On April 4 we reported on 14 Penn Plaza LLC v. Pyett, ___ U.S. ___ (2009) (Thomas, J.) (available here), as did many others last week. Professor Sarah Cole of the ADR Prof Blog published a thoughtful and well-written piece on Pyett (available here), which raised some interesting questions. For example, Professor Cole observed that “if the Arbitration Fairness Act passes, it would not surprise me to see a subsequent effort to overturn the Pyett decision.” As discussed in a series of posts we are publishing on the Fairness Act (Part I available here), the Act would render arbitration agreements falling within the scope of the FAA invalid and unenforceable to the extent they require predispute arbitration of consumer, employment, franchise and statutory civil rights disputes. Continue Reading »
Posts Tagged ‘Federal Arbitration Act’
Some Interesting Questions Raised by the Pyett Decision
April 7th, 2009 Arbitrability, Authority of Arbitrators, Legislative Developments, United States Supreme Court 4 Comments »What does the Arbitration Fairness Act of 2009 Have to Say About Commercial and Industry Arbitration Involving Sophisticated Parties? (Part IIIB)
April 6th, 2009 Arbitrability, Authority of Arbitrators, Legislative Developments Comments Off on What does the Arbitration Fairness Act of 2009 Have to Say About Commercial and Industry Arbitration Involving Sophisticated Parties? (Part IIIB)Part IIIB: Interpreting Proposed Section 2(c) Narrowly
Introduction
In Part IIIA we discussed what we call the “Broad Construction” of the Arbitration Fairness Act of 2009, and showed how the Act could be construed to abrogate in all commercial disputes: (a) the doctrine of severability; and (b) deferential review under the Federal Arbitration Act (“FAA”) of arbitrator determinations of arbitrability in cases where the parties clearly and unmistakably submit arbitrability questions to the arbitrators (the “Own Jurisdiction Rule”). In this Part IIIB and in Part IIIC we discuss the “Narrow Construction”, which would limit the scope of Proposed Section 2(c) to situations where the party resisting arbitration claims that the arbitration clause requires predispute arbitration of consumer, franchise, employment or statutory civil rights disputes. Continue Reading »
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14 Penn Plaza LLC v. Pyett: A Step Toward Bringing Federal Labor Law Arbitrability Rules in Line With Their FAA Counterparts?
April 4th, 2009 Arbitrability, Authority of Arbitrators, United States Supreme Court 2 Comments »On April 1 the United States Supreme Court decided 14 Penn Plaza LLC v. Pyett, ___ U.S. ___ (2009) (Thomas, J.), an interesting case that highlights some of the differences between labor arbitration governed by the National Labor Relations Act (“NLRA”) and arbitration governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “FAA”). The question before the Court was whether “a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate [Age Discrimination in Employment Act (“ADEA”)] claims is enforceable as a matter of federal law.” Slip op. at 25. Reversing the United States Court of Appeals for the Second Circuit, the Court said “yes.” See slip op. at 25. Continue Reading »
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What does the Arbitration Fairness Act of 2009 Have to Say About Commercial and Industry Arbitration Involving Sophisticated Parties? (Part IIIA)
April 1st, 2009 Arbitrability, Authority of Arbitrators, Legislative Developments Comments Off on What does the Arbitration Fairness Act of 2009 Have to Say About Commercial and Industry Arbitration Involving Sophisticated Parties? (Part IIIA)Part IIIA: Interpreting Section 2(c) of the Fairness Act to Apply to Domestic Arbitration Proceedings Involving Sophisticated, Commercial Entities
Introduction
In Part I we provided general background on the Arbitration Fairness Act of 2009 (the “Fairness Act”) and said it was likely to generate litigation over the allocation of power between courts and arbitrators in commercial arbitration proceedings involving sophisticated, commercial entities. In Part II we briefly discussed why litigation will likely occur if the Act becomes law.
In this Part IIIA we discuss what we call the “Broad Construction” of the Fairness Act, under which it is construed to abrogate in all commercial disputes: (a) the doctrine of severability; and (b) deferential review under Federal Arbitration Act (“FAA”) Sections 10 and 11 of arbitrator determinations of arbitrability in cases where the parties unambiguously submit arbitrability questions to the arbitrators. This construction would limit fairly significantly the power of arbitrators in commercial disputes involving sophisticated parties.
In Section IIIB we shall discuss the “Narrow Construction”, which would limit the scope of Section 2(c) to situations where the party resisting arbitration claims that the arbitration clause requires predispute arbitration of consumer, franchise, employment or civil rights disputes. This construction would not alter the allocation of power between courts and arbitrators in commercial disputes involving commercial entities.
[Note: We previously said we would cover both constructions in a single post. We have concluded, however, that it would be easier on our readers if we addressed each separately. ] Continue Reading »
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Nuts & Bolts: When is an Arbitration Award a Final Award and Why Does it Matter?
March 30th, 2009 Authority of Arbitrators, Awards, Functus Officio, Nuts & Bolts: Arbitration Comments Off on Nuts & Bolts: When is an Arbitration Award a Final Award and Why Does it Matter?In this first “Nuts & Bolts” post we briefly review the general rules concerning the finality of arbitration awards under the Federal Arbitration Act (“FAA”), and note some of the consequences that flow from finality. Our principal focus is on Second Circuit finality rules. The rules in other circuits may differ. Continue Reading »
