ADR Tips Dec, 2010 - National Contract Management Association

							Selection of recent ADR cases/articles, etc. from the net include…

         Submission Agreement determines the arbitrator’s authority!
         “Manifest Disregard of the Law” not the standard of review in arbitration cases?
         Are corporate representatives required to be present in arbitration and be
          independent?
         Waiver of right to arbitration
         Scope of arbitration clause covers bad faith, etc. claims
         Enforcement of foreign arbitration awards in Saudi Arabia
         New arbitral evidentiary rules issued by International Bar Assn.
         Passing of Betty Murphy
         Tip-of-the-Month!
         Speaking engagements
         And more…!


(If there is a submission agreement for the arbitrators, one cannot later deny those issues
are properly before the arbitral panel—ed)

United States Tenth Circuit, 12/10/2010
Burlington Northern & Santa Fe Rwy. Co. v. Pub. Serv. Co. of Okla., No. 09-5133
In an appeal from the district court's order confirming an arbitration board's decision
regarding a rail pricing dispute, the order is affirmed where the district court did not err in
confirming an arbitration board's decision despite appellant railroad's claims that the
board misconstrued the parties' agreement and exceeded its authority by deciding a non-
arbitrable issue. Case is available at Burlington

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(Manifest Disregard of the law not the standard for review of arbitral awards in the 9th
Circuit? From the KarlBayer blog at KarlBayer—ed)
Supreme Court Denies Cert in Manifest Disregard Case
“On Monday, the U.S. Supreme Court denied certiorari in Certain Underwriters at
Lloyd’s, London v. Lagstein, 10-534. The case sought to address whether a ‘manifest
disregard of the law’ standard of review for arbitration awards remains after the Court’s
decision in Hall Street Associates, L.L.C v. Mattell, Inc., 552 U.S. 576 (2008).

“In the case, Lagstein, a medical doctor, filed a claim for disability benefits under a
policy he purchased from Certain Underwriters at Lloyd’s, London (Lloyd’s). After two
years without payment on his claim, Lagstein filed a lawsuit in federal court. A district
court stayed the case and the parties entered into binding arbitration pursuant to the terms
of the disability policy. A three-member arbitration panel awarded Lagstein ‘full policy
benefits, emotional distress damages, and punitive damages, all of which totaled more
than six million dollars.’
 Items summarized in these ADR Tips are collected/compiled from various Internet sources—except as noted—and are for
general informational/discussion/educational purposes only and should not be relied upon in the course of representation or
                  in the forming of decisions in legal matters—independent counsel should be obtained.
“The district court refused to confirm the arbitral award, however, and vacated it on the
grounds the award was excessive and in manifest disregard of the law. Additionally, the
district court vacated the punitive damages award because the arbitral ‘panel lacked
jurisdiction to enter it after the panel had entered its compensatory award.’ Lagstein
appealed the district court’s vacatur of the arbitral award. The Ninth Circuit Court of
Appeals reversed the district court’s vacatur and remanded the case….”



(Must an arbitrator “ensure” that a corporate representative in an arbitration be present
and be independent? Here the purported representative was also a respondent for most of
the arbitration and the arbitrator excluded others from the proceedings.—ed)

California Court of Appeal, 12/07/2010

“In proceedings arising from a breach of contract suit involving an agreement to lease an
assembly hall for a catering event and plaintiff's claim that defendant knew about the
city's restrictive ordinances precluding the use of the hall for catered events, trial court's
confirmation of an arbitrator's award of over $1.2 million in favor of plaintiff is reversed
and vacated as the arbitrator's conduct deprived defendant of a fair hearing because the
arbitrator exceeded his powers by limiting defendant's representation at the arbitration to
an individual who had been sued personally, was not defendant's choice of representative,
was not involved in significant aspects of the transaction and was dismissed from the
action at the conclusion of the hearing.”
Case is available at Hoso Foods



Substantial evidence supported trial court's determination that plaintiff waived her
contractual right to arbitrate a medical malpractice dispute where plaintiff did nothing to
bring about arbitration for some 11 months until a few weeks before the scheduled trial
date and where defendant asserted he was prejudiced since he would have designated
different experts for an arbitral forum.
   Burton v. Cruise - filed December 8, 2010, Fourth District, Div. Three
   Cite as 2010 S.O.S. 6777 Case is available at Burton

___________________________________________________________________

(And, similarly…-ed)
Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., No.
10-889
In plaintiffs' appeal from the denial of their motion to compel arbitration, the order is
affirmed where, assuming for the sake of argument that plaintiffs possessed a right to
arbitration, plaintiffs waived that right by expressing the intent to resolve the dispute
through litigation. Case is available at Louisiana

 Items summarized in these ADR Tips are collected/compiled from various Internet sources—except as noted—and are for          2
general informational/discussion/educational purposes only and should not be relied upon in the course of representation or
                  in the forming of decisions in legal matters—independent counsel should be obtained.
(And the scope of the arbitration agreement covered claims for bad faith, etc. where it
provided, “In relevant part, the arbitration clauses included in the promotional
agreements stated that ‘[a]ny controversy or claim arising out of or relating to this
Agreement or the breach thereof shall be finally settled by arbitration in Louisville,
Kentucky administered by the American Arbitration Association.’” –ed)

“In plaintiff's suit against a marketer and distributor of liquor for unlawful termination of
its sales representation contract and for breach of contract and breach of the implied
covenant of good faith and fair dealing pursuant to the Puerto Rico Sales Representative
Act, commonly known as Law 21, district court's judgment in favor of the defendant is
affirmed where: 1) the district court properly dismissed plaintiff's Law 21 claim for
failure to state a claim as the well-pleaded facts in plaintiff's complaint do not support the
conclusion that it procured and closed sales on defendant's behalf; 2) the district court
properly referred the breach of contract claim to arbitration as the arbitration clauses can
be reasonably interpreted to cover plaintiff's claim that defendant breached the
commercial relationship between the parties in bad faith; and 3) district court's attorneys'
fees award to defendant withstands plain error review.”

IOM Corp. v. Brown Forman Corp., No. 09-1672, United States First Circuit, 12/02/2010
Case is available at IOM

__________________________________________________________________


The law firm of Squire and Sanders has posted an article on Enforcing Foreign Arbitral
Awards in Saudi Arabia at Saudi Arabia

And they have posted an excellent summary of the new International Bar Association
evidentiary rules in arbitrations at IBA

________________________________________________________________

The inaugural issue of the ABA International Law Section “International Dispute
Resolution News,” is on-line at ABA

____________________________________________________________________

The International Association for Contract & Commercial Management (IACCM) is
undertaking its 10th annual survey/study of “The Most Negotiated Terms and
Conditions.”

Betty Murphy was the first female chair of the NLRB and a partner in the law firm of
Baker & Hostetler from 1980 to her death in October 2010. I knew Betty from her
outstanding leadership in the ABA ADR activities. Further info is available at Betty
Murphy
 Items summarized in these ADR Tips are collected/compiled from various Internet sources—except as noted—and are for          3
general informational/discussion/educational purposes only and should not be relied upon in the course of representation or
                  in the forming of decisions in legal matters—independent counsel should be obtained.
Tip-of-the-Month!

Arbitral Motions for Summary Judgments…

While generally acknowledged by the courts that arbitrators have the power to render
same, to what degree is discovery an issue? If discovery is restricted by the arbitration
clause or by the arbitrator, can the arbitrator rule on such a motion? Must there be
“unlimited” discovery for same? What is the cost and time impact by having “expanded”
discovery (in order to have a basis for summary judgment motion)?

How would you proceed in the drafting of an arbitration clause in this narrow aspect for
discovery in view of a potential motion for summary judgment…or defer to the arbitral
rules/arbitrator…and the risk is…?
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Future Speaking Topics Include—

 Jacksonville, Florida   NCMA       Chapter,  National    Education                                            Seminar,
  "Risk Management for Complex U.S. Government Contracts and Projects."

 Orange County, California NCMA Chapter, “Is the FAR Out of Control?”

 Huntsville, Alabama     NCMA       Chapter,  National    Education                                            Seminar,
  "Risk Management for Complex U.S. Government Contracts and Projects."


                    Information on speaking engagements in connection with various aspects of
                  Alternative Dispute Resolution (ADR) and basic/advanced negotiation techniques
                                                — seminars/workshops—
                        may be arranged by sending a message to ADROffice@Rumbaugh.net

_____________________________________________________________

Recent Publications Include—
   “Winning US Federal Government Contracts,” Gregory A. Garrett, principal author.
    The book that provides the most current and highly practical guide on the topic!
    (Reviewer)

    “Conflict Resolution Techniques...The Answer to Legislative Impasses?"
     NCMA Contract Management magazine, July 2009. An innovative approach for the
     timely resolution of budget, tax, etc. issues where there is a super-majority voting
     requirement imposed on state governments.
 Items summarized in these ADR Tips are collected/compiled from various Internet sources—except as noted—and are for        4
general informational/discussion/educational purposes only and should not be relied upon in the course of representation or
                  in the forming of decisions in legal matters—independent counsel should be obtained.