Nalco Company, LLC v. Bonday: A Case Study in Standards of Post-Award Review
by Andrew Flake
Courtesy of a new puppy, I possess a large and growing collection of unmatched shoes. Some have laces or tongues gnawed, some have holes chewed in them, some have been spirited away and are missing entirely. By any measure, multiple lost or damaged shoes...
A Coda to Docs of CT: Looking (Way) Back and Ahead at Things to Come
by Andrew Flake
In last's week's post on the Docs of CT, LLC v. Biotek Servs., LLC opinion, we looked at the high bar the Supreme Court set for a party's post-award challenge to an instance of an arbitrator's ex parte communication on a merits topic.
Georgia Supreme Court Defines “Prejudice” For Purposes of GAA Arbitration-Award Challenges
by Andrew Flake
In a case of first impression, the Georgia Supreme Court has elaborated on the meaning and proof of "prejudice" in challenges to arbitration awards brought under the Georgia Arbitration Act (GAA). challenging arbitration awards.
The arbitration at issue in Docs...
The Mediation Mindset: Reflections on the Fourth of July
by Andrew Flake
Every year in Atlanta on the Fourth of July, runners, walkers, spectators and friends show up for the Peachtree Road Race. The race is a 10K run that winds through the city's Midtown district and ends up in Piedmont Park, with lots of...
An Ounce of Prevention: Eleventh Circuit Assesses “Default” Under Section 3 of the FAA
by Andrew Flake
Where a party wishes to take advantage of its contractual right to arbitrate, it cannot act inconsistently with that right. And that includes compliance with the administrative and policy determinations of the administering arbitral institution. So the Eleventh Circuit held recently in Merritt Island...
Generative Artificial Intelligence (GenAI) in Arbitration: Technology and First Principles
by Andrew Flake
Last week I attended an excellent conference, a gathering of AAA-IDCR arbitrators from across the country, and much of our discussion was AI-focused. And for good reason: the integration of generative artificial intelligence (GenAI) into arbitration, by both arbitrators and advocates, represents more...
Applying Third-Party Beneficiary Exception, 11th Circuit Affirms International Manufacturing Dispute Should Be Arbitrated
by Andrew Flake
For all of its many advantages, arbitration, we might say, is not for everyone -- and in particular, not for those who have not agreed by contract to be there. This is the fundamental principle that arbitration is a creature of contract, that arbitration...
Fourth Circuit Considers Arbitration Waiver, Permitting Claims under Servicemembers Civil Relief Act (SCRA) to be Arbitrated
by Andrew Flake
A new Fourth Circuit opinion reminds us of the analysis required when parties arguing that federal statutory claims should be excluded from arbitration. In Espin v. Citibank, N.A., returning military personnel brought claims under the Servicemembers Civil Relief Act (SCRA), a statute providing credit-related...
The Perils of Proceeding with Unilateral Arbitration: Eleventh Circuit Affirms Vacatur of $3.5 Million Award on Appointment-Related Grounds
by Andrew Flake
Party autonomy in arbitration extends, as a foundational principle, from the beginning to the end of the arbitration process. We have the arbitration clause that gives rise to the arbitration, and we have the tribunal’s award, limned by exactly what the parties have agreed...
Dealing with Impediments to Settlement: The Challenging Concept of “Fairness”
by Andrew Flake
In a well-known psychology experiment, each member of a group receives some amount of money, say $100, that they can keep on the following condition: They must offer some amount, from $1 to $100, to a partner, and the partner receiving the offer must...