When the coronavirus pandemic heralded the globe in 2020, little was predictable, let alone known, in terms of the paralysis and crises it would cause, given the unquantifiable damage and its impact on global socio-economic livelihood. The scale of the outbreak is unprecedented and quite extraordinary. One stark reality of COVID-19 is that many commercial disputes are bound inevitably to result in court or arbitration proceedings due to the adverse impact of the pandemic.
Read moreAgreement on “non-binding” arbitration not an arbitration agreement
An agreement to submit to non-binding arbitration is not an enforceable arbitration agreement under the English Arbitration Act 1996. The court dismissed an application for stay of English court proceedings under s9, citing absence of a valid arbitration agreement between the parties. The court held that an arbitration agreement must provide for a binding determination of disputes: IS Prime Ltd v (1) TF Global Markets (UK) Ltd (2) TF Global Markets (AUST) PTY LTD (3) Think Capital Ltd (2020) [2020] EWHC 3375 (Comm)
Read moreThe road less travelled for dispute resolution - the benefits of ENE in patent litigation
It is an all too common scenario – a patent infringement complaint has been filed and the parties agree to resolve the dispute prior to service of the complaint. Yet they are unable to reach an agreement and the lawsuit moves forward. The next off-ramp settlement on the litigation highway is often thought to be mediation or arbitration. However, these processes are typically not pursued until later in the litigation, after claim construction has occurred and discovery is well underway. All this time the fee meter keeps running. Indeed, a substantial number of cases make it all the way to the proverbial ‘courthouse steps’ before settling.
Read moreMediation Underway to Avert Possible Strike That Could Affect Norwegian Offshore Fields
Mediation is starting Monday on the wage deal between the oil workers' union SAFE and the Norwegian Oil and Gas Association in a bid to avert a potential strike that could shut down production from several offshore oil fields in Norway.
"This can potentially lead to a strike which could affect activity at the terminal at Mongstad. The tariff agreement in scope for mediation is the Oil Agreement - Oljeoverenskomsten 224. The agreement is between YS/Safe, Negotia, and Norwegian Oil and Gas Association/Norsk Industri," Equinor said Sunday evening.
Read moreThe Federal No Surprises Act and Its Arbitration Provisions
On 28 December 2020, the federal No Surprises Act (Act)1 was enacted. The Act seeks to protect patients from so-called “surprise medical bills” in certain emergency and nonemergency settings for out-of-network patients. This alert focuses on the Act’s arbitration provisions but first provides necessary background to those provisions.
Read moreWhy are Lawyers Good Mediators?
In court, a lawyer’s role may be likened that of the client’s champion, and in most cases they represent their clients with great focus and passion. But lawyers, especially those who are regularly involved in litigation before the courts, are also accustomed to working with stringent laws, highly technical rules of evidence and within well-defined parameters of operation. Those of us who have seen lawyers in action before a court may therefore find it difficult to believe that these tough litigators can also display the ‘softer’ skills required for mediation. Fortunately for the parties involved in a mediation case, lawyers can indeed remove the cloak of litigator and turn into effective mediators. This is just the first of several good reasons that lawyers achieve great success in mediation.
Read moreHow reliable is witness testimony in international arbitration? ICC Commission publishes report
How reliable is witness testimony in international arbitration? ICC Commission publishes report on “The Accuracy of Fact Witness Memory in International Arbitration” and provides guidance on best practice for in-house counsel and external lawyers.
The ICC Commission on Arbitration (the “Commission”) has published a report on “The Accuracy of Fact Witness Memory in International Arbitration” (the “Report” - accessible here). The Commission decided to undertake this work following a guest speech (entitled ‘Unreliable Recollections, False Memories and Witness Testimony’) delivered by Toby Landau QC at a meeting of the ICC Commission on Arbitration and ADR (in October 2015). The Report sets out the work undertaken by a Task Force (set up by the Commission) on ‘Maximising the Probative Value of Witness Evidence’ and incorporates scientific input from psychologists specialising in human memory. This article discusses the Report’s findings and lists some key practical considerations practitioners can take away from these conclusions.
Read moreCongress Eyes Arbitration Clauses in Employment Contracts
As Democrats in Congress craft an agenda in line with President Joe Biden’s stated focus on worker issues, they’re resurfacing long-standing efforts to address arbitration clauses in the employment context.
Controversial arbitration clauses in employment contracts are those that generally require those who sign them to agree not to pursue workplace disputes through lawsuits in court, and to instead pursue any claims through an arbitration process. By 2024, such agreements would apply to roughly 80 percent of private-sector employees not in a union, according to an estimate in May 2019 by the nonpartisan research nonprofit the Economic Policy Institute and the pro-worker social justice advocacy group The Center for Popular Democracy.
Read moreSurprise Medical Billing – Changes to Law Will Have a Significant Impact on Group Health Plans
On December 21, 2020, Congress passed the Consolidated Appropriations Act, 2021, which included a $900 billion COVID-19 relief and stimulus package and a new set of rules intended to address “surprise” medical billing. The No Surprises Act (the “Act”), which is part of the 2021 appropriations act, makes various changes to ERISA that are intended to ban the practice of “surprise” medical bills, which arise when a person covered by a group health plan unexpectedly receives emergency medical care from an out-of-network provider at an out-of-network facility or from an out-of-network provider at an in-network facility. In these instances, the out-of-network provider can bill the person for the difference between their charged rate and the amount an employer’s group health plan (or the insurer) agrees to pay, which is known as “balance billing.” The Act takes several steps to address this situation.
Read moreThe winds of change - new arbitration rules for the International Court of Arbitration
The winds of change blow on and on. Even as the United Kingdom completed its historic exit from one international body with the expiry of the Brexit transition period on New Year's Eve, so we were reminded – the very next day – that internationalism persists. As 2021 dawned upon us, the International Court of Arbitration of the International Chamber of Commerce ("ICC"), headquartered in Paris since 1923, marked the arrival of its new Rules of Arbitration ("2021 ICC Rules") on New Year's Day.
Read moreRecord year for arbitration cases registered with ICSID
The record number of new arbitration cases registered with the International Centre for Settlement of Investment Disputes (ICSID) in 2020 highlights the confidence that investors retain in resolving their disputes with states and state sponsored companies through arbitration, an expert has said.
According to ICSID, which is part of the World Bank and deals in international investment dispute resolution and conciliation, there were 58 new cases registered with it last year, up from the previous record high of 56 in 2018 and the 39 recorded in 2019. The number of cases registered with ICSID has typically been rising since the late 1990s.
Read moreNew code on preventing and addressing workplace bullying
Effective from 23 December 2020, the new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (S.I. No. 674/2020 “the code”) provides employers with fresh legal direction on what constitutes workplace bullying and what employers are expected to do when presented with allegations of bullying.
Read moreArbitration is Alive and Well
New Jersey business owners may be reluctant to introduce arbitration programs for their employees because of a state law enacted in 2019 that prohibits agreements that prevent litigation of workplace disputes in court by directing them into arbitration. Fortunately, the likelihood is that in most instances, New Jersey’s law is not enforceable and an employer that wants to steer employee disputes to arbitration, rather than court, can do so.
Read moreInnovative Ways to Use Mediation (other than Dispute Resolution)
The mediation process is inherently flexible. Traditionally, it is used as a dispute resolution tool where parties can come together, call a timeout and reach a mutually acceptable solution. But in the time of a pandemic or even otherwise, there are several uses of the mediation process. Different situations and circumstances can bring out several issues that one might face especially when working in a group or dealing with other people in general. Principles or even the process of mediation can help figure out a plan or a strategy for the developments and help tackle any issue faced by the parties.
Read moreThe Ten or Twelve Top Reasons (More or Less) for Not Mediating a Dispute - Revisited
At the beginning of a new year, it seems a good time to look back on some of the common excuses, sorry, reasons, for refusing to mediate that occasionally continue to circulate especially in litigated cases.
Quite a few of these nuggets have been around in one form or another since the mid-1990s, so you have likely heard them before, but still, let us look at them again from the perspective of mediating at any time, and especially during the time of the COVID crisis.
Read moreArbitration vs. Litigation: More Than Just a Preference for RWI Policyholders
On Jan. 15, 2021, a New York state court judge issued an opinion denying an insurer’s motion to dismiss a claim for coverage under a representations and warranties insurance (RWI) policy in WPP Group USA, Inc. v. RB/TDM Investors, LLC et al. More specifically, the court rejected the insurer’s argument that the claim was subject to certain exclusions under the policy and ordered the parties to proceed with discovery.
Resolving COVID related insurance claims - how can mediators help?
We have all followed the high profile test case, brought by the FCA, to clarify how Business Interruption policies should respond to pandemic related claims. The Supreme Court judgment in The Financial Conduct Authority v Arch and Others has provided much needed guidance on the law is this area. Not least, it has overturned the egregious decision in the Orient Express Hotels case which left a hotel policyholder without cover from the impact of Hurricane Katrina. The court had decided in the now discredited case that a policy holder can’t claim for a BI loss if the event which caused it damage also led to wider area damage which would have affected its business even if it had suffered no direct loss!
Read moreThe Federal No Surprises Act and Its Arbitration Provisions
On 28 December 2020, the federal No Surprises Act (Act)1 was enacted. The Act seeks to protect patients from so-called “surprise medical bills” in certain emergency and nonemergency settings for out-of-network patients. This alert focuses on the Act’s arbitration provisions but first provides necessary background to those provisions.
Read moreParties Set Contours To Govern Future Disputes
The tsunami of litigation brought on by the pandemic has crystalized the importance of “dispute-resolution” clauses.
In particular two high-profile cases – pandemic-related cases against Airbnb and Amazon — have brought this to light. These clauses can be potent tool for business owners to minimize litigation risk.
In a well-written business contract, parties will set contours that would govern any future dispute between them. In such a dispute-resolution clause, the parties often select a court location, consent to its jurisdiction, and waive the right to a jury trial.
Read moreCOVID-19–Related Employment Litigation: How It Started...How It’s Going
Over 2,500 COVID-19–related employment lawsuits were filed in the United States in 2020. Ogletree Deakins’ Interactive COVID-19 Litigation Trackerhighlights the industries impacted, locations, and types of claims in these matters.
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