Recent Developments in Arbitration

Date & Time: Saturday, November 12, 2022, 9am-4pm

 

Location: Greenberg Lounge, Vanderbilt Hall, 40 Washington Square South, NY, NY 10011

Event Description:

Parties are increasingly resolving their disputes via alternative dispute resolution, as opposed to jury or bench trials.  The increased reliance on ADR, and especially arbitration, to take a leading role in providing civil justice has led to numerous important questions proliferating throughout our courts.

The Center on Civil Justice at NYU School of Law is partnering with the Center for Transnational Litigation, Arbitration, and Commercial Law at NYU School of Law and the Center for International Commercial & Investment Arbitration at Columbia Law School to present this one-day conference, which will examine some of the key, cutting-edge issues in arbitration.

Timed Agenda:

8:30am-9:00am: Breakfast

9:00am-9:05am: Welcome Address by Beverly Martin

9:05am-10:05am: Panel One: Gateway Issues

Description: Courts decide arbitrability (or gateway) issues, unless they don’t. Arbitration, designed to avoid litigation, too often encounters litigation costs and delays not only in determining arbitrability but also in determining who decides arbitrability. 

If parties clearly and unmistakably delegate gateway issues to an arbitral tribunal, the court cannot entertain them.  However, if an agreement incorporates institutional rules which grant authority to tribunals through a competence-competence provision to determine their own jurisdiction, there is an open question as to whether that produces a delegation and thus disempowers courts to determine the gateway matter of arbitrability.  While the great majority of federal Courts of Appeal have answered that question in the affirmative, state courts (even state courts in a single state) are divided.  This panel will unpack productive ways to analyze who decides arbitrability, what factors are most critical, and what judges need from lawyers to make accurate and efficient decisions.  

Moderator: Hon. Lee Rosenthal (S.D. Tex)

Paper presented by: George Bermann (Columbia)

Panelists: Benno Kimmelman (Kimmelman Arbitration), Carolyn Lamm (White & Case)

10:10am-11:10am: Panel Two: Due Process in Arbitration

Description: Though arbitral tribunals must observe due process requirements, the Supreme Court has not had occasion to clearly articulate what those requirements are in the arbitration context.  There are some statutory safeguards, such as the US Arbitration Act, which allows vacation of an award where, for example, there was "evident partiality" in the arbitrators and, though the FAA does not specifically identify denial of the right to be heard as a ground for vacatur, there can be no question that an award may be vacated on that ground.  Among the questions is whether and, if so how, due process standards in arbitration differ from those generally applicable in U.S. law.   

Moderator: Sam Issacharoff (NYU)

Paper presented by: Roger Alford (Notre Dame)

Panelists: Frances Bivens (Davis Polk), Kathleen Smalley

11:15am-12:15pm: Panel Three: International Arbitration from a US Law Perspective

Description: Although two important comprehensive conventions on international commercial arbitration -- the New York Convention and the Panama Convention -- are in force in more than 150 countries, including the United States, national law continues to play a significant role in the interpretation of these conventions. And national law in other areas may affect the arbitration process. This panel will cover a set of issues in international commercial arbitration where U.S. solutions often invite debate. They include jurisdiction and forum non conveniens in connection with proceedings to enforce an award, the criteria for enforcing an annulled award, and whether § 1782 providing for judicial assistance, including discovery, extends to international commercial arbitration. 

Moderator: Franco Ferrari (NYU)

Paper presented by: John Fellas (NYU)

Panelists: Andreas Frischknecht (Chaffetz Lindsey LLP), Linda Silberman (NYU)

12:15pm-1:45pm: Lunch

1:45-2:45pm: Panel Four: Arbitration in Employment/Consumer Contracts

Description: When dealing with consumers or employees, businesses have come to rely on contractual arbitration clauses that bar class actions and require disputes to be resolved individually.  Recently, however, plaintiff-side lawyers have tried a novel response to turn the tables:  the mass filing of individual arbitration demands against a single defendant.  Companies such as Uber, Lyft, DoorDash, and Chipotle Mexican Grill have been targeted in mass-filed arbitration proceedings. 

We will discuss the phenomenon of mass-filed arbitration [and consider the implications for consumer and employment law].  Will plaintiffs’ mass arbitration strategy succeed?  Can businesses alter their arbitration clauses in response to quash the strategy?  Will mass arbitration mark the end of an era in the use of pre-dispute arbitration clauses in consumer and employment agreements?

Moderator: Cynthia Estlund (NYU)

Paper presented by: Maria Glover (Georgetown)

Panelists: Travis Lenkner, Judith Resnik (Yale)

2:50pm-3:50pm: Panel Five: Third-Party Arbitration Funding

Description: The rise of third-party funding in the US and abroad has changed the landscape of both litigation and arbitration, but it is having a particularly profound impact on international arbitration.  Among other issues, the panel will discuss the extent to which rules of legal ethics and professional responsibility apply to funders of international arbitration.

Moderator: Maya Steinitz (Iowa)

Paper presented by: Victoria Sahani (Boston University)

Panelists: Anthony Sebok (Cardozo), Mohamed Sweify (Fordham)

3:55pm-4:00pm: Concluding Remarks by Beverly Martin

 

This event has been approved for 6 (six) New York State CLE credits in the category of Areas of Professional Practice. The credit is both transitional and non-transitional; it is appropriate for both experienced and newly admitted attorneys.
 
Out-of-state CLE: NYU School of Law is an accredited provider of CLE in New York State. If you are seeking CLE credit for a different state, we recommend you consult with your state’s CLE Board to ascertain regulations on reciprocity.

Access the CLE materials.