PDF of Title Page and T.O.C.

Foreword
William K. Slate II

 

Introduction 
Stephen K. Huber and Ben H. Sheppard, Jr.

PART ONE--CASE DIGESTS

Chapter 1
The Arbitration Agreement

1.01 Contract Formation
1.02 State Contract Law Defenses
1.03 Public Policy Defenses: Unconscionability
1.04 Defective (Unenforceable) Arbitration Agreements
1.05 Waiver of the Right to Arbitrate

Chapter 2
Arbitral Jurisdiction

2.01 Scope of the Arbitration Agreement
2.02 Who Decides Arbitrability: Court of Arbitrator?
2.03 Severability/Separability of the Arbitration Agreement
2.04 Non-Signatories: Arbitral Jurisdiction over Parties Who Have Not Signed the Arbitration Agreement
2.05 Non-Signatories: Application of the 9 U.S.C. Section 3 Mandatory Stay to Non-Signatories
2.06 Class Arbitration: Developing Case Law, Including the Enforceability of Clauses Prohibiting Class Arbitration
2.07 Appeal of Trial Court Orders Requiring or Denying Arbitration

Chapter 3
Interaction of Federal and State Law

3.01 Commerce Clause Preemption of State Law by the FAA
3.02 The Role of State Arbitration Law
3.03 Federal Court Jurisdiction and the FAA
3.04 Choice of Law and Choice of Forum

Chapter 4
The Arbitral Tribunal

4.01 Disqualifying Arbitrators: Evident Partiality and Related Grounds
4.02 Structural Bias: Non-neutral Neutrals
4.03 Failure of Arbitral Selection Provisions

Chapter 5
Preliminary Proceedings

5.01 Interim Relief by the Court
5.02 Arbitral Subpoenas and Pre-hearing Discovery 
5.03 Arbitral Stays of Parallel Litigation and Judicial Stays of Arbitral Proceedings

Chapter 6
The Arbitration Proceeding

6.01 Preclusion: Res Judicata and Collateral Estoppel 
6.02 Remedial Authority of Arbitrators 
6.03 Awards of Costs, Fees, and Interest

Chapter 7
Challenges to the Arbitral Award

7.01 Statutory Deadlines for Submission of Application to Vacate or Modify Award
7.02 Contractual Expansion of Grounds of Judicial Review
7.03 Challenges Based on Evidentiary and Procedural Issues
7.04 Challenges that Arbitrators Exceeded their Authority 
7.05 Manifest Disregard of the Law
7.06 Non-Statutory Grounds for Review: Public Policy

Chapter 8
International Arbitration

8.01 Applicability of the New York Convention
8.02 Enforcement of the Arbitration Agreement
8.03 Waiver of Removal Rights under the New York Convention
8.04 Court Assisted Evidence Gatherings under 28 U.S.C. § 1782
8.05 Injunctions against Arbitration
8.06 Procedural Barriers against Enforcement of Foreign Arbitral Awards
8.07 Enforcement of Foreign Awards Vacated at the Seat of Arbitration

PART TWO--ARTICLES

Chapter 1 
American Arbitration Association 2010 
Sandra K. Partridge

Chapter 2 
ICDR/AAA's System and International Conflict Management Efficiencies
Luis M. Martinez

Chapter 3
"Manifest Disregard" of Law? 
James H. Carter & Florence J. Goal

Chapter 4
Arbitral Cost Allocation Decisions--Should Guidelines Accompany Arbitral Discretion? 
Marc J. Goldstein

Chapter 5
The Revised Uniform Arbitration Act: A Tenth Anniversary Reflection 
Stephen K. Huber

Chapter 6
Arbitrator Disclosure and a Duty to Investigate?
Mark Kantor

Chapter 7
Does A Private International Arbitration Fall Within "Foreign Or International Tribunal" in 28 U.S.C. § 1782? Practice Pointers for Seeking Discovery in Aid of Arbitration after Intel Corp. v. Advanced Micro Devices, Inc.
Dana C. MacGrath and E. Rainbow Willard

Chapter 8
Mandatory Stays under Section 3 of the Federal Arbitration Act After Arthur Andersen v. Carlisle: Did the Supreme Court Announce a Floor or a Ceiling?
Walter R. Mayer and Russell T. Gips

Chapter 9
The Rise and Fall of Class Arbitration
John M. Townsend

 

APPENDICIES ON CD-ROM

Table of Contents of CD Rom to be furnished by AAA/ICDR

 

The AAA is the world's largest provider of alternative dispute resolution services. Since its founding in 1926, the AAA has administered approximately 3.7 million domestic and international disputes. The AAA has signed 70 cooperative agreements with arbitral institutions in 48 countries and has offices throughout the United States, as well as in Singapore, Mexico, and Bahrain.

About the Editors:

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. His practice focused on litigation and arbitration, both as counsel and as arbitrator. He has served in international and domestic arbitrations as sole arbitrator, tribunal chair, party-appointed arbitrator and on tripartite tribunals selected from institutional rosters.

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.

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Contributing Authors:

JAMES H. CARTER is a Partner in the New York office of Dewey & LeBoeuf LLP and Co-chair of its international arbitration practice, in which he is active as counsel and as an arbitrator. He is a graduate of Yale College and Yale Law School, attended Cambridge University as a Fulbright Scholar and served as law clerk to Hon. Robert P. Anderson of the U.S. Court of Appeals for the Second Circuit. Mr. Carter is a former Chairman of the Board of Directors of the American Arbitration Association and is a member of its Nominating and Governance Committee, and during 2004-06 he was President of the American Society of International Law. He is also a former Chair of the American Bar Association Section of International Law and Practice and served as Chair of its Committee on International Commercial Arbitration. Mr. Carter has chaired both the International Affairs Council and the Committee on International Law of the Association of the Bar of the City of New York, as well as the International Law Committee of the New York State Bar Association. He has served as a member of the London Court of International Arbitration and Vice President of its North American Council and is a member of the Court of Arbitration for Sport. He is co-editor of INTERNATIONAL COMMERCIAL ARBITRATION IN NEW YORK (Oxford University Press 2010).

RUSSELL GIPS is an attorney at Vinson & Elkins LLP in the firm's commercial litigation group. He has a general litigation practice with an emphasis on energy litigation, including joint operating agreement disputes, regulatory matters, and business torts. Russell received his J.D., summa cum laude, from the University of Houston Law Center where he was a member of the Order of Coif, Order of the Barons, and the Houston Law Review. He received his undergraduate degree in advertising from the University of Texas at Austin."

MARC J. GOLDSTEIN (www.lexmarc.us) is a New York attorney whose practice includes advocacy before courts and arbitral tribunals, and service as an arbitrator and mediator. He has concentrated on international arbitration for more than two decades. He is the creator and author of the widely-read Arbitration Commentaries (http://arbblog.lexmarc.us), a member of the American Law Institute, and is on the arbitrator and mediator rosters of (among others) the AAA and its International Centre for Dispute Resolution (ICDR). He is a Fellow of the College of Commercial Arbitrators and of the Chartered Institute of Arbitrators.

MARK KANTOR currently serves as an arbitrator and mediator. Until he retired from Milbank, Tweed, Hadley & McCloy, he was a Partner in the Corporate and Project Finance Groups of the Firm. He teaches as an Adjunct Professor at the Georgetown University Law Center. He is also a Senior Research Fellow at the Vale Columbia Center for Sustainable International Investment (a joint undertaking of Columbia Law School and the Earth Institute at Columbia University). Additionally, Mr. Kantor is Editor-in-Chief of the online journal Transnational Dispute Management.

Mr. Kantor is a member of the Board of Directors of the American Arbitration Association, Chair of the DC Bar International Dispute Resolution Committee and a Fellow of The Chartered Institute of Arbitrators. He is listed in Who's Who Commercial Arbitration, Chambers USA (International Arbitration), Guide to the World's Leading Commercial Arbitration Experts and Best Lawyers in America.

Mr. Kantor is also a member of the Editorial Board of Global Arbitration Review, the Board of Editors of the Journal of World Energy Law and Business and the ADR Advisory Board of the International Law Institute. Among other publications, Mr. Kantor is the author of Valuation for Arbitration: Compensation Standards, Valuation Methods and Expert Evidence (Kluwer 2008), named Best Book of 2008 in the OGEMID Awards, and "A Code of Conduct for Party-Appointed Experts in International Arbitration – Can One be Found?' 26 Arbitration International 323 (2010), named Best International Dispute Resolution Article of 2010 in the OGEMID Awards. Additional information at www.mark-kantor.com.

DANA C. MACGRATH is Senior Counsel in the litigation and international arbitration group of Allen & Overy LLP in New York. She represents clients in international commercial arbitrations under various arbitration rules and subject to different substantive and procedural laws. Dana also has served as an arbitrator in ICC arbitrations. Her experience covers industries such as oil and gas, telecommunications, finance and joint ventures. Dana represents parties in litigation regarding the enforceability of arbitration agreements and arbitral awards under the New York Convention, disputes regarding forum selection and choice of law clauses, sovereign immunity and discovery in the international context. Ms. MacGrath is “[p]raised by both clients and peers for ‘her high-quality legal advice and commitment to clients.’” Chambers USA 2010. She teaches a seminar on International Commercial Arbitration at Brooklyn Law School and coaches the Brooklyn Vis Moot team. She received her J.D. from New York University School of Law.

LUIS M. MARTINEZ Vice President of the International Centre for Dispute Resolution, (ICDR) the international division of the American Arbitration Association, (AAA). Mr. Martinez is also the President of the Inter-American Commercial Arbitration Commission, (IACAC).

Luis M. Martinez is the Vice President of the International Centre for Dispute Resolution located in New York. Mr. Martinez serves as an integral part of the ICDR's international strategy team and is responsible for international arbitration and mediation business development for the North-East (from Washington, D.C. to Maine, including New York City) and Central and South America.

Mr. Martinez in his capacity as President of the IACAC is responsible for the oversight of its network of arbitral centers throughout the Americas and as the only institution that is expressly included in the Inter-American Convention on International Commercial Arbitration conducts numerous arbitration and mediation initiatives throughout the hemisphere aimed at developing the ADR culture.

Mr. Martinez joined the AAA in 1996 as the first attorney hired to staff the newly created ICDR and later served as the ICDR's first director. For the last several years Mr. Martinez worked as the Vice President responsible for the ICDR's international administrative services and prior to that he held the position of a staff attorney for the AAA's Office of the General Counsel before assuming his current position.

Luis M. Martinez  received a Bachelor’s Degree from Georgian Court College and a Juris Doctor degree from St. John's University School of Law. He has had several articles published on international arbitration and has appeared as a speaker in numerous programs throughout the world. Mr. Martinez is admitted to practice law in the State of New York and the State of New Jersey. He is fluent in Spanish.

WALTER MAYER is the Associate General Counsel – Litigation at Petrohawk Energy Corporation. He is Co-Chair of the Energy Litigation Committee for the ABA Section of Litigation. Walter acted as Editor-in-Chief of the Energy Litigation Journal for which he was named Outstanding Subcommittee Chair. Mr. Mayer was named a “Texas Rising Star” in civil defense litigation in Texas Monthly. He previously practiced at Vinson & Elkins in Houston specializing in energy litigation and international dispute resolution. He received his J.D. from the University of Virginia.

SANDRA PARTRIDGE is a Vice President at the American Arbitration Association where she speaks and writes for public anrivate sector audiences on a variety of ADR-related topics and assists businesses develop ADR programs.

Ms. Partridge has been a featured speaker on various arbitration and mediation topics at the ABA Arbitrator Training 2010, the ABA Business Law Annual Conference and the Dispute Resolution Section of the American Bar Association.

She received her JD from the Dickinson School of Law at Pennsylvania State University where she studied with Professor Thomas Carbonneau, world-renowned arbitration scholar, and served as co-editor of AAA Handbooks on Arbitration, Mediation, and International Arbitration.

Ms. Partridge is a previous winner of the American Bankruptcy Law Journal Prize. She served as Senior Editor of the Journal of American Arbitration and competed in the Vis International Arbitration Moot. She is a member of the Pennsylvania Bar, New York Bar, and American Bar Association.

JOHN M. TOWNSEND is a Partner in the Washington office of Hughes Hubbard & Reed LLP and chairs that firm's Arbitration and ADR Group. He was the Chairman of the Board of Directors of the American Arbitration Association from 2007 to 2010 and previously chaired the AAA's Executive Committee and Law Committee. Mr. Townsend was named by President Bush to the Panel of Arbitrators of ICSID. He is a Trustee as well as a member of the Arbitration and Competition Law Committees of the U.S. Council for International Business and chairs the U.S. Council's European Privilege Task Force. He was the first Chair of the Mediation Committee of the International Bar Association (2005-2006), and is also a member of the American Law Institute and of the College of Commercial Arbitrators. Mr. Townsend is a graduate of Yale University (B.A., 1968) and Yale Law School (J.D., 1971).

E. RAINBOW WILLARD is in the litigation and international arbitration group of Allen & Overy LLP in New York. Her practice focuses on representation of parties in international commercial arbitrations and in U.S. court proceedings. Rainbow is fluent in Spanish and Kaqchikel Maya and has lived and worked in Guatemala and Mexico. Ms.  Willard obtained her law degree, with high honors, from Emory University School of Law. During law school, she spent a semester studying international and Mexican law at the Universidad Panamericana in Mexico City. Prior to law school, Rainbow received a Master’s in Linguistics from the University of California, Berkeley.

 

"Arbitration has blossomed into a major business and legal industry in the United States and the transnational world. Books describing the law and practice of this ADR field abound. Any current publication has got to offer something new to be successful. The 23rd Edition of Arbitration and the Law does just that! The co-editors have revived the American Arbitration Association’s tradition of publishing an annual survey of important developments in arbitration. In addition to containing well written chapters on all aspects of arbitration law, the book provides readily available, detailed access to current judicial decisions addressing the multitude of complex and thorny issues that may arise during the course of an arbitration proceeding. This latest edition is indeed a valuable resource for busy arbitrators and practitioners alike."
-Gerald Aksen, Arbitrator and Mediator; former General Counsel of the American Arbitration Association.

 

 "The 23rd edition of the AAA's Arbitration & The Law contains not only valuable articles but invaluable summaries of current cases on salient issues of arbitration, indexed issue-by-issue. Its editors are to be congratulated."
-Judge Stephen M. Schwebel, Former President of the International Court of Justice

 

 "This book is a superb overview of recent developments in the United States law on international arbitration addressing the major issues of the day, including, among others, the continued viability of the doctrine of manifest disregard, the rise and fall of class arbitration, and the permissibility of using section 1782 to obtain evidence in aid of arbitration proceedings. Ben Sheppard and Steve Huber are to be commended for putting together such a formidable team of contributors, who are among the leading international arbitration practitioners in the United States. I highly recommend this book."
-John Fellas, Hughes Hubbard & Reed LLP

 

 "The 23rd edition of 'Arbitration and the Law' not only continues a venerable tradition but, in this latest volume, it enriches and increases the value of the series going forward by its inclusion of a compendious section on recent cases that will be of great use both to teachers of arbitration and to practitioners, who will find in the case analyses valuable reference points for understanding the often arcane judicial pronouncements concerning the interaction between courts and arbitration proceedings."
-Lawrence W. Newman, Baker & McKenzie LLP

 

 "Welcome back to Arbitration and the Law, and thanks to the AAA and University of Houston Law Center for reviving this publication. Research has just gotten easier for the arbitration community, particularly with the new organization -- by stage of an arbitration for the case digests."
-Lucy Reed, Partner and Co-Head of the International Arbitration Practice Group, Freshfields Bruckhaus Deringer LLP, Former President of the American Society of International Law

 

 "A most magnificent tool for coming to grips with the complex evolution of American arbitration law."
-Rusty Park, President LCIA; Professor, Boston University

 

 "The AAA deserves kudos for reviving Arbitration and the Law. The 23rd Edition is a most important addition to our classroom courses on the law of arbitration. The case digests are particulalry valuable, up to date teaching resources, as the topics cover the course in full."
-David J Branson, Director, ADR Center, International Law Institute, Washington DC.

 

 "This is a very practitioner-friendly annual survey of important arbitration developments, significantly enhanced and improved from its prior incantation. The survey of recent cases, organized by topic, provides a particularly useful means of remaining up-to-date on key issues that arise daily in arbitration practice. And the articles provide valuable insights from leaders in the field on several of those important issues."
-Robert H. Smit, Partner, Simpson Thacher & Bartlett LLP

 

 "This provides an invaluable and unique resource for practitioners and parties alike. Thanks so much for publishing this."
-Carolyn Lamm, Partner, White & Case