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Texas: Arbitration Clause Survives Termination or Repudiation of Contract

The Fort Worth Court of Appeals, in BBVA Compass Investment Solutions, Inc. v. Brooks, held that an agreement to arbitrate contained within a contract survives the termination or repudiation of the contract as a whole. The arbitration agreement within a written contract is separable from the entire contract. After finding that the arbitration provision survived, the Court then examined the scope of the arbitration provision, focusing on the factual allegations in the complaint, rather than the legal causes of action asserted. Determining the scope of the arbitration agreement is a question of law for the court. Here, the arbitration provision applied to "all controversies" with the Court analyzing the use of the conjunctive "or" in the arbitration agreement.

H/T to Ronnie Hornberger for informing us of this opinion.

Fifth Circuit: Arbitration panel's interpretation holds "however good, bad, or ugly"

In BNSF Railway Co. v. Alstom Transportation, Inc., the Fifth Circuit Court of Appeals vacated the district court's order which had vacated an arbitration panel's award. The Fifth Circuit held that BNSF failed to carry its burden to show that the arbitration panel was not "even arguably interpreting" a maintenance agreement with Alstom, holding that the arbitration's panel's construction of the agreement holds "however good, bad, or ugly."

H/T to Ronnie Hornberger for alerting us to this decision.

 

California: Employee's electronic signature may not be an "act" of the employee; arbitration agreement not enforced

Gary Gansle and Nisha Patel, attorneys at Patton Boggs, recently summarized a decision from the California Court of Appeal, holding that an employee's electronic signature to an arbitration agreement may not have been sufficient evidence that the signature was the act of the employee. The court then refused to enforce the arbitration agreement. The California's court's decision is here. The decision is worth reading because it discusses how the company should have authenticated the employee's electronic signature, with the court finding that the company's business manager did not explain how the employee's electronic signature could only be placed on the document by the employee.

How to Win a China Arbitration

Dan Harris, an attorney at Harris Moure, recently published an article titled "How to Win a China Arbitration." Harris writes that "Chinese companies are increasingly requiring commercial contracts with American companies" to have disputes resolved by arbitration in China. Harris' 5 tips on how to prepare and win an arbitration in China are here.

Baseball arbitration

Experienced arbitrators and mediators know about "baseball arbitration." Now is the season. You can find a list of the 175 players who filed for arbitration courtesy of the New York Times. The Times also reports that 95 players already settled, with David Price of the Detroit Tigers agreeing to a one-year, $19.75 million deal last Friday. Those cases that don't settle will be resolved by a three-person panel in February. Of the 146 players who filed for arbitration last year, only 3 needed decisions from arbitrators.

Looking for Mediator Horror Stories

Professor Art Hinshaw at the Sandra Day O'Connor College of Law at Arizona State University is seeking mediator horror stories to share with a broader audience. If you know of a mediator horror story, and can document it in some way, please email the story to art.hinshaw@asu.edu.

Blog: US Supreme Court Asked to Review Case Where Mediator Conflict Alleged to Exist

Hat tip to Disputing Blog.  According to Karl Bayer, author of the article, the US Supreme Court has been asked to review a federal court's order that did not set aside a jury verdict because a court-appointed mediator failed to disclose a "close personal relationship" with an attorney who represented several of the defendants. The Court of Appeals decision is here.

 

Blog: How to Find a Good Divorce Mediator

Michelle Rozen provides five "rules of thumb" for a good divorce mediator. Her article is located at the Huffington Post.

Southern District of Texas: Arbitration Clause Does Not Allow Party to Seek Equitable Remedies in Court

In DXP Enterprises, Inc. v. Goulds Pumps, Inc., filed in the United States District Court, Southern District of Texas, Houston Division, Judge Rosenthal was faced with the question of whether the court could dismiss a claim for permanent injunction in favor of arbitration. The parties, an industrial equipment dealer and a manufacturer of pumps, parts, and accessories agreed to an arbitration clause as part of a distributor agreement. The arbitration agreement allowed either party to seek equitable relief in a court of competent jurisdiction. The court holds that the claim for injunctive relief must be submitted to arbitration because, otherwise, the parties would litigate claims in court that they agreed would be determined in arbitration. Link here.

Rule Revisions From 5 Top Global Arbitral Institutions

"Arbitration is an increasingly popular choice for commercial dispute resolution within the international business community" write Kiera Gans and Amy Billing with Corporate Counsel. Gans and Billing note that, while arbitration is popular, it is receiving some criticism that it's not meeting is goal of an expeditious and cost-effective technique. Arbitral institutions, in response to the criticism, have changed some of their rules as outlined in Corporate Counsel's article . Gans and Billing also provide an extraordinarily useful chart highlighting some of the most recent rules changes from five international arbitration institutions.
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