Arbitral Jurisdiction - Part 1 - Chapter 2 - AAA Yearbook on Arbitration and the Law - 24th Edition

STEPHEN K. HUBER is Professor Emeritus at the University of Houston Law Center, and has served as a visiting professor at the University of Texas, Rice University (Political Science), Pepperdine Law School (Dispute Resolution Program), and the University of East Africa (Dar es Salaam, Tanzania). Mr. Huber is a member of the State Bar of Texas, and the editor of Alternative Resolutions, the quarterly journal of the Dispute Resolution Section. He is the author of numerous publications relating to arbitration.

BEN H. SHEPPARD, JR. is a Distinguished Lecturer and Director of the A.A. White Dispute Resolution Center at the University of Houston Law Center. From 1969 through 2005 he practiced at Vinson & Elkins L.L.P. where he was a Partner and Co-Chair of the firm's international dispute resolution practice. He was chair of AAA/ICDR task force that promulgated the 2006 amendment to the ICDR International Arbitration Rules that established a pre-arbitral emergency arbitrator procedure. He was the author of the report and recommendation to the ABA House of Delegates in support of the 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. He chaired one of the two working groups that promulgated the CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration. He is a past chair of the Disputes Division of the ABA Section of International Law and for five years served as editor-in-chief of The International Arbitration News. He is a member of the American Law Institute and a Fellow of the College of Commercial Arbitrators.

PDF933.5 KB

$40.00

Description:

Originally from: AAA Yearbook on Arbitration and the Law - 24th Edition

CHAPTER 2
ARBITRAL JURISDICTION

2.01 Scope of the Arbitration Agreement
Cape Flattery Ltd. v. Titan Maritime, LLC, 647 F.3d 914 (9th Cir. 2011)

1. Courts should apply federal arbitrability law absent “clear and unmistakable evidence” that the parties agreed to apply non-federal arbitrability law.
2. Arbitration agreements with the phrase “arising under” are interpreted narrowly.
3. Tort claim did not relate to interpretation and performance of contract and was not arbitrable under narrow arbitration clause.

Cape Flattery, boat owner, sued Titan Maritime, a salvage company, in federal district court seeking indemnity or contribution for damages to coral reef caused by salvage of the boat. The parties had an agreement that Titan Maritime would salvage the boat and the agreement included an arbitration clause stating that any dispute arising under the agreement would be settled by arbitration in England and English law would apply. Titan sought to compel arbitration based on the arbitration clause in the agreement. The district court concluded that federal arbitrability law applied to determine arbitrability and that under federal arbitrability law, the dispute did not arise under the agreement. Titan appealed.

The court of appeals determined that the first issue was what law should apply to determine the arbitrability of the dispute. The court first concluded that parties do have the power to agree to apply non-federal arbitrability law. In determining whether the parties had agreed to apply non-federal arbitrability law, the court relied on First Options of Chicago, Inc. v. Kaplan to conclude that courts should apply federal arbitrability law absent “clear and unmistakable evidence” that the parties agreed to apply non-federal arbitrability law. 514 U.S. 944, 115.

Table of Contents:

Chapter 2
Arbitral Jurisdiction

2.01 Scope of the Arbitration Agreement
Cape Flattery Ltd. v. Titan Maritime, LLC, 647 F. 3d 914 (9th Cir. 2011)
Idea Nuova, Inc. v. GM Licensing Group, Inc., 617 F.3d 177 (2d Cir. 2010)
Harrell’s LLC v. Agrium Advanced (U.S.) Technologies, 795 F.Supp.2d 1321 (M.D. Fla. 2011)
Price v. Cushman & Wakefield, Inc., 808 F.Supp. 2d 670 (S.D.N.Y. 2011)
Westenfelder v. Novo Ventures (US), Inc., 797 F.Supp.2d 188 (D. Mass. 2011)
Olshan Found. Repair Co. v. Schultz, 64 So. 3d 598 (Ala. 2010)
Feldman v. Davis, 53 So. 3d 1132 (Fla. Ct. App. 2011)

2.02 Who Decides Arbitrability: Court or Arbitrator?
Granite Rock Co. v. Int’l Bhd of Teamsters, 130 S. Ct. 2847 (2010)
Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2722 (2010)
Republic of Ecuador v. Chevron Corp., 638 F.3d 384 (2d Cir. 2011)
Bechtel Do Brasil Construções Ltda. v. Ueg Araucária Tda., 638 F.3d 50 (2nd Cir. 2011)
Momot v. Mastro, 652 F.3d 982 (9th Cir. 2011)
Dealer Computer Services, Inc. v. Old Colony, 588 F. 3d 884 (5th Cir. 2009)
Environmental Barrier Co. v. Slurry Sys., Inc., 540 F.3d 598 (7th Cir. 2008)
Fallo v. High-Tech Institute, 559 F.3d 874 (8th Cir. 2009)
Contech Construction Products, Inc. v. Hierli, 764 F.Supp.2d 96 (D.D.C. 2011)

2.03 Severability/Separability of the Arbitration Agreement
Brubaker v. Barrett, 801 F.Supp.2d 743 (E.D. Tenn. 2011)
In re Morgan Stanley & Co., 203 S.W.3d 182 (Tex. 2009)
Johnson v. Jefferson Cnty. Racing Assn., 1 So. 3d 960 (Ala. 2008)
Thompson v. Lithia Chrysler Jeep Dodge of Great Falls, A.B.N., 185 P.3d 332 (Mont. 2008)

2.04 Non-Signatories: Arbitral Jurisdiction over Parties Who Have Not Signed the Arbitration Agreement
Ragone v. Atlantic Video at Manhattan Center., 595 F.3d 115 (2d Cir. 2010)
Covington v. Aban Offshore Ltd., 650 F.3d 556 (5th Cir. 2011)
DK Joint Venture 1 v. Weyand, 649 F.3d 310 (5th Cir. 2011)
Simmons Foods, Inc. v. H. Mahmood J. Al-Bunnia & Sons Co., 634 F.3d 466 (8th Cir. 2011) 104
Lawson v. Life of the South Ins. Co., 648 F.3d 116 (11th Cir. 2011)
In re Rubiola, 334 S.W.3d 220 (Tex. 2011) 108
Volkswagen Group of Am., Inc. v. Williams, 64 So. 3d 1062 (Ala. Civ. App. 2010)
Schmitz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 939 N.E.2d 40 (Ill. App. Ct. 5th 2010)
Mims v. Global Credit and Collection Corporation, 803 F.Supp.2d 1349 (S.D. Fla. 2011)
Carr v. Main Carr Development, LLC., 337 S.W. 3d 489 (Tex.App.-Dallas 2011)
Bilyeu v. Johanson Berenson LLP, 809 F. Supp. 2d 547 (W.D. La. 2011)
Butto v. Collecto, Inc., 802 F. Supp. 2d 443 (E.D.N.Y. 2011)
Life Technologies Corp. v. AB Sciex Pte. Ltd., 803 F. Supp. 2d 270 (S.D.N.Y. 2011)
Moro Aircraft Leasing, Inc. v. Keith, 789 F. Supp. 2d 841 (N.D. Ohio 2011)
QPro Inc. v. RTD Quality Servs. USA Inc., 761 F. Supp. 2d 492 (S.D. Tex. 2011)

2.05 Non-Signatories: Application of the 9 U.S.C. Section 3 Mandatory Stay to Non-Signatories
Arthur Andersen L.L.P. v. Carlisle, 129 S. Ct. 1896 (2009)
2.06 Class Arbitration: Developing Case Law, Including the Enforceability of Clauses Prohibiting Class Arbitration
AT&T Mobility LLC v. Concepcion, 131 S.Ct 1740 (2011)
Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S.Ct. 1758 (2010)
Litman v. Cellco Partnership, 381 Fed. Appx. 140 (3d Cir. 2011)
Cruz v. Cingular Wireless, LLC, 648 F.3d 1205 (11th Cir. 2011)
Fensterstock v. Education Finance Partners, 611 F.3d 124 (2d Cir. 2010)
Greenwood v. CompuCredit Corp., 615 F.3d 1204 (9th Cir. 2010)
In re Checking Account Overdraft Litigation, 813 F.Supp.2d 1365 (S.D. Fla. 2011)
In re American Express Merchants’ Litigation, 554 F. 3d 300 (2d Cir. 2009)

2.07 Appeal of Trial Court Orders Requiring or Denying Arbitration
Dialysis Access Center, LLC v. RMS Lifeline, Inc., 638 F.3d 367 (1st Cir. 2011)
Turi v. Main Street Adoption Services, LLP, 633 F. 3d 296 (6th Cir. 2011)
Braintree Lab, Inc. v. Citigroup Global Markets Inc., 622 F.3d 36 (1st Cir. 2010)
University of Illinois v. Organon Teknika Corp., 614 F.3d 372 (7th Cir. 2010)
North Fork Collieries, LLC v. Hall, 322 S.W.3d 98 (Ky. 2010)