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Arbitral Jurisdiction - Part 1, Chapter 2 - AAA Yearbook on Arbitration and the Law - 23rd Edition

Author(s): 
Stephen K. Huber
Ben H. Sheppard Jr.
Page Count: 
78 pages
Media Description: 
PDF from "AAA Yearbook on Arbitration and the Law - 23rd Edition"
Published: 
August, 2011
Jurisdictions: 
United States
Practice Areas: 
Operation and Effects,
Enforceability of Arbitration Agreements,
Court Decisions,
Jurisdiction and Powers of the Courts in Matters of Arbitration Generally,
Dispute Resolution & Litigation,
Class Action,
Agreement to Arbitrate,
Arbitrability,
Separability
Author Detail: 

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.

 

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Description: 

Originally from: AAA Yearbook on Arbitration and the Law - 23rd Edition

2.01 Scope of the Arbitration Agreement

Idea Nuova, Inc. v. GM Licensing Group, Inc., 617 F.3d177 (2d Cir. 2010)

An agreement to submit commercial disputes to “AAA arbitration for resolution” is properly construed as an agreement to arbitration pursuant to the AAA Commercial Arbitration Rules, thereby incorporating those rules into the agreement.

Marketer, Idea Nuova, brought action to vacate or modify four arbitration awards in favor of licensing consultant, GM. The parties had agreed to submit disputes to --AAA arbitration for resolution.‖ As an alternative to vacatur or modification, Idea Nuova argued that the absence of language in the agreement stating that the arbitration award would be --final and binding‖ allowed the district court to reject the arbitration awards and review the dispute de novo because the Federal Arbitration Act‘s § 9 --consent to confirmation‖ requirement is not met. Instead, the district court granted GM‘s motion to confirm the awards.

On appeal, Idea Nuova renewed its argument that, absent language indicating an arbitration award is --final and binding,‖ the award may be reviewed de novo by the court, the clause providing for --AAA arbitration‖ notwithstanding. The 2nd Circuit rejected this argument, despite its earlier decision in Aeronautical Industrial District Lodge 91 v. United Technologies Corp., 230 F.3d 569 (2d Cir. 2000). However, in that case, the 2nd Circuit signaled that language indicating that an award is --final and binding‖ is not essential because there are equivalent ways of expressing consent to binding arbitration.

Table of Contents: 

Chapter 2
Arbitral Jurisdiction

2.01 Scope of the Arbitration Agreement

2.02 Who Decides Arbitrability: Court or 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