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Archive for the ‘General’ Category

Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act

November 13th, 2013 Arbitration Agreements, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, General, Grounds for Vacatur, Practice and Procedure, Small Business B-2-B Arbitration, United States Supreme Court Comments Off on Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act

Part II:

A Consent-Based Framework

for Making and Enforcing Arbitration Awards

Introduction

In Part I we argued that improving arbitration in general—and the award making and enforcement process in particular—requires persons with a stake in arbitration’s success to adjust how they think about arbitration. We also argued that the purposes and objectives of the Federal Arbitration Act (the “FAA”) provide a relatively simple analytical framework which, if consistently and properly applied, can help persons with a stake in arbitration’s continued success make decisions that should help facilitate the achievement of that goal.

This Part II discusses that analytical framework, which is based on United States Supreme Court interpretations of the FAA and its purposes and objectives. It posits that arbitration’s improvement and continued success as a dispute resolution mechanism for a broad range of disputes depends on it being an attractive alternative to litigation, and that arbitration can remain such an attractive alternative for a broad range of disputes only if courts, arbitrators, and parties fully and forthrightly accept that arbitration is a matter of contract, and that the awards that it yields should be freely and summarily enforced, provided that they represent a legitimate product of the agreement to arbitrate. Continue Reading »

Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act

November 12th, 2013 Arbitration Agreements, Arbitration Practice and Procedure, Awards, General, Judicial Review of Arbitration Awards, Small Business B-2-B Arbitration Comments Off on Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act

Part I:

An Introduction to the Problem and its Solution

Arbitration can be a very effective way of resolving a wide range of disputes arising out of many legal and commercial relationships. It can benefit the parties if they make informed decisions about agreeing to it, and craft their agreement accordingly. It can benefit the courts and the general public by shifting to the private sector dispute-resolution costs that the public-sector would otherwise bear.

Arbitration is not a perfect form of dispute resolution (and none is, including court litigation). That is so even when parties carefully draft their arbitration agreements, and the parties, arbitrators, arbitration service providers and courts do their best to ensure the integrity and reliability of the process and otherwise strive to protect the legitimate expectations of the parties. But at least over the last couple of decades or so, arbitration has, in the opinion of many, become a less attractive alternative to court litigation than it was intended to be, could be and once was. Continue Reading »

Small Business B-2-B Arbitration Part II.A: The Nature and Purpose of Arbitration

July 12th, 2013 Arbitration Agreements, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, General, Making Decisions about Arbitration, Mediation, Negotiation, Practice and Procedure, Small Business B-2-B Arbitration Comments Off on Small Business B-2-B Arbitration Part II.A: The Nature and Purpose of Arbitration

The long- and short-term success of a business is generally measured by the economic benefits it produces for its investors.  Most business decisions require a business to accept risks of varying severity and frequency if the business is going to realize a meaningful return on investment.  All else being equal, to increase the likelihood that those decisions will yield profits, the business must accurately assess all material risks, their corresponding benefits and the interplay between the two.

The same holds true for the decision whether to make an arbitration agreement part of a business transaction, and if so, on what terms.  But in the author’s experience otherwise savvy and intelligent small-business-persons frequently view an arbitration agreement as a throw-in term that isn’t likely to affect materially the risk-benefit calculus of the transaction as a whole.  These business persons are therefore likely to agree to arbitrate with a more economically powerful counterpart without giving the matter much thought, let alone the careful thought they devote to the price and performance terms of the deal.  This approach, as a number of business people have learned the hard way over the years, can result in a very frustrating and potentially debilitating one-two punch:  dashed reasonable expectations coupled with very little, if any, meaningful judicial review. Continue Reading »

Loree Reinsurance and Arbitration Law Forum Nominated for Inclusion in LexisNexis Insurance Law Community’s Top 50 Insurance Law Blogs!

June 27th, 2010 ADR Social Media, Claims Spot, General Comments Off on Loree Reinsurance and Arbitration Law Forum Nominated for Inclusion in LexisNexis Insurance Law Community’s Top 50 Insurance Law Blogs!

This blog, along with several other insurance-law-related blogs, has been nominated for inclusion in LexisNexis Insurance Law Community’s Top 50 Insurance Law Blogs.  But we haven’t made the final cut yet — LexisNexis will select the winners after a comment period that ends this June 30, 2010. 

According to the post announcing the initial nominees (here):

As many of you know, there are blogs, and then there are blogs. When we consider a blog for membership in ILC’s annual Top 50, we look for frequent posts, timely topics, and quality writing. Only the best may gain admission. Our readers have come to expect nothing less, and we wouldn’t have it any other way.  (emphasis in original)

If you read and enjoy the Loree Reinsurance and Arbitration Law Forum, we would be grateful if you would post a comment at the LexisNexis Insurance Law Community site recommending us for inclusion in the final Top 50 list.  Instructions on how to do so are here

We also note that our good friend Marc Lanzkowsky’s blog, The Claims SPOT, was included in the initial list of nominees.  If you are not already familiar with Marc’s blog, then we urge you to check it out, because we think you’ll like what you see.  And whether or not you are already familiar with Marc’s blog, if you share our view that it should be included in the final top 50 list, then please be sure to let LexisNexis know here.

Many thanks to all of our readers for your continued support!

EDITOR’S NOTE:  LexisNexis has advised us that the comment period has now been extended to July 9, 2010. 

Some New and Useful Resources for Arbitration and Mediation Fans Courtesy of Don Philbin and Victoria Pynchon

January 17th, 2010 ADR Social Media, General, Twitter 2 Comments »

Our friends Victoria Pynchon and Don Philbin recently contributed to the ADR blogosphere some excellent, new resources.  First, Victoria has transferred stewardship of her IP ADR Blog  — which focuses on arbitration, mediation and negotiation issues pertinent to intellectual property disputes — to our friend Professor Eric van Ginkel, and started a new blog with a broader scope:  the Commercial ADR Blog.  The blog’s tag line is “Business Solutions to Justice Issues,” and, as its title suggests, it covers the entire spectrum of  issues pertinent to commercial ADR.  You can visit it here, or access it via our blogroll. 

The Commercial ADR Blog reflects the high-quality writing and insightful analysis that we have come to expect from Victoria’s Settle It Now blog, and the IP ADR Blog.  It also has a very pleasing layout and uses pictures very effectively — another characteristic of Victoria’s blogs, especially Settle It Now.  In fact, every time I check out Settle It Now or Commercial ADR, I make a mental note to learn how to use effectively the pictures function in WordPress!   (By the way, another blog that uses pictures effectively is Disputing, Karl Bayer’s and Victoria VanBuren’s excellent blog.)  

Few in the ADR business are as indefatigable as Victoria Pynchon, but our friend, and LinkedIn Commercial and Industry Arbitration and Mediation Group Co-Manager Don Philbin is in her league.  Don’s latest contribution to the world of ADR is the ADR Highlight Reel, which you can read here or access via the link in our blogroll.  Don avidly follows more than 100 blogs, many or most of which touch on ADR, or ADR-related topics, like brain science.  Don traditionally flagged articles that he thought were particularly interesting and distributed copies of them by snail mail, and later, by e mail.  With the advent of Twitter, Don set up a system that allows him to tag articles, which, along with a brief description, are automatically posted on Twitter via an RSS feed.  The ADR Hightight Reel consolidates in a single blog post the links to all of Don’s recommended ADR articles for a given period. 

Don’s is an incredibly valuable resource.  Many of us spend hours surfing the web or plowing through Google Reader to keep abreast of ADR-related developments.  Don does all of that work for us and makes it available in one highly accessible format.  Even if you already follow Don on Twitter, and receive his recommendations on a real time basis, article by article, having those recommendations in one spot is a real big plus. 

I suppose a skeptic might question whether he or she should rely on a third person to cull through the 100s of articles pertinent to ADR regularly posted in the blogosphere.  But I can assure readers that Don casts a very wide net with a fairly narrow mesh (I apologize — Sometimes I simply cannot resist fishing-related metaphors, even so-so ones like this!).  The chances of Don not featuring a truly relevant ADR article in his ADR Highlight Reel are, in my humble opinion and experience, slim to none.

Let us all extend our heartfelt thanks to Victoria Pynchon and Don Philbin for their wonderful, new contributions to the ADR blogosphere.

We Just Published our 100th Post!

January 12th, 2010 General Comments Off on We Just Published our 100th Post!

The Loree Reinsurance and Arbitration Law Forum, which was formed in March 2009,  is happy to announce that it just published its 100th post, Arbitration Nuts & Bolts: Vacating Arbitration Awards – Part III.B: Evident Partiality (Enforcing the Parties’ Expectations of Neutrality).  While we do not consider this to be a monumental landmark in the short history of this blog, we are proud of it all the same. 

We would therefore like to take this opportunity to thank our readers for their support, and to express our sincere hope that our first 100 posts have proved to be a useful resource.  Having said that, it is time to get cracking on our next 100 posts!

Acknowledging Some Kind Mentions from Our Fellow Bloggers

December 27th, 2009 General 4 Comments »

We are pleased and flattered to have recently received some kind mentions from some accomplished bloggers.  The Forum covers some fairly arcane, specialized subjects, and we do not expect to draw as large a following as we might otherwise.  So we are always happy when our efforts are noticed and mentioned by other bloggers, and take this opportunity to say “thanks.”  

First, our friend Chris Sherliker, a U.K. solicitor and blogmaster of the Silverman Sherliker Blog (here),  mentioned us in his excellent Blawgreview #243 submission, entitled “Fighting Back:  A Festive Meditation for Lawyers.”  Drawing inspiration from the likes of Winston Churchill, Chris discussed the importance of lawyers fighting the good fight.  Chris singled out a number of bloggers as fighters, including the Loree Reinsurance and Arbitration Law Forum:  “From the sublime to the subject of re-insurance and a particularly interesting blog by Philip J Loree Jr of Loree & Loree who is fighting back to ensure that the limits of arbitral power are kept within proper bounds. Fight on, brother.”  Thanks, Chris, and keep fighting the good fight on behalf of your clients!

Second, our friend Diane Levin, an accomplished mediator, veteran blogger and social media pro,  mentioned us in one of Mediation Channel’s recent Fallacious Arguments of the Month Posts, entitled “In Pursuit of the Red Herring.”  Diane characterized me as “a fierce defender of rational discourse and a highly insightful ADR blogger.”   Thanks Diane — you are far too kind!  You and your blog lead the fight for rational discourse here in the ADR world.  Fight on, sister! 

Third, our friend Tom Johansmeyer, professional writer and blogmaster of  the Reinsurance Blogger,  recently featured the Forum in his feature, “Four Reinsurance Blogs You Can’t Live Without.”    Tom said “The focus here is definitely on the legal side of the business, which means [the Loree Reinsurance and Arbitration Law Forum is].  .  . packed with important, though somewhat dense, information (at least for a simple marketing guy like me). But, if you’re watching reinsurance litigation and dispute resolution, it’s an absolute must-read.”  Tom, thanks so much for giving us the thumbs up! 

Fourth, as we mentioned in a recent post (here),  our friend John DeGroote, the blogmaster of Settlement Perspectives , sought and published our comments in his excellent article “Insurance Coverage: 4 Rules and 10 Tips for Policyholders.”  John, thanks again for thinking of and mentioning us! 

Finally, Akin Gump Strauss Hauer & Feld’s excellent SCOTUSBlog — one of our favorite legal blogs and a go-to source of information on United States Supreme Court litigation — mentioned us in its December 24, 2009 Thursday Round-up feature written by Rhoades Scholar Adam Chandler:  “Finally, at the Loree Reinsurance and Arbitration Law Forum, Philip J. Loree, Jr. offers a detailed analysis of the oral argument in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., a class action arbitration dispute that was argued on December 9.”   Thanks, Adam!

Some Helpful Rules and Tips for Policyholders and Cedents Courtesy of Settlement Perspectives

December 15th, 2009 Commercial and Industry Arbitration and Mediation Group, Follow-the-Settlements/Follow-the Fortunes, General, Negotiation, Reinsurance Allocation, Reinsurance Claims 1 Comment »

Our friend, colleague and fellow Commercial and Industry Arbitration and Mediation Group member, John DeGroote, has written and published in his Settlement Perspectives blog an excellent article offering some very practical and sound guidance to corporate policyholders who are confronted with litigation that may fall within the scope of their liability insurance, and who desire to increase the odds of securing coverage.   John, who is President, Chief Legal Officer and Secretary of management and technology consulting firm BearingPoint, Inc. (formerly KPMG Consulting), was kind enough to seek our input on the article.  It is entitled Insurance Coverage: 4 Rules and 10 Tips for Policyholders, and features a link to a longer, more detailed article John co-wrote on the same subject for an Association of Corporate Counsel  (“ACC”) publication. 

When I read John’s draft the first thing that struck me was that the rules and tips he offers are, for all intents and purposes, applicable to cedents pursuing reinsurance recoveries.  He stresses, among other things, the importance of honesty, good faith, open communication and not colluding with the claimant in an effort to obtain coverage.  These attributes are ones to which diligent, ceded claims personnel should aspire in their dealings with their company’s reinsurers, because they tend to increase the odds of achieving a successful recovery and avoiding time-consuming and expensive reinsurance disputes (all other things being equal). 

John was also kind enough to quote my comments in his article, which are reproduced below: 

As I discussed these rules with Philip J. Loree Jr. at the Loree Reinsurance and Arbitration Law Forum the other day, I learned that they don’t only apply to policyholders –  apparently insurers must live by these same rules to collect from their reinsurers:

You would be surprised how frequently reinsurers contend that the carrier colluded with the policyholder in direct insurance coverage litigation.  If the reinsurer can establish collusion concerning the fact, amount or allocation of coverage, or if the reinsurer otherwise shows that the carrier acted in bad faith, then the reinsurer will usually be relieved of liability for the claim.  Like policyholders making direct insurance claims, carriers making reinsurance claims need to avoid even the appearance of collusion or bad faith, and following rules analogous to yours helps them do that.

Whether you happen to be a corporate or individual policyholder, or a cedent wishing to increase the odds of successfully collecting from reinsurers, John’s fine article comes highly recommended.   In fact if you are at all interested in settlement and ADR, we highly recommend that you follow Settlement Perspectives.  John writes high-quality, insightful and practical  articles on a variety of pertinent topics.  Who could ask for more?

More Posts, Please!

November 14th, 2009 General Comments Off on More Posts, Please!

We owe our readers an apology.  The press of business has been, well, particularly pressing over the past week or so, and we have not posted anything in over a week. 

Please be assured that there are posts in the works and that pretty soon we will be churning them out at a respectable rate once again.  

Stay tuned….

Read the Mediation Channel’s 24 Alternative Dispute Resolution Blogs to Follow

September 6th, 2009 Commercial and Industry Arbitration and Mediation Group, General, Mediation 2 Comments »

Diane Levin, veteran mediator, ADR blogger, and founder of the Mediation Channel and ADRBlogs.com, recently published “Recommended reading: 24 Alternative Dispute Resolution Blogs to Follow,” in which she lists, categorizes and describes 24 ADR blogs that she recommends others follow.  Her list includes all of our favorite ADR blogs, and we intend to include on our blogroll any of the 24 blogs not already on it.  

We were flattered that Diane included the Loree Reinsurance and Arbitration Law Forum on her list, and described it as a “niche blog” that is “distinguished by scholarly, sophisticated discussion and analysis of issues in reinsurance and commercial litigation and arbitration.”   We, like most bloggers (and certainly all of those on Diane’s list), work hard to produce material worthy of publication, and it always makes you  feel appreciated when your efforts are publicly acknowledged.  Thank you, Diane! 

By the way, any list of alternative dispute resolution blogs to follow would be incomplete without mention of Diane’s own blog, the Mediation Channel, and her catalogue of worldwide ADR blogs, ADRblogs.com.  Diane is a very talented writer, and as we have said before (here), her posts really make you think.  She’s been blogging for a number of years now, and she’s one of the best.  But don’t just take our word for it, read her posts! 

She is also an expert on social media, and I have learned much from her about it (and am still learning).  For example, I initially had some reservations about joining Twitter, which I shared with the LinkedIn Commercial and Industry Arbitration and Mediation Group in a discussion post.   Diane’s helpful and informative response convinced me to give it a try, which I did.  I have been on Twitter for just over a week now, and I couldn’t be more pleased with it.  People like Diane are what make social media work, and only a select few are in her league.