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Back to Basics - Chalkboard
The words Back to Basics written on a chalkboard
Pick up any textbook or treatise on arbitration law, and you’ll find the same thing in the chapter on enforcing arbitral awards: courts cannot conduct a merits review of awards. Courts, in other words, do not second guess the conclusions of the arbitrators about law or facts. Or at least they’re not supposed to do so. Still, losing parties often try to convince a reviewing court that the arbitrator “exceeded her powers.”  These sorts of…
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After an arbitrator overturned the termination of a Seattle police officer accused of punching a handcuffed suspect (award), the District Court judge overseeing a consent decree concerning police use of force issued an Order to Show Cause questioning whether the City was meeting its obligation to maintain effective compliance with the terms of the decree. Specifically, the Court requested a response on several questions, including: Whether the events surrounding the [Disciplinary Review Board’s]…
Liz has written before about the ways that state courts sometimes try to resist SCOTUS’s love affair with arbitration.  Resistance can come in many and varying forms, some more subtle than others. One persistent source of confusion in arbitration law, and thus a locus for resistance, centers on delegation clauses. As a quick refresher, in the United States, courts decide questions of arbitrability (questions about the proper scope of an arbitration agreement as well as the…
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When Liz first told me that she was going to be our state’s new Solicitor General, I was overwhelmed, feeling a great wave of pure, abject panic. Don’t get me wrong, Liz is going to be an outstanding Solicitor General, and Minnesota couldn’t be luckier to have her. In fact, I think hiring her for the gig is one of the smartest things Minnesota has done in years. Yay Minnesota. But come on Liz, what…
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As many of you know from LinkedIn or Twitter, I have accepted an exciting new position. I will be Minnesota’s Solicitor General starting next week.  Because I want to give my full attention to serving this great state, I need to step back from ArbitrationNation. Thankfully, however, I have a wonderful replacement lined up.  My friend and fellow arbitration geek, Prof. Henry Allen Blair, has agreed to serve as the primary blogger here. I trust…
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It is twelve years since an ICSID tribunal dismissed World Duty Free’s claim against the Republic of Kenya for breach of a lease agreement signed in 1989. As is well known, the claimant obtained the contract with a $2 million bribe to former President Moi, and the tribunal held, inter alia, that it could not uphold a claim based on a contract obtained through corruption, deeming it contrary to international public policy (World Duty Free Company …
The Paris Court of Appeals recently upheld an arbitral award applying OHADA law. The application to set aside the award had been brought by the State of Cameroon based on arguments made under Cameroonian law. However, the Court applied OHADA law over Cameroonian law, in the process confirming the supranational nature of OHADA law. This is therefore an interesting decision which shows the courts of a state external to OHADA confirming that law’s pre-eminent stature.…
A very high percentage of employment claims are resolved through mediation. This article addresses best practices in planning, strategy and advocacy in the mediation process. Part 2 of this article discusses the middle and end stages of mediation- from first offers through planning settlement moves in the negotiation process, through closing the gaps between the parties, breaking impasse, reaching an agreement and documenting it. Set the stage with your opening offer. Given your case valuation,…
First, SCOTUSblog referenced “arbitration nation” last fall, which was flattering.  Then last week the Ninth Circuit declared: “we have become an arbitration nation.”   That was basically the title of my first post on this blog seven years ago!  (“We are becoming an arbitration nation.”) I am going to turn up the  Janet Jackson  (“Rhythm Nation”) and feel smugly validated while I draft the rest of this post.  Because there is more to…
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That is the question raised in a recent Petition filed by Public Service Company of New Mexico seeking to overturn an award of Arbitrator John Fletcher.Grievant had been terminated for an alleged safety violation which resulted in his injury. Arbitrator Fletcher sustained the grievance and reversed the termination. As to remedy, he ordered the Company to reinstate grievant and compensate him for wages and benefits lost. The award further provides The only offsets the Company…