Principal Investments v. Harrison, 132 Nev. Adv. Op. 2 (Jan. 14, 2016)

The Court held unless the arbitration agreement commits the question to the arbitrator with “clear and unmistakable” language, a litigation-conduct waiver is presumptively for the court to decide because it is a waiver based on active litigation in court. Thus, the district court judge in this case did not err in addressing whether the moving party waived its right to arbitrate, instead of referring the question to the arbitrator

Explaining Explained Decisions : NASD\u27s Proposal for Written Explanations in Arbitration Awards

Marilyn Cane, Explaining Explained Decisions : NASD\u27s Proposl for Written Explanations in Arbitration Awards, 16 University of Miami Business Law Journal 23 (2007)

A New Code of Ethics for Commercial Arbitrators: The Neutrality of Party-Appointed Arbitrators on a Tripartite Panel

This article discusses ABA and AAA revisions to the ethics code for commercial arbitrators with respect to the neutrality of arbitrators. This Note describes the importance of the tripartite panel and the new standards in the revised code of ethics. It further examines the opposing arguments concerning the role of party-appointed arbitrators with respect to neutrality. Finally, the Note proposes that the revisers educate participants in the arbitral process of the new standard demanded of all arbitrators, so as to maintain confidence and stability in arbitration

Contract Law and Decisions on Costs

The national statutes on international commercial arbitration, the leges arbitri, do, as a rule, not contain provisions on costs. In the final award, an arbitrator has to determine the costs of the arbitration (the fees of the arbitral tribunals, of expert witnesses mandated by the arbitral tribunal etc.), which cost incurred by the parties during the arbitration are recoverable and which party has to bear what share of the costs. A decision on these issues forms part of the ordinary course of an arbitration. Further cost-related issues may arise due to the peculiarities of the case, such as a refusal of one of the parties to contribute to the financing of the arbitration. Resorting to agreements may provide a satisfactory means for certain decisions on costs in arbitration proceedings; this is by making use of the contractual nature of these agreements; by asking whether these agreements can be interpreted in a way that gives an answer to the issue at stake or - as in the case of security for costs - whether the contract may be amended to grant a motion for security for costs. It is submitted that the reasoning so achieved is at least as convincing and consistent as other approaches solicited by doctrine. Therefore, it is further submitted that this approach should be considered when an issue arises that is not addressed in the lex arbitri or the institutional arbitration rules

Power and Knowledge in Agreements to Arbitrate Statutory Employment Rights

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Pressure to Plead: How Case-Management Mediation Will Alter Criminal Plea-Bargaining

This note first discusses the facts and proceedings in Milligan. Next, it explores the history and importance of plea-bargaining in the United States and how mediation has slowly become a part of criminal proceedings. Next, this note examines the Milligan court\u27s reasoning for upholding the mediation plea bargain at issue in that case, in light of the legal landscape concerning ADR and the criminal justice system. Finally, this note argues in favor of using case-management mediation in criminal plea negotiations, and explores the proper methods and procedures to make these mediations successful