From time-to-time the Loree Reinsurance and Arbitration Law Forum will be featuring guest bloggers. We are honored that Victoria Van Buren of Disputing has accepted our invitation to guest blog, and expect within the next week or so to feature her post concerning Fifth Circuit standards of review under Section 10(a)(4) of the Federal Arbitration Act in the wake of Citigroup Global Markets, Inc. v. Bacon, ___ F.3d ___ (5th Cir. 2009), in which the Court held that manifest disregard of the law is no longer an independent ground for vacatur under the Federal Arbitration Act. We expect that Victoria will be submitting other guest blog posts in the future, and look forward to featuring them. We shall also be inviting others to guest blog here at the Forum.
On a related matter, I am pleased and honored to note that Victoria has invited me to guest blog for Disputing this Monday, April 27, 2009. My post will propose some solutions to the problems that the Arbitration Fairness Act of 2009 will likely create in disputes between commercial entities. Readers may recall that we discussed those problems in considerable detail in our multi-part post on the Arbitration Fairness Act entitled “What Does the Arbitration Fairness Act of 2009 Have to Say About Commercial and Industry Arbitration Involving Sophisticated Parties?” (available here). Our preferred solution would be that Congress not enact the Arbitration Fairness Act in the first place, but the post is written on the hopefully mistaken assumption that Congress decides to jump onto the anti-arbitration bandwagon.
Speaking of the anti-arbitration bandwagon, keep your eyes on the blogosphere this coming week, because Wednesday, April 29, 2009, is Arbitration Fairness Day (blogged here and here), which will be celebrated by a press conference on Capitol Hill in support of the Arbitration Fairness Act and other anti-arbitration legislation. There will no doubt be many complaints by persons who perceive themselves as “victims” of arbitration, and who assume (correctly or incorrectly) that they would have fared better in court. But we also expect to see level-headed posts calling for restraint, explaining the importance of identifying problems with empirical – not anecdotal – evidence, and advocating narrowly-tailored solutions to the extent that pervasive problems are identified. Let’s not throw the proverbial baby out with the bathwater.
Finally, early this coming week we expect to post our critical analysis of the Second Circuit’s recent decision in ReliaStar Life Ins. Co. v. EMC National Life Co., ___ F.3d ___ (2d Cir. 2009) (blogged here), in which the Court held that an arbitration panel in a reinsurance case was authorized to award attorney fees for a party’s alleged bad faith conduct in the arbitration, even though the parties agreed that each would bear its own attorney fees. As we shall see, even a court as highly-respected and influential as the Second Circuit can occasionally render decisions that are open to question, and Judge Pooler’s dissent in that case is recommended reading. We wonder if the decision would withstand review en banc.
Stay tuned. . . .
Tags: Arbitration Fairness Act, Arbitration Fairness Day, Citigroup Global Markets, Federal Arbitration Act, Inc. v. Bacon, ReliaStar Life Ins. Co. v. EMC National Life Co.
