The Arbitration Proceeding - Part 1, Chapter 6 - AAA Yearbook on Arbitration and the Law - 23rd Edition
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). He has degrees in law from the University of Chicago and Yale University, and a B.A. from Earlham College.
Professor Huber's teaching and scholarly interest have centered on business and commerce (Contracts), and the regulation thereof (Administrative Law, Regulation of Financial Intermediaries). Over the last decade, his writings have focused on private binding dispute resolution proceedings (Arbitration). Teaching materials include: Stephen K. Huber & Maureen A. Weston, Arbitration: Cases and Materials (3d ed. LexisNexis 2011); Wendy Trachte-Huber & Stephen K. Huber, Mediation and Negotiation: Reaching Agreement in Law and Business (2d ed. LexisNexis 2007). 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. He is co-editor, with Lawrence W. Newman, and a contributing author to Take the Witness: Cross-Examination in International Arbitration (Juris 2010).
He graduated with high honors from the University of Texas School of Law in 1968, and was law clerk to the Honorable Homer Thornberry, United States Court of Appeals for the Fifth Circuit from 1968 to 1969.
Originally from: AAA Yearbook on Arbitration and the Law - 23rd Edition
6.01 Preclusion: Res Judicata and Collateral Estoppel
Shell Oil Company v. CO2 Committee, Inc, 589 F.3d 1105 (10th Cir. 2009)
1. The res judicata effect of a prior arbitration award is an arbitrable issue that should not be decided by a court.
2. A new arbitration panel (chosen by the parties) determines whether a second arbitration complaint is barred by res judicata unless an agreement specifies otherwise.
The CO2 Committee was created to monitor and enforce the future-relief provision of three class action settlement agreements with companies that produce the CO2 gas. In 2001, the committee brought an arbitration complaint alleging that the producers’ accounting practices violated the agreement. The arbitration panel selected for the parties determined that the producers had not violated the agreement.
In 2007, the committee filed a second arbitration complaint against the producers. The producers filed a lawsuit in federal district court seeking a judicial declaration that the second arbitration complaint was barred by res judicata and seeking an injunction prohibiting the committee from pursuing the second arbitration. The district court referred this res judicata issue to the original arbitration panel.
The court of appeals held that the district court correctly determined that the res judicata effect of the original panel’s order is an arbitrable issue that should not be decided by a court. However, a new panel would decide res judicata effect of original panel’s order. In the court’s view, the agreement was clear that a new panel would be convened each time a party demands arbitration on an arbitrable issue. There was no provision that established a particular panel’s appointment beyond the resolution of a particular complaint. Regardless of the “potential efficiency benefits of having the original panel outline the precise scope of its own prior order," the court's authority is limited by 9 U.S.C. s 5 and the parties' panel selection provisions.
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