Archive for the ‘Disinterestedness’ Category

Significant Developments in U.S. State Arbitration Law: the Virginia Arbitration Fairness Act

May 8th, 2026 American Arbitration Association, Anti-Arbitration Statutes, Applicability of Federal Arbitration Act, Application to Appoint Arbitrator, Application to Stay Arbitration, Arbitrability, Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Fees, Arbitration Law, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Arbitrator Duty to Disclose, Arbitrator Selection and Qualification Provisions, Attorney Fees and Sanctions, Awards, Challenging Arbitration Agreements, Challenging Arbitration Awards, Choice-of-Law Provisions, Class and Collective Proceedings, Commonwealth of Virginia Courts, Conflict of Laws, Conflict-of-Law Rules, Consumer Arbitration, Default in Proceeding with Arbitration, Disinterestedness, Employment Arbitration, Evident Partiality, Exceeding Powers, FAA Chapter 1, FAA Preemption of State Law, FAA Section 2, Federal Arbitration Act Section 10, Federal Arbitration Act Section 2, First Principle - Consent not Coercion, Independence, Judicial Review of Arbitration Awards, Mass Arbitration, Party-Appointed Arbitrators, Petition to Vacate Award, Post-Award Federal Arbitration Act Litigation, Post-Dispute Arbitration Agreements, Practice and Procedure, Predispute Arbitration Agreements, Rights and Obligations of Nonsignatories, Section 2, Section 3 Default, State Arbitration Law, State Arbitration Statutes, State Courts, Statute of Limitations, Stay of Arbitration, Vacate, Vacate Award | 10(a)(2), Vacate Award | 10(a)(4), Vacate Award | Evident Partiality, Vacate Award | Exceeding Powers, Virginia Arbitration Law No Comments »

Virginia Arbitration Fairness Act: Part I of a Two-Part Post

Virginia Arbitration Fairness Act

Virginia has enacted a targeted arbitration statute that is likely to generate FAA preemption litigation. Chapter 490, Senate Bill 227 (“SB 227”), signed into law on April 8, 2026, amends Virginia’s arbitration statute and adds a new Article 3 to Chapter 21 of Title 8.01, titled the “Arbitration Fairness Act.” 2026 Va. Acts ch. 490; Va. Code §§ 8.01-581.017-.021 (effective July 1, 2026). The Act “shall apply to all arbitration agreements entered into on or after July 1, 2026.” 2026 Va. Acts ch. 490, § 2.

The Act does not purport to prohibit consumer or employment arbitration. Nor does it seek to invalidate categorically pre-dispute arbitration agreements. It instead regulates “high-volume arbitration service providers,” prescribes arbitrator-selection procedures, imposes detailed disclosure obligations, restricts certain provider relationships, regulates invoices and fee payment, creates tolling rules, and authorizes civil remedies and State Corporation Commission penalties. It also adds a new state-law vacatur ground for an award “rendered by an arbitrator selected in violation of” the Act. Va. Code §§ 8.01-581.010(6), 8.01-581.017-.021. That last provision, combined with the disclosure requirements, is a significant consideration in, among other things, evident partiality disputes, and exceeding-powers challenges based on violation of the Act’s provisions concerning  arbitrator selection. Continue Reading »

Flores Second Circuit Arbitration Decision Rejects the NFL’s Constitution’s “Arbitration” Provision, Saying it is “Arbitration in Name Only”

August 29th, 2025 Applicability of the FAA, Application to Compel Arbitration, Arbitrability, Arbitrability | Existence of Arbitration Agreement, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitrator Selection and Qualification Provisions, Disinterestedness, Effective Vindication Doctrine, Evident Partiality, FAA Section 10, Federal Arbitration Act Section 10, Grounds for Vacatur, Independence, LMRA Section 301, Questions of Arbitrability, Section 10, Section 4, Sports Arbitration, Unconscionability, United States Court of Appeals for the Second Circuit, Vacate Award | 10(a)(2), Vacate Award | Evident Partiality 1 Comment »

Flores Second Circuit Arbitration Decision

The Flores Second Circuit Arbitration Decision and the Scope of the FAA

Introduction

The Flores Second Circuit arbitration decision, Flores v. N.Y. Football Giants, Inc., No. 23-1185-cv, slip op. (2d Cir. Aug. 14, 2025), may be a watershed moment in federal arbitration law. In rejecting the National Foot Ball League (“NFL”)’s attempt to compel arbitration, the court held that the league’s dispute resolution provision—vesting unilateral authority in the Commissioner, an executive officer of one of the arbitration opponent’s adversaries —was “arbitration in name only” and thus unprotected by the Federal Arbitration Act (FAA). Beyond its immediate implications for Brian Flores’s racial discrimination claims, the ruling could (and should) reshape how courts evaluate the independence, neutrality, and fundamental fairness of dispute resolution agreements that are alleged to be FAA-governed arbitration agreements, particularly in employment and sports law contexts.

The Flores Second Circuit decision, authored by United States Senior Circuit Judge José A. Cabranes, may have far reaching consequences concerning the scope of the Federal Arbitration Act, the enforceability of  dispute resolution agreements, and the viability and applicability of the “effective vindication” doctrine. It also has the potential to—and should—change for the better the legal landscape governing post-award evident partiality challenges. (For discussions of evident partiality see here, here, here, here, and here.)

In Flores the Court held NFL coach Brian Flores was not required to arbitrate his 42 U.S.C. § 1981 racial discrimination claims against the NFL, the New York Football Giants, the Denver  Broncos, and the Houston Texans. Flores agreed to the NFL’s dispute resolution scheme, which was set forth in  Constitution and Bylaws of the National Football League (the “NFL Constitution”) and incorporated by reference into two of Flores’s club-specific employment agreements.

That NFL dispute resolution scheme purported to designate the NFL Commissioner— who runs the league and works for the franchise owners Flores accused of race discrimination—as the arbitrator.  The Second Circuit held that “Flores’s agreement under Continue Reading »