If you have a tribunal chair who is fine but is less proactive in working with the parties to shape the process than the wing arbitrators are accustomed to doing themselves, should the wings let the chair run the show and largely stay silent or should they take a more active role?
Please provide your thoughts/comments below.
If an arbitrator determines that the facts and legal issues support a damages award in an amount higher than requested by the claimant, is a higher award warranted, and are there precautions the arbitrator should take to protect the viability of such an award?
Please provide your thoughts/comments below.
What are the major pitfalls with respect to handling multi-party and multi-contract arbitration disputes? What are the best practices for a Tribunal facing these type of disputes? What should the Tribunal and parties avoid doing?
Please provide your thoughts/comments below.
How should an arbitrator handle a situation where a party, during the course of an arbitration, keeps switching counsel when it appears likely, to the arbitrator at least, that this is being done to delay the schedule?
Please provide your thoughts/comments below.
Is there an ethical issue when an arbitrator is being listed by an institution and declines to serve because he/she is too busy to accept new cases? Would the more appropriate action be for the arbitrator to request to be placed on inactive status for a few months? How should the institutions handle arbitrators that repeatedly decline service?
Please provide your thoughts/comments below.
Rekha Rangachari, Executive Director of NYIAC, runs a weekly Around Town: Upcoming Events in International Arbitrations Message. We at the Section of Dispute Resolution of NYSBA greatly appreciate her thoughtful messages to our ADR community worldwide and run them weekly in this blog. The Section is a proud Founding Organization of NYIAC.
Dear Friends,
Some time has passed since we last spoke. In the intervening weeks, the U.S. festivities of Thanksgiving came and went. It got me to thinking about these holidays under the same naming convention -- here in the U.S., to Canada and Liberia, including Grenada. The anchor is to welcome the harvest and whatever it brings with loved ones, reflected in many cultures. Perhaps these are the global editions of thanks-giving, from the Tamil Pongal, to the Chinese Mid-Autumn Festival and the Jewish Sukkot. Each of these and many more are odes to family and home, one depiction embodied in Magical Dinners, with a look into an immigrant Thanksgiving and unearthing how we belong. Let's celebrate in this time of known and unknown variants, vaccinations and boosters, the homecomings and the restorative family moments. Let's build closeness of both proximity and emotion, even here over email.
In other news, I have been curiously considering trends as 2021 comes to a close. Have you heard of exercise snacks? It's really that easy, a snack of exercise (walking up and down stairs in between Zoom meetings, for instance) towards efficiency of heart, stamina and mental sanity. Emerging technologies are another point of fascination, e.g., 3D-printed bones and houses, each important to our well being and thankfully, now manufactured with ease. If this doesn't peak your interest, how about luxury vacations turned on their heads, where thrill-seeking, affluent vacationers are dropped in extreme locations (under great supervision at a cost, of course) to manage the elements and get back to safety. I'll leave the final point, of hybrid work environments, open for your comments. Where 2020 was about resilience, 2021 applauded hybridization. What will 2022 bring?
Take a peek below as events calendars renew. I applaud the many arbitration weeks that have, like harvests, come and gone with great pomp and circumstance. Stay safe and well, dear friends -- and don't hesitate to call upon NYIAC or me if we can be of help.
Ever yours,
Rekha
Upcoming Events
Earlier this year at a New York Law School arbitration program, the audience of over 150 participants (arbitrators, advocates, and law students) was asked the following diversity question:
Do you view white women to be diverse?
The results:
• Yes 59%
• No 41%
Do the percentages surprise you? How would you respond to this survey question? If yes or no to the question, why?
Please provide your thoughts/comments below.
During a pending arbitration matter, is it acceptable for the arbitrator overseeing the matter to ask one of the parties or counsel to serve as a reference for acceptance into an organization or institution (e.g. bar association or ADR provider membership)? If yes, what type of disclosures should the arbitrator, party or counsel make? If no, when is it acceptable, if at all, for an arbitrator to make such a request from one of the parties or counsel to a previous arbitration matter that he/she oversaw (i.e. months, one year, etc.)?
Please provide your thoughts/comments below.
Do you believe that an arbitrator should regularly encourage the parties to think about settlement (or mediation) at various times throughout the course of an arbitration proceeding, or should they stay away from any discussion of settlement, after the preliminary hearing, and simply recognize that the parties are looking for a final determination from the arbitrator? If an institution is involved, should they be the one encouraging settlement (or mediation) rather than the arbitrator?
Please provide your thoughts and comments below.
Claimant initiates an arbitration for breach of contract pursuant to a contract that calls for binding arbitration. Respondent files its responsive pleading denying allegations and laying out its defense. Shortly after, respondent lays off all staff, fires its lawyer, and shuts down all business options. At that point, it does not appear any further in the arbitration. The contract between the parties contained a clause outlining a mechanism for filing a Motion for Default if one of the parties fails to make an initial appearance or any time effectively withdraws its participation (expressly or impliedly) in the arbitral proceeding. The mechanism requires the motion to be accompanied by substantiation of efforts to serve the defaulting party, explain the defaulting party's withdrawal of participation, a summary of legal and factual arguments, and at least one sworn affidavit of a principal witness in support of the moving party's claims. The contract further states that "no hearing or other briefing shall be required" but the Arbitrator in reviewing the motion of default may request additional information in support of the motion. How does this mechanism square with R-31 of the AAA Commercial Rules that allows arbitration in the absence of a party, but states that "an award shall not be made solely on the default of a party." Would the documents submitted in the Motion for Default, as outlined in the parties' contract, satisfy Rule R-31's requirements for submission of evidence?
Please provide your thoughts/comments below.
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