5 Key Trends In Workplace Class Action Litigation: Trend #2 Change Is The New Normal

Seyfarth Synopsis: The data and analysis from workplace class action rulings, case filings, and settlements showed that change is the new normal in 2020-2021. As many pro-business precedents continued to roll out and take hold in 2020, voters elected to turn the White House from red to blue and, as a result, likely precipitated changes in numerous areas that will expand worker rights. Along with changes in the arbitration landscape, the shift in Administrations is likely to bring increased regulation of businesses, renewed enforcement efforts, and policy changes at the agency level that will result in efforts to abandon or overturn pro-business rules of the Trump Administration.

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What Do Investor-State Arbitration Laws Mean For Your Business

The global market has enabled large corporations to expand into foreign territory. Yet many corporate entities are finding foreign states are clipping their wings and preventing an equal playing field with the homegrown competition.

Consequently, the International Chamber of Commerce (ICC), introduced investor-state arbitrations laws to that enabled foreign investors to challenge States that impose unfair advantages through laws and administrative procedures that do not apply to national companies.

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Supreme Court clarifies test of arbitrator impartiality and arbitrators' duty of disclosure

In Halliburton Company v Chubb Bermuda Insurance Ltd,(1) the Supreme Court unanimously upheld the Court of Appeal's decision to dismiss an application to remove an arbitrator on the grounds of apparent bias. The Supreme Court confirmed the Court of Appeal's decision that arbitrators are under a duty to disclose appointments in references concerning the same or overlapping subject matter with a common party, although the Supreme Court's reasoning differed. On the facts of this case, while the Supreme Court found that the arbitrator had breached his disclosure obligations, it further held that an objective observer would not have justifiable doubts as to the arbitrator's impartiality.

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The new DIFC-LCIA Arbitration Rules 2021 - Key Features

The updated DIFC-LCIA Arbitration Rules 2021 (“2021 Rules”) entered into force from 1 January 2021.

The amendments introduce changes intended to promote the fair, efficient, and expeditious conduct of arbitrations. In this update, we summarise the key features.

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Landscape of Dispute Resolution

When you hear about the word landscape of dispute resolution, the first thing that comes to the mind of the people is litigation before a court of competent jurisdiction. However, the parties need to be made aware that the landscape of dispute resolution is wider. It includes along with litigation, arbitration and mediation.

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Mediating joint venture disputes

India has been on an unabated growth trajectory - supported by a Gross Domestic Product (GDP) of nearly US$11.5 trillion (S$15.9 trillion). India is also the world’s third largest economy after China and the United States, according to 2019 International Monetary Fund estimates. Rising affluence and growing urbanisation in India has attracted investors who are keen to tap on India’s elite and affluent households - two of the fastest-growing income segments in the country, expected to double to 16 percent of the population by 2025. The rapid growth of India has not stopped despite the COVID-19 pandemic. Indeed, the authors continue to observe increasing number of investments in tech-related start-ups in India by foreign venture capital funds and institutional investors and also the shift in supply chains with more companies looking to set up their manufacturing plants and factories in India, even in the last 6 months

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Pandemic Pivot - ADR Poised for Prominence During Recovery

On January 1, 2020, “zoom” was a verb, a noise a car makes. Three months later, Zoom be came a noun. It happened in the blink of an eye, like when Amazon no longer referred to a river in the rainforest, and Apple was no longer a fruit. Just as suddenly, Corona isn’t a beer served with lime. No one can honestly say the legal profession was prepared for a pandemic. While some companies had a long history of team meetings via WebEx and GoToMeeting, lawyers and the judiciary were far away from regularly using these tools. Yes, we could do arraignments via video from the jail. We could do video depositions. But no one voluntarily selected those options very of ten, especially when in-person transactions seemed more convenient. Now a virtual plat form is our default. Anything in person is the second choice for most. Quite the pivot, born of necessity.

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Switzerland Updates its Arbitration Law

On 1 January 2021, the revision of the Swiss arbitration law came into force (the “Amended PILA”). Voted in June 2020 by the Swiss parliament, the amendment to the law that governs international arbitrations seated in Switzerland is an update that builds in welcomed clarifications and improvements. The new law makes arbitration in Switzerland more flexible and accessible and further strengthens Switzerland’s position as one of the most attractive venues for hosting international arbitrations.

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Disputes against governments under investment treaties: a growing trend in the mining industry in 2020

A commitment of capital in a foreign state, particularly with long-term profit horizons, can be a risky undertaking. When a host state harms a foreign company's investment, the domestic legal system may not provide an adequate remedy. For example, an investor may not wish to settle disputes before a host state's domestic courts for reasons of (i) fear of bias; or (ii) unfamiliarity with the domestic legal system.

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Tasmanian Government to form debt mediation scheme for farmers based on banking Royal Commission recommendation

The government will develop a new mediation scheme to help farmers under financial stress work with their creditors.

Primary Industries Minister Guy Barnett said the scheme would provide a structured negotiation process where a mediator can help farmers and lenders reach formal agreements on debt management.

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Five Litigation Funding Predictions for 2021

Ralph Sutton, CEO of Validity Finance, predicts the five top litigation funding trends for the new year. He looks at the impact of Covid-19 on trials and arbitration, and says pricing will remain stable, but clients and firms will be able to secure deals that were not conceivable five years ago.

This coming year will be filled with milestones following a tumultuous election season and tragic loss of life from Covid-19.

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Amazon-Future row: Singapore's arbitration court forms 3-member panel to pass final verdict

Amid ongoing arbitration battle between US-based Amazon and Kishore Biyani-led Future Retail, the Singapore International Arbitration Centre (SIAC) on Tuesday formed a three-member panel to pass its final verdict on Future Group's Rs 24,713 crore deal with Reliance Industries Ltd. Both the parties have reportedly agreed to the names of the three-member arbitration tribunal required for the arbitration process, which is expected to start over the next fortnight.

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Massachusetts High Court Says Uber Cannot Force Customers into Arbitration

The highest court in Massachusetts has determined that Uber cannot force customers into arbitration.

According to The Boston Globe¸ Uber had required prospective passengers to consent to an online agreement before using the rideshare application. That agreement—which most consumers are not likely to have read or understood—waived passengers’ right to file a lawsuit against the company.

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New ICC Rules 2021 and New ICC Note to Parties and Arbitral Tribunals come into force

January 2019”. However, this section also sets out greater clarity regarding when such material will not be published due to confidentiality. Importantly, this also includes the ability of any individual or entity to tell the Secretariat that it does not wish, as a general policy, any ICC award and related documents to which it is a party to be published, in which case none of these awards or decisions will be published. This may be of particular interest to clients who are frequent users of ICC arbitration.

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Supreme Court clarifies test of arbitrator impartiality and arbitrators' duty of disclosure

In Halliburton Company v Chubb Bermuda Insurance Ltd,(1) the Supreme Court unanimously upheld the Court of Appeal's decision to dismiss an application to remove an arbitrator on the grounds of apparent bias. The Supreme Court confirmed the Court of Appeal's decision that arbitrators are under a duty to disclose appointments in references concerning the same or overlapping subject matter with a common party, although the Supreme Court's reasoning differed. On the facts of this case, while the Supreme Court found that the arbitrator had breached his disclosure obligations, it further held that an objective observer would not have justifiable doubts as to the arbitrator's impartiality.

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Condo questions: Is arbitration necessary if home contract has that provision?

Q: We live in a new home community. We have some construction issues with our home, and our contract has an arbitration provision in it. Are we required to arbitrate? Is that like a mediation? Is this the same as suing the builder?

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The Challenges Going Forward

While it is by no means perfect, international arbitration has become the primary mechanism by which disputes are resolved in the oil and gas industry. For cross-border transactions involving parties from a broad range of jurisdictions, or disputes between an investor and a state, there is no practical alternative. It provides the opportunity for an impartial, independent determination of a dispute with an established mechanism for the enforcement of awards in most jurisdictions in the world under the auspices of the New York Arbitration Convention of 1958. Unfortunately, the dispute resolution process itself is becoming increasingly complex and uncertain, adding a further layer of difficulty to the parties finding solutions to their disputes. The time and cost associated with international arbitration now compares unfavourably with litigation (which was never a good benchmark in the first place). Extended document disclosure requests and the willingness of arbitrators to accede to them is burying the process in indiscriminate evidence. And, despite the inherent flexibility and the discretion vested in the arbitrators, first procedural orders are not always designed to meet the specific needs of the parties or the dispute, nor do they provide for an efficient and cost-effective process. This fourth perspective is a cause of concern as uncertainty over the outcome of dispute resolution process only creates additional work and delay, benefiting the international arbitration industry and not the parties it is designed to serve.

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Theory vs. Reality: Where the Rubber Hits the Road

After spending four months and 140 hours of intense theoretical study, I walked away from one of Toronto’s leading Universities with a certificate in Dispute Resolution. I was frequently told that this training had prepared me to be a mediator and that I had the capabilities and was ready to mediate any matter in any field. In fact, this mantra was stated on the first day of the course by the director and was frequently repeated by all my professors during each class and for the entire program. I was told I just needed to understand the steps of the process and then I would be able to mediate any matter with anyone. With my only experience coming from role plays in school, I decided to test my skills in a safe environment by obtaining an internship. The focus of this 80-hour program was to supervise me during observations, co- mediations and mediations while also allowing me to complete the requisite qualifications for the qualified mediator (Q.Med.) designation

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A Company’s Best Friend ‎– An Effectively-Drafted Arbitration Clause in an IC Agreement: December 2020 News ‎Update

December was a very slow month for court decisions affecting independent contractors, but both decisions reported below confirm that effectively drafted arbitration clauses remain one of two “best friends” for businesses that engage independent contractors. On the very day the U.S. Supreme Court issued its decision in New Prime Inc. v. Oliveira in January 2019, we predicted here that, despite some commentators’ exuberance and others’ despair, the decision “may have little or no impact as to whether workers classified as independent contractors can be compelled to arbitrate their IC misclassification claims.” In New Prime, the Supreme Court held that a court, not an arbitrator, should decide if an IC is covered by the Federal Arbitration Act’s arbitration exclusion for workers engaged in interstate transportation. We commented that the FAA is not the only basis upon which companies can seek to compel arbitration; most state arbitration laws, which typically do not have exclusions for interstate transportation workers, also may provide an alternative basis to compel arbitration of IC misclassification class action claims. That is exactly what transpired in one of the two IC arbitration cases we discuss below.

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