Compelling or Resisting Arbitration - Chapter 5 - Securities Arbitration: Practice and Forms - Third Edition
Originally from Securities Arbitration: Practice and Forms - Third Edition
§ 5.01 Compelling and Resisting Arbitration
 General Considerations
 Sources of Law
§ 5.02 Substantive and Procedural Law Governing Arbitrability
 The Choice-of-Law Issues
 The Federal Arbitration Act
 State Arbitration Acts
[a] The Revised Uniform Arbitration Act
[b] New York
§ 5.03 Federal Arbitration Act
 Preemption of State Laws Denying Enforceability to Arbitration Agreements
 Preservation of State Rules of Decision for Revocability of Contracts Generally
 Volt, Mastrobuono, Allied-Bruce, and the Parties’ Intent: Choice of Federal or State Law
 The Issue of Whether Sections 3 and 4 Preempt State Law or Apply to State Court Proceedings
§ 5.04 Procedure to Compel Arbitration
 Federal Court
[a] By Petition
[b] By Motion
[c] Provisional Remedies
 Burdens of Pleading and Proof on Issues for the Court
 Revised Uniform Arbitration Act and State Statutes
§ 5.05 Jurisdictional Issues in Obtaining an Order to Compel Arbitration
 Federal Court
 Enforceability of Arbitration Agreements in Bankruptcy and Receiverships
[a] Bankruptcy Proceedings
 State Court
§ 5.06 Elements of Petitioner’s Case
 Issue: Is There a Written Agreement to Arbitrate Covering this Dispute?
[a] Contract Formation Issues
[i] Unsigned or Forged Arbitration Agreements
[ii] Agreements Signed by a Signatory Lacking the Requisite Authority
[iii] Non-signatories to the Arbitration Agreement
[b] Agreement by Application of FINRA Rule 3110(f)
[c] Scope of the Agreement
[d] Agreements to Arbitrate Pursuant to Form U4.
[e] SEC Rule 15c2-2
[f] Pre-Contract Disputes
[g] Application to Member Firm-Employee Disputes
[h] Application to Statutory, Tort, and Breach of Fiduciary Duty Claims
[i] The “Amex Window”
 Issue: What Constitutes “Failure, Neglect, or Refusal” to Arbitrate
§ 5.07 Elements of Respondent’s Case
 Issue: Is the Arbitration Agreement Revocable as a Matter of Law or Equity?
[a] Fraud in the Inducement of the Contract as a Whole
[b] Representation that the Arbitration Agreement Is Mandatory
[c] Failure To Read or Be Aware of the Arbitration Agreement
[d] Fiduciary Duty of Broker to Customer
[e] The Permeation Doctrine
[f] Arbitration Agreements as Unconscionable Contracts of Adhesion
 Issue: Is the Right to Arbitrate Barred by the Applicable Statute of Limitations?
 Issue: Is the Party Seeking Arbitration Itself in Default?
 Issue: Has the Petitioner Waived Its Right to Arbitrate?
 Issue: Class Claims
§ 5.08 Is the Dispute Rendered Non-Arbitrable for Public Policy Reasons?
§ 5.09 Stay of Litigation Under Section 3 Where Civil Action Is Already Pending in State or Federal Court
§ 5.10 Interaction of Sections 3 and 4
§ 5.11 When a Lawsuit Presents Arbitrable and Non-Arbitrable Claims; The Intertwining Doctrine
 Current Law
 Stays of Litigation
 Multiple Parties
§ 5.12 Sanctions Against Losing Party on Motion to Compel Arbitration or Stay Judicial Proceeding
 What Type of Conduct Is Sanctionable?
 When Will Attorney Fees Be Awarded as Sanctions?
§ 5.13 Appealability of Grant or Denial of Order Compelling Arbitration
§ 5.14 Discovery in Aid of Proceeding to Compel Arbitration
§ 5.15 Provisional Judicial Relief Pending and in Aid of Arbitration
 Tactics for Resisting Provisional Relief Pending Arbitration
 Injunctions Against Arbitration Proceedings