Chapter One: Introduction - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor in Chief James M. Gaitis is a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar, who, since 1990, has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
A Fellow of the College of Commercial Arbitrators (2004–present) and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators (2003–present), Mr. Gaitis is a frequently invited speaker and lecturer, has testified in district court proceedings as an expert on arbitrator disclosures and ethics, and is the author of numerous articles relating to arbitration law, several of which have been cited repeatedly to the United States Supreme Court, various federal district courts and federal courts of appeal, and various other courts, such as the Supreme Courts of Texas and Puerto Rico. In 2006, 2010, and 2013, he respectively served first as an Editor and then repeatedly as Editor in Chief of the first, second, and third editions of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration. He also is the Editor of, and a contributing author to, The Leading Practitioners’ Guide to International Oil & Gas Arbitration (Juris 2015) and serves on the Board of Editors of the Journal of World Energy Law & Business (OUP/AIPN). He is a graduate of the University of Notre Dame (BA 1976) and the University of Iowa College of Law (JD 1978), where he served as a Note & Comment Editor on The Iowa Law Review.
Editor A. Holt Gwyn is recognized in the United States and Latin America for his arbitration and mediation practice. His ADR practice complements his legal practice, which is concentrated in construction, environmental, and business contracts and disputes. Mr. Gwyn has coauthored several books and is the author of more than two dozen articles on construction and environmental topics and on resolution of disputes by arbitration and mediation.
Mr. Gwyn has served as Chair of the world’s largest organization of construction lawyers, the ABA’s Forum on Construction Law. In 2014, he received the Forum’s highest achievement “Cornerstone” award. He is a Fellow and in 2016–2017 served as President of the American College of Construction Lawyers. He is also a Fellow of the College of Commercial Arbitrators and a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, London, England.
Mr. Gwyn is a founding member of and former Chair of the Section of Construction Law, North Carolina Bar Association. He is a Charter Member of the N.C. Academy of Superior Court Mediators. He has served as arbitrator on many AAA, ICDR, ICC, and CPR administered arbitrations and also serves on the AAA’s Construction Mega Panel and Large, Complex Case Program Panel of Arbitrators and Neutrals; he is included on the CPR International Institute Distinguished Panels of Neutrals, including its Environmental and Construction Panels. For more than a decade, he has been regularly listed in Best Lawyers in America, Super Lawyers (Corporate Counsel Edition), and Who’s Who in American Law.
From 2007 to 2014, Mr. Gwyn was the Editor in Chief of the Journal of the American College of Construction Lawyers, published by Thomson-Reuters-West. From 1996 to 2004, Mr. Gwyn served as a Charter Trustee of North Carolina’s Clean Water Management Trust Fund.
He is a graduate of the University of North Carolina, Chapel Hill (BA 1971) and Wake Forest University School of Law (JD 1976).
Editor Laura A. Kaster comes to her work as a full-time arbitrator and mediator from a background first as a litigation partner at Jenner & Block and then as Chief Litigation Counsel for AT&T, where she also represented AT&T Labs and was responsible for all of AT&T’s arbitrations (including complex insurance matters), IP litigation, and all appeals in complex litigation and employment matters. Her work as a neutral is modeled on her admiration of the work of Judge Frank M. Coffin of the First Circuit Court of Appeals for whom she clerked following law school. From 2015 to 2017, she was the President of the Justice Marie L. Garibaldi ADR Inn of Court, the first ADR Inn in the country. She is also a past Chair of the NJSBA Dispute Resolution Section and a Co-Editor in Chief of the NYSBA’s journal, Dispute Resolution Lawyer. She is the 2014 recipient of the NJSBA’s Boskey Award for the ADR practitioner of the year. She has served as an arbitrator, including as chair, in complex commercial, telecom, biotech, patent and trademark licensing, partnership and development and family business disputes, and in matters involving the sales of businesses and securities claims. Ms. Kaster has served as a mediator in more than 200 matters, including matters involving hundreds of millions of dollars and long-running disputes. She was a founding member of the Executive Committee of the NJ Academy of Arbitrators and Mediators and is on the Roster of the National Academy of Distinguished Neutrals. She is on the Tech List of the Silicon Valley Arbitration and Mediation Center and is an arbitrator for the AAA; for the CPR on its Telecom Panel, E‑Discovery Panel, Technology Panel, New Jersey at Large ADR Panel, and Trademark Panel; and for FINRA. She is a hearing officer for National Arbitration and Mediation (NAM), a member of the Global Panel for the Center on Dispute Resolution (CEDR), and a mediator for the Global Mediation Exchange Center. She is CEDR accredited and an IMI Certified Mediator. She is a master mediator for the AAA. She has spoken and trained widely for the AAA/ICDR conferences, CCA, PLI, ABA Dispute Resolution Section annual meetings, NJSBA, NJAPM, NYSBA, and NJICLE. Ms. Kaster is listed as only one of three New Jersey mediators in Who’s Who Legal: Mediation (2016–2017). She is an Adjunct Professor of ADR at Seton Hall Law School and an organizer of the mediation program and training for the New Jersey Bankruptcy Courts. She mediates for the New Jersey and New York Commercial Courts and is a member of the New Jersey Supreme Court’s Committee on Complementary Dispute Resolution and its Advisory Committee on Mediator Standards. Ms. Kaster has published widely on both arbitration and mediation. She is a coauthor of the forthcoming chapter “Arbitrating Technology Cases: Considerations for Businesspeople and Advocates” in Harrie Samaras (Ed.), ADR Advocacy, Strategies, and Practices for Intellectual Property and Technology Cases (ABA 2017). She graduated from Tufts University with a BA and received her JD magna cum laude from Boston University Law School, where she received the Melville Bigelow award for “the greatest promise as a teacher and scholar of the law.” She is a member of the New York and New Jersey state bars and a proud Fellow of the College of Commercial Arbitrators.
Editor John (Jay) McCauley is an arbitrator, mediator, and arbitration consultant. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the College of Commercial Arbitrators. He is an honors graduate of Harvard Law School and a former partner of a large, international law firm, where he litigated a broad range of matters, including security fraud class actions, corporate governance, insurance and reinsurance coverage, real property, construction, business torts, intellectual property, healthcare, and employment. He has taught arbitration law as an Adjunct Professor in several law schools, including Pepperdine, Loyola, Creighton, and University of Missouri–Kansas City, and has made CLE presentations on ADR topics throughout the world, including, most recently, at the USC/JAMS Advanced Arbitration Institute, and at training programs sponsored by the AAA concentrating on more challenging topics such as arbitrability and jurisdiction, federal preemption, the power to summon nonparties, the preclusive effect of arbitral awards, the role of law in arbitral deliberations, and presentation of damages in the arbitral forum.
Mr. McCauley has been continuously listed for the past nine years as a California Super Lawyer, and for the past eight years, he has been included in Best Lawyers in America in the field of ADR. He has been a commercial arbitrator on the national roster of the AAA since 1998, where he serves on the Large, Complex Case; Commercial; Real Property and Construction; Employment; Healthcare; and Class Action Panels, as well as on the roster of the ICDR. He is also on the roster of neutrals for Judicate West and on the “senior arbitrators” panel for USA&M. In the past decade, he has been appointed to serve as an arbitrator on more than 180 significant matters, including multiple major matters ranging in value from $10 million to more than $100 million.
Contributors:
Carl F. Ingwalson, Jr. , SanDiego, California
June R. Lehrman, Los Angeles, California
Vivien B. Shelanski, New York, New York
Curtis E. von Kann, Washington, DC
Robert W. Wachsmuth, San Antonio, Texas
The origins of arbitration in America date back to the colonial era when individuals involved in certain areas of commerce sought alternatives to judicial processes that were seen to be expensive, slow, and unpredictable in outcome. The arbitrator was usually a nonlawyer experienced in the line of trade in which the dispute arose. Only one kind of “claim” was ever presented: that a party had fallen short of some contractual expectation. Simple procedures were agreed upon by the parties. Stakes were generally modest. Proceedings were informal and short. Judicial involvement was nonexistent: Courts would not compel parties to honor their agreements to arbitrate.
On that simple foundation has been built the present elaborate structure of commercial arbitration in the United States, with its governing statutes and rules, complex disputes, high stakes, and occasional judicial intervention. Arbitration’s subject matter is no longer confined to breaches of commercial contracts but includes torts and breaches of virtually all statutory rights, including statutes governing such public policy issues as antitrust, securities fraud, racketeering, and employment discrimination. Arbitration is now extensively employed in virtually every field of commerce, including financial services, real estate sales and development, construction projects, contracts for goods and services, public works and procurement, oil & gas/energy, health care, intellectual property, insurance and reinsurance, franchising, mergers and acquisitions, entertainment, telecommunications, international business, and investor-state transactions.
Commercial disputes that a few decades ago would have been resolved in protracted court proceedings are increasingly determined by private arbitrators selected and paid by the parties. Legislatures and courts have been supportive of such arbitration, giving arbitrators wide latitude in managing the process and declining to give courts the ability to second-guess arbitral decisions absent extreme aberrations.