Category Archives: Commercial Arbitration

Going International? Consider Arbitration

Your client, headquartered in the United States, asks you to prepare an agreement. Let’s say it’s a supply agreement.  The supplier is from a foreign country.  Let’s say China.  You are fairly sure that the supplier, eager to make the ongoing sale of its products, will agree to a United States choice of law and … Continue reading Going International? Consider Arbitration

Arbitration Clauses: Watch State Law

 In past articles, we have discussed how many courts once were hostile to arbitration. This led Congress to pass the Federal Arbitration Act (“FAA”), 9 U.S.C.§1 et seq., in 1925.  That Act applies in both state and federal courts and preempts any inconsistent state law in cases that involve interstate commerce.  The FAA provides, simply, … Continue reading Arbitration Clauses: Watch State Law

Arbitration Potholes: One Party Won’t Provide Discovery

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

The Arbitration Debate: Does It Affect Commercial Arbitration

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

Commercial Arbitration Potholes: Cross-examination

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

Efficient Commercial Arbitration: Consider the Form of the Award

  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

Efficient Commercial Arbitration: À La Carte Services

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

Commercial Arbitration: Avoiding Potholes on Damages

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