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Posts Tagged ‘Diamond Waterproofing’

Ineffective Objections and Untimely Filings Lead to FAA Forfeiture: Sivanesan v. YBF, LLC, ___ A.D. 3d ___, 2024 N.Y. Slip Op. 4327 (2d Dep’t 2024)

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Objections Must be Timely and Effective in Federal Arbitration Act Litigation, Including Litigation Relating to Consulting AgreementsA good chunk of FAA practice and procedure —including FAA practice and procedure in state court—involves knowing when, how, and why to make timely and effective objections and filings in arbitration enforcement litigation.  Sivanesan v. YBF, LLC, ___ A.D. 3d ___, 2024 N.Y. Slip Op. 4327 (2d Dep’t 2024), which New York’s Appellate Division, Second Department, decided on August 28, 2024, illustrates this point well.

Appellants were not signatories to the arbitration agreement, did not agree to arbitrate any matters, and did not clearly and unmistakably agree to arbitrate questions of arbitrability. But the Court found that they participated in the arbitration without lodging adequate objections to the arbitrator’s jurisdiction and did not timely file in the confirmation litigation their petition to vacate the awards at issue. Accordingly, the Appellants were—by their participation in the arbitration without effective objections to the arbitrator’s jurisdiction—deemed to have impliedly consented to arbitrate all issues before the arbitrator, including whether they were bound by the contract and arbitration agreement as successors-in-interest. Not a happy place to be.

Background

The transactions pertinent to Sivanesan began in 2008 when YBF, LLC (“YBF”) sold to Cosmetics Specialties, East LLC (“CSE”) an exclusive license to Continue Reading »

What Standards Apply to Lance Armstrong’s Putative Challenge to the $10,000,000.00 Arbitration Award?

March 1st, 2015 Arbitrability, Arbitration Agreements, Arbitration Practice and Procedure, Authority of Arbitrators, Choice-of-Law Provisions, Contract Interpretation, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, FAA Preemption of State Law, Judicial Review of Arbitration Awards, New York Convention, Practice and Procedure, State Courts, Texas Supreme Court, United States Supreme Court Comments Off on What Standards Apply to Lance Armstrong’s Putative Challenge to the $10,000,000.00 Arbitration Award?

SCA v. Armstrong:

Anatomy of an Arbitration Award—Part II

What Standards Apply to Lance Armstrong’s Putative Challenge to the Arbitrators’ $10,000,000.00 Sanctions Award?

 

yay-10447276-digitalAs discussed in Part I, if Lance Armstrong (“Armstrong”) and Tailwind Sports Corp. (“Tailwind”) (collectively, the “Armstrong Parties”) challenge the Armstrong Arbitration Award, that challenge will be based on the Panel allegedly exceeding its powers. To meaningfully assess whether the Panel exceeded its powers we need to consider what law applies. Continue Reading »

ROM Management Reinsurance Mgt. Co. v. Continental Ins. Co.: Can Parties Agree State Arbitration Law Governs their Arbitration even if the Federal Arbitration Act Applies?

April 15th, 2014 Arbitrability, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration Practice and Procedure, Authority of Arbitrators, Choice-of-Law Provisions, Contract Interpretation, New York Court of Appeals, New York State Courts, Nuts & Bolts: Arbitration, Practice and Procedure, Reinsurance Arbitration, State Arbitration Law, Statute of Limitations, Stay of Arbitration, United States Supreme Court Comments Off on ROM Management Reinsurance Mgt. Co. v. Continental Ins. Co.: Can Parties Agree State Arbitration Law Governs their Arbitration even if the Federal Arbitration Act Applies?

Introduction

The Federal Arbitration Act (the “FAA”)’s ordinarily trumps state-law rules of arbitrability in state- and federal-court  disputes involving agreements falling under it.  But what happens when parties to an FAA-governed arbitration agreement have agreed that state law governs their agreement, or the enforcement of their agreement?

Odd as it may seem, the FAA allows parties to agree that state-law rules of arbitrability govern if the parties unambiguously agree that they govern, even if the result is that an issue subject to arbitration under the FAA is excluded from arbitration because of the parties’ choice of state arbitration law. That holds true so long as enforcing the parties’ choice of law does not “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives” of the FAA. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58-64 (1995); Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 474-78 (1989); Diamond Waterproofing Sys., Inc. v. 55 Liberty Owners Corp., 4 N.Y.3d 247, 252-53 (2005); see, generally, Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, __, 130 S. Ct. 1758,1773-74 (2010). Because the whole point of the FAA is to promote arbitration by enforcing the parties’ arbitration agreement according to its terms, and because parties are free to clearly exclude issues from the scope of their arbitration agreement, giving effect to a applying a state-law rule of arbitrability does not contravene the FAA or its purposes and objectives. See Stolt-Nielsen, 130 S. Ct. at 1773 (“[W]e have said on numerous occasions that the central or primary purpose of the FAA is to ensure that private agreements to arbitrate are enforced according to their terms.”), 1774 (“Underscoring the consensual nature of private dispute resolution, we have held that parties are generally free to structure their arbitration agreements as they see fit[].  .  .  .  [and] may agree to limit the issues they choose to arbitrate.  .  .  .”) (quotations and citations omitted); Volt, 489 U.S. at 476-78.

In Re Rom Management Reinsurance Mgt. Co. v. Continental Ins. Co., ___ A.D.3d ___, 2014 N.Y. Slip Op. 01546 (1st Dep’t March 11, 2014).  New York’s Appellate Division, First Department (New York’s intermediate appellate court with jurisdiction over New York and Bronx Counties (i.e., New York City’s Boroughs of Manhattan and the Bronx)), succinctly demonstrated how the parties’ unambiguous agreement to apply state-law arbitrability rules can narrow the issues that the parties would have been required to submit to arbitration had FAA rules of arbitrability applied. Continue Reading »