In the recent series of articles we have been looking at what I call commercial arbitration “potholes.” These are issues that come up during arbitration infrequently, but can be tricky and distract us from the merits when they do. If we see them coming, we can usually find a way to work around them and keep things … Continue reading Arbitration Potholes: One Party Won’t Provide Discovery
Arbitration has been in the news a fair amount lately. The Supreme Court has been quite friendly to arbitration, deflecting attacks against arbitration clauses — often characterized by detractors as “forced arbitration” —in consumer setting. For example, in AT&T Mobility LLC v. Conception, 563 U.S. 333 (2011), the Supreme Court made it clear that the … Continue reading The Arbitration Debate: Does It Affect Commercial Arbitration
Arbitration has replaced litigation for many disputes. That isn’t likely to change as litigation costs go up and arbitrators continually work to make arbitrations more efficient and effective. So, if you are involved in commercial litigation, there is a good chance you will be more and more involved in arbitration of disputes. Arbitration looks quite … Continue reading Commercial Arbitration Potholes: Cross-examination
Not long ago, I was on a CLE panel addressing innovations in arbitration. We discussed a number of innovative techniques in arbitration, including “document only winnowing,” “separate common ground,” self-executing concessions, “hot-tubbing” of experts, and other exotic sounding things, many of which provide the promise in the right arbitration to save time and get … Continue reading Efficient Commercial Arbitration: Consider the Form of the Award
In a recent post on how to make arbitration more efficient, I suggested that avoiding administered arbitration was generally not a good way to go. Included among the reason not to skip administration were: (1) AAA provides access to experienced, well-qualified arbitrators and a well-defined process for selecting them, (2) someone needs to determine challenges … Continue reading Efficient Commercial Arbitration: À La Carte Services
We have been addressing some of the tricky issues that can come up in commercial arbitration — which I’ve been calling “potholes” — and how to address them. This time, let’s take up damages. The situation Consider this situation. You are the arbitrator. The Claimant is seeking royalty payments under a license agreement on a … Continue reading Commercial Arbitration: Avoiding Potholes on Damages
We continue to address things that rarely come up in commercial arbitration, but are tricky if they do. Last week we considered the case of the locally unlicensed lawyer. That is, a lawyer who represents a client in an arbitration taking place in a jurisdiction where the lawyer is not licensed. The approach taken by … Continue reading Commercial Arbitration Potholes: The Disbarred Lawyer
With this post, we are going to move from efficiency in commercial arbitration to tricky issues that can come up. Let’s start with one that does not often come up, but that you will want to be ready for: a lawyer who is not licensed in the state where the arbitration is held. In … Continue reading Commercial Arbitration Potholes: The Locally Unlicensed Lawyer
One expense in arbitration lawyers often seem to immediately hit on when thinking of ways to make arbitration less expensive is administration fees. Why pay for an arbitral forum like AAA, ICDR, or JAMS to administer the arbitration? After all, filing fees are still pretty cheap in court. Administration fees are not that cheap. This … Continue reading Efficient Arbitration Part IX: Should You Skip Administration?
We have been considering different ways to reduce the cost of arbitration. Let’s now consider the cost of a transcript. No rule requires a stenographer at an arbitration hearing, although that is typically allowed. See, e.g. AAA Commercial Rule 28. But should you spend the money on a transcript for your next arbitration? Like everything … Continue reading Efficient Arbitration Part VII: Do You Need a Transcript?