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ContractsProf Blog: Resistance to Arbitration Ruled Quixotic

May 18th, 2012

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More Administrative Agency Actions on Arbitration

May 18th, 2012


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A few months ago I posted about actions that FINRA and the NLRB were taking in support of allowing class arbitration, and those agencies have recently taken additional actions that help consumers or employees with relatively low dollar claims.

The NLRB brought a complaint against 24 Hour Fitness USA, Inc.  The complaint alleges that 24 Hour Fitness’s requirement that all of its employees waive their rights to any type of collective or class action suits — whether in arbitration or litigation — “violates protections guaranteed by the National Labor Relations Act.”   The complaint cites seven instances where classes of employees were claiming wage and hour violations and 24 Hour Fitness moved to compel those plaintiffs to individual arbitrations. 

FINRA also recently approved a change in its arbitration rules.  In recognition that $25,00 is no longer the cutoff for “smallish” claims, FINRA raised the dollar limit for its simplified and streamlined arbitration from $25,000 to $50,000.  Cases under $50,000 can now be heard by one arbitrator on written submissions with expedited discovery.   This should help securities customers with lower damages afford to prosecute their claims.

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Court's role in reviewing an arbitration award limited when the …

May 15th, 2012

In affirming the arbitration award the Appellate Division
noted that “In circumstances when the parties agree to submit their
dispute to an arbitrator, courts generally play a limited role,” citing New
York State Correctional Officers & Police Benevolent Assn. v State of New
York
, 94 NY2d 321 wherein the Court of Appeals said that “[A]n
arbitrator’s award should not be vacated for errors of law and fact committed
by the arbitrator and the courts should not assume the role of overseers to
mold the award to conform to their sense of justice.”*

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03704.htm

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Repsol is the first step to international arbitration of the …

May 15th, 2012

EFE

open now in six months for both sides to try to reach a settlement before filing a lawsuit Repsol. Important data that increases the tension between Argentina and Repsol.

Repsol sent a letter to the President of Argentina, Cristina Fernandez, who has declared the existence of a dispute over the nationalization of 51% of YPF, the Spanish oil company, the first step taken to bring the case to international arbitration .

Repsol sources said on Tuesday that the oil company believes that the measures taken by the Argentine Government, the Contracting promotion and protection of investments hurt and that this dispute is before the International Centre be resolved for Settlement of Investment Disputes of the World Bank (ICSID). open now in six months for both sides to try to reach an agreement before the Repsol it really a wish arbitration before ICSID reach. More information coming soon


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Posts Related to Repsol is the first step to international arbitration of the nationalization of YPF

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China: Int'l arbitration weird @ Philippine News

May 12th, 2012

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MANILA, Philippines – China sees the submission of the dispute over Panatag (Scarborough) Shoal to international arbitration as a “weird” thing in international affairs.

At a press conference in Beijing on Tuesday, Chinese Foreign Ministry spokesman Hong Lei said China has sovereignty over the shoal, also called Bajo de Masinloc in old Philippine maps.

“Isn’t it a weird thing in international affairs to submit a sovereign country’s territory to international arbitration?” he said. “What a chaos the world will be in if this happens.” 

Hong said China has full historical and jurisprudential evidence of its sovereignty over the shoal.

“Whatever the Philippines do or say regarding the sovereignty of the island cannot alter the fact that the island belongs to China,” he said.

Hong said the Philippines unilaterally provoked the situation in Panatag Shoal.

Over time the Philippines has been escalating the situation regardless of the consequences, he added.

Last July, Foreign Affairs Secretary Albert del Rosario first raised to Chinese Foreign Minister Yang Jiechi and Vice President Xi Jinping the issue of bringing the Philippine and Chinese claims to the International Tribunal on the Law of the Sea (ITLOS).

However, the response Del Rosario received was that the Philippines and China should undertake to settle the matter bilaterally and not to use a dispute settlement mechanism.

“So effectively they said no to our suggestion that we take it to international arbitration,” Del Rosario said.

Chinese Foreign Ministry spokesperson Liu Weimin accused the Philippines of unilaterally misinterpreting the United Nations Convention on the Law of the Sea (UNCLOS).

“Its (Philippines) claim of a ‘200 nautical miles of exclusive economic zones’ has impaired China’s territorial claim, which is in itself against international law. International rules are made jointly by all countries in the world, and countries, big or small, should abide by them. We believe the public are able to tell right from wrong,” Liu said.

China warned on Monday the Philippines about preparations Beijing has made to respond to any escalation of the situation in the area.

On Monday, Vice Foreign Minister Fu Ying summoned Alex Chua, charge d’affaires of the Philippine embassy in Beijing, to make a serious representation over the current

Article source: http://www.philstar.com/Article.aspx?articleId=806143&publicationSubCategoryId=63

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ADR Prof Blog: CFPB will begin study of consumer arbitration – ADR …

May 12th, 2012

ADR Prof Blog: CFPB will begin study of consumer arbitration www.indisputably.org/?p=3564

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Lagos Court of Arbitration (LCA) Employs Executive Secretary: May …

May 9th, 2012

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Hong Kong Court of Appeal issues landmark … – Arbitration News

May 9th, 2012

Herbert Smith’s Hong Kong arbitration practice has secured an important victory in an appeal against the setting aside of an ICC award.

 In Pacific China Holdings Ltd v. Grand Pacific Holdings Ltd CACV 136/2011, the Hong Kong Court of Appeal has today overturned a first instance decision to set aside an ICC award for alleged violations of Article 34(2) of the UNCITRAL Model Law. Click here for a copy of the decision.

In a judgment dated 29 June 2011, the Court of First Instance set aside the award in favour of Grand Pacific Holdings on the basis of breaches of Article 34(2)(a)(ii) and (iv) of the UNCITRAL Model Law on International Commercial Arbitration. Hong Kong, like many jurisdictions around the world, adopts the Model Law as part of its arbitration legislation. Article 34(2)(a) provides that the court may set aside an arbitral award if (among other things) the applicant can show that it has been unable to present its case, or that the arbitral procedure was not in accordance with the agreement of the parties.

The Court of Appeal has now reversed that decision, holding that there were no breaches of Article 34(2)(a) of the UNCITRAL Model Law and making clear that in order to establish a breach, it must be shown that the tribunal’s conduct was of a “serious” or even “egregious” nature.  The Court also placed a heavy emphasis on the wide, discretionary case management powers of the arbitral tribunal, which are a cornerstone of international arbitration, thereby demonstrating that the Hong Kong courts will be slow to interfere with the procedural decisions of arbitral tribunals.

The Court accepted in obiter comments that the Court has discretion not to set aside awards even where a violation of Article 34(2)(a) is established, if it is satisfied that the result could not have been different. The Court also held that the burden is on the applicant wishing to set aside an award to show that it had been, or might have been, prejudiced by the conduct of the tribunal.

The strong indication that the Hong Kong courts will not readily review procedural decisions made by the tribunal is a welcome sign of the strong support of the judiciary for arbitration.  The judgment leaves the law on setting aside in Hong Kong in line with international standards, and is likely in time to contribute to the jurisprudence in this area in other UNCITRAL Model Law jurisdictions. As such, this is a welcome and well-reasoned judgment that underlines Hong Kong’s status as an arbitration-friendly jurisdiction and illustrates the principle that arbitral awards should be set aside in only the rarest of circumstances, where the tribunal’s conduct has been egregious. 

 

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The Difference Between Mediation and Arbitration and The Hearing Process

May 6th, 2012

Sandra J Franklin explains the difference between a Mediation and an Arbitration Hearing. To learn more join her at technologyadr.com

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DELL wins ten domain names in arbitration | ErikWestlake.com

May 6th, 2012

An arbitrator with the National Arbitration Forum has awarded ten domain names to DELL.The company submitted a complaint to the National Arbitration Forum on March 9,2012 ,asserting legal rights over the disputed domain names.

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