigation. But to many, arbitration’s promise comes up…