UPCOMING IADC MEETINGS

Transcription

1 UPCOMING IADC MEETINGS Visit for more information July 10-15, 2010 Annual Meeting Hotel Arts Barcelona, Spain October 7 8, 2010 International Corporate Counsel College InterContinental Paris-Le Grand Paris, France July 31 August 6, th Annual Trial Academy Stanford Law School Palo Alto, California USA February 19 24, 2011 Midyear Meeting Inn at Spanish Bay Pebble Beach, California USA

2 ADR Webinar Series: Part 1 Formation of the ADR Clause Wednesday, June 9, 2010 Presented By the IADC Alternative Dispute Resolution Committee Welcome! The Webinar will begin promptly at 12 pm CDT. Please read and follow the below instructions: 1. If you have not already done so, please join the conference call. 2. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to mute your phone. 3. If you are on a conference phone, please move all cellular or wireless devices away from the conference phone to avoid audio interference. 4. If you have questions during the presentation, you may utilize the Q&A function at the top of your screen. You may type questions here and it will be sent to the presenters for response. If your question is not answered during the presentation, our presenters will answer questions at the end of the webinar, or via following the webinar. 5. Visit the Handouts section in the upper-right-hand corner of the screen if you would like to download a copy of this PowerPoint presentation. You can also find these materials on our website at

3 Click on the Q&A tab on your screen to type a question for the presenters. Click the Handouts tab on your screen to download this PowerPoint

4 ADR Webinar Series Presented By the IADC Alternative Dispute Resolution Committee Stay Tuned for other topics this Fall such as: Selecting Arbitrators and Mediators/Preparing the Client for ADR The Winning ADR Presentation Best Practices and Pitfalls of Mediation Enforcement of Mediation Agreements and Arbitral Awards How to Win the Impossible Case in an Impossible Jurisdiction Watch your inbox for more information! Upcoming Webinars and additional information can also be found on our website:

5 Presenters James H. Falk, Sr. George Washington University Law School Washington, D.C. Peter Silverman Shumaker, Loop & Kendrick Toledo, OH Martin Welles U.S. Postal Service Washington, D.C.

6 Arbitration Clause 14 Elements of an Arbitration Agreement Presented for International Association of Defense Counsel (IADC) June 9, 2010 Webinar By: Peter Silverman Martin R. Welles James H. Falk, Sr. 6

7 Overview State of the Arbitration Industry Growth Consumer Arbitrations NAF and AAA withdrew from this activity Who will do them? 7

8 Overview What is the purpose of arbitration? Expeditious Resolution Limit expenditure of legal resources 8

9 Arbitration Clause How should you draft an agreement Supplier Customer Employment Employees, Executives, and Unionized via Collective Bargaining Agreement (CBA) 9

10 Arbitration Clause (International) Specify: Place of Arbitration Halfway point (geographically) Sophisticated commercial city Claimant needs to bring the arbitration in the respondent s place of business The nationality of the arbitrators The language of the arbitration 1 0

11 Arbitration Clause (International) Specify: Which international arbitration authority to invoke -- e.g., International Centre for Dispute Resolution (ICDR) International Chamber of Commerce (ICC) London Court of International Arbitration (LCIA) Commercial Arbitration and Mediation Center for the Americas (CAMCA) United Nations Commission on International Trade Law (UNCITRAL) 11

12 Arbitration Clause (International) Specify: Which rules to use; and Whether the arbitrator should base the award on Substantive law (choice of law), or Fairness and equity Organizations have sample clauses 12

13 Arbitration Clause (International) Enforcement: Where must a party go for enforcement? Is the nation a signatory to relevant conventions United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or Inter-American Convention on International Commercial Arbitration If so, what is the scope of the nation s implementing legislation. 13

14 Arbitration Supreme Court Supreme Court Recent Decisions involving Arbitration 14 Penn Plaza LLC v. Pyett, 129 S. Ct (2009) Union Pacific Railroad Co. v. Brotherhood of Teamsters (08-604); Dec. 8, 2009 Stolt-Nielsen S.A. v. AnimalFeeds Int. ( ); Apr. 27,

15 Arbitration Supreme Court Key Procedural Cases Prima Paint Corp. v. Flood & Conklin Mfg. Co.; 388 U. S. 395 (1967) Fraud in the inducement must apply to arbitration clause separately Court decides, not the arbitrator Buckeye Check Cashing v. Cardegna; 546 US 440, (2006) Arbitrator, not court, decides claim Rent-A-Center West, Inc. v. Jackson; (09-497) Argued April 26, 2010, Not yet decided 15

16 Arbitration Significant Federal Statutes Federal Arbitration Act (FAA) 9 USC 1, et seq. National Labor Relations Act (NRLA) 9(a) (Exclusive Representation) Railway Labor Act (RLA) Arbitration is called for after the parties have exhausted the grievance procedures which shall give the parties every opportunity to resolve the dispute. 16

17 Arbitration State Statutes Many states have statutes regulating arbitration Fees Mass. Gen. Laws ch. 93A Attorney fees to party defeating vacature of arb. award Mandatory Arbitration Illinois Code of Civil Procedure 735 ILCS 5/2-1001A The Supreme Court of Illinois, by rule, may provide for mandatory arbitration of such civil actions as the Court deems appropriate under $50,000 17

18 Arbitration Legislation Labor Relations First Contract Negotiations Act of 2009 H.R.243 Referred to Committee Requires mediation and, if necessary, binding arbitration of initial contract negotiation disputes 18

19 Arbitration Pending Legislation Arbitration Fairness Act of 2009 H.R Referred to committee Seeks to exempt employee, consumer, and civil rights claims from arbitration 19

20 Arbitration Employee Free Choice Act of 2009 (EFCA) H.R.1409 Referred to Committee Mandatory interest arbitration Collective bargaining agreement certain to contain grievance/arbitration mechanism for dispute resolution 20

21 14 Elements of an Arbitration Agreement 1. Contracting Parties and Consideration 2. Arbitration Provider 3. Number of Arbitrators 4. Place of Arbitration 5. Applicable State Contract Law 6. Issues subject to Arbitration 7. Right to seek interim relief in Court 8. Applicable Arbitration Rules 9. Damages permitted/prohibited 10. Waiver of Appeal 11. Confidentiality Clause 12. Award Requirements 13. Class Action Participation or Bar 14. Attorneys Fees and Costs 21

22 Arbitration Clause 1. Contracting Parties and Consideration Who will be the parties to the arbitration? Obvious starting point Lays the foundation for other elements Such as place of arbitration Treaties, etc. 22

23 Arbitration Clause 2. Arbitration Provider Major Service or Self-Select What happens when service provider ceases to offer service? Contingency provider Court appointment What are the qualifications of the arbitrator? Must it be a professional arbitrator who has heard a minimum number of arbitrations? Is industry experience a requirement? What professional associations or credentialing groups must the arbitrator have membership? 23

24 Arbitration Clause 3. Number of Arbitrators How many arbitrators requested on list? 3 too few? 15 too many? Will it be an arbitration panel, or single arbitrator? 24

25 Arbitration Clause 4. Place of Arbitration On company property What city and state (or country) Choice of law up to the parties 25

26 Arbitration Clause 5. Applicable State Contract Law Are there any applicable state laws? Formation of contract? Place of hearing? Are there any applicable International laws? 26

27 Arbitration Clause 6. Issues subject to Arbitration Will arbitration clause be limited to certain issues? Does Federal/International law prohibit some disputes? Criminal Domestic Relations 27

28 Arbitration Clause 7. Right to seek interim relief in Court Can a party request a Temporary Restraining Order? Is interim relief necessary? Parties are free to provide for interim relief or to prohibit TROs. 28

29 Arbitration Clause 8. Applicable Arbitration Rules How much discovery? Modified Federal Rules of Civil Procedure Parties determine limitations Parties can control costs Arbitrator can resolve disputes Process issues Arbitration hearing commencement Allocation of hearing time 29

30 Arbitration Clause 8. Applicable Arbitration Rules (cont.) Examples You may establish response times and limits No more than 5 depositions of potential witnesses One set of interrogatories One set of request for admissions Guidance It is up to the parties to establish terms It is up to the parties to establish limits 30

31 Arbitration Clause 9. Damages permitted/prohibited What can an arbitrator award or permit? Compensatory Exemplary Punitive and exemplary can be barred 31

32 Arbitration Clause 10. Waiver of Appeal A court won t overturn a wrong or bad decision Vacatur for Misconduct Exceeding authority 32

33 Arbitration Clause 11. Confidentiality Clause Can a decision be published by the Arbitrator? Can the parties publically discuss a decision? Most prefer confidentiality Enforcement Establish a mechanism for enforcement Establish a mechanism for recovery A party in breach of confidentiality shall pay up to $10,000 or actual damages, whichever is greater 33

34 Arbitration Clause 12. Award Requirements Are there state or international requirements? The arbitrator s award shall be in writing, dated and signed by the arbitrator. The award shall state the reasons for arriving at the decision. The arbitrator s award shall be limited to compensatory damages. 34

35 Arbitration Clause 13. Class Action Participation or Bar Is participation binding on a class? Stolt-Neilsen v. AnimalFeeds Cannot impose class arbitration on non-party Can a class be excluded? 35

36 Arbitration Clause 14. Attorneys Fees and Costs You are not going to collect them unless provided for in the agreement. Authority of arbitrator to award attorney fees is governed by contract. Authority of arbitrator to award costs is governed by law. Who pays the arbitrator? Typical Arbitrator Charges Travel Lodging Per Diem Study/Writing Days Cancellation fees Per Diem Rates Vary widely ($500 - $3,500 per day) 36

37 Reference Material Sources for Arbitrators Federal Mediation and Conciliation Service (FMCS) American Arbitration Association (AAA) JAMS National Arbitration Forum (NAF) National Academy of Arbitrators (NAA) Referral 37

38 Reference Material Sources for Arbitrator Evaluation Fee based Labor Fee based management only Labor Recommendations Perhaps the most important reference 38

39 Reference Material Selected works How Arbitration Works, Elkouri & Elkouri Domke on Commercial Arbitration "The Clients Guide to Mediation and Arbitration, Silverman, Peter R. 39

40 Questions for Presenters? James H. Falk, Sr. George Washington University Law School Washington, D.C. Peter Silverman Shumaker, Loop & Kendrick Toledo, OH Martin Welles U.S. Postal Service Washington, D.C.

41 ADR Webinar Series Presented By the IADC Alternative Dispute Resolution Committee Thank you for Participating! Stay Tuned for other topics this Fall such as: Selecting Arbitrators and Mediators/Preparing the Client for ADR The Winning ADR Presentation Best Practices and Pitfalls of Mediation Enforcement of Mediation Agreements and Arbitral Awards How to Win the Impossible Case in an Impossible Jurisdiction Watch your inbox for more information! Upcoming Webinars and additional information can also be found on our website: