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K&L Gates Arbitration World, May 2009

Jun 01 2009

Arbitration World is an update for clients and contacts on recent developments in international arbitration law and practice.

From the Editors
Welcome to the 9th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.
We hope you find this edition of Arbitration World of interest, and we welcome any feedback.

In This Issue
• News from around the World
• Enforceability in the United States of Class Action Waivers in Arbitration Agreements: The Third Circuit Court of Appeals Signs On To Majority Trend
• Legal Privilege – A Recurrent Problem in International Arbitration
• Challenges Ahead: Arbitrating with Russian and Eastern European Parties
• More U.S. Courts Permit Discovery in Aid of Foreign Arbitrations, but Texas Dissents: U.S.C. § 1782
• The Right to be Heard: CAS Award Annulled by Swiss Federal Supreme Court
• Recent ICSID Decisions on the Meaning of “Investment”
• U.S. Supreme Court Permits Non-signatories to Arbitration Agreements to Seek Stays of Litigation and Interlocutory Appeals under FAA

View the May 2009 Edition here.

Drafting an Effective International Arbitration Agreement

Jun 01 2009

By Ian Meredith, K&L Gates

This chapter was first published in the PLC Cross-border Dispute Resolution Handbook 2009/09 Volume 2: Arbitration Handbook and is posted here with permission.

All too often the dispute resolution clause is the clause that receives the least attention. Pre-existing clauses are cut and pasted from existing agreements with little or no assessment made of the suitability of specific provisions, often late in the life of the drafting process. While any form of dispute resolution clause is rarely high on a party’s list of priorities when the contract is drawn up, the terms of that clause may well be crucial in the event of a dispute.

This chapter considers:

• The essential requirements of a valid agreement to arbitrate.
• Core provisions of an arbitration clause.
• Further optional provisions to address specific requirements.
• The interaction with other forms of dispute resolution.

To read the rest of this chapter, click here.

The Brave New World of Disputes

May 08 2009

Climate change, energy and the financial crisis will require an array of resolution mechanisms

The National Law Journal, April 14, 2009
By Ian Meredith, Laura Atherton and Marcus M. Birch

Changes to the global landscape during the next two decades are expected to drive a new generation of disputes. Climate change and unprecedented pressure on world resources — including carbon-based energy sources, minerals, food and water — will be among the key structural drivers.

At the same time, the global financial crisis and the rise of state capitalism seem set to provide the catalyst for further financial and economic conflicts.

This new generation of disputes will call for a sophisticated range of dispute resolution mechanisms and may challenge existing structures. Arbitration may be the primary focus for the resolution of natural resource-based conflicts that are commonly both international and technically specialized, but court-based litigation and the consensual alternative dispute resolution also will play key roles.

Read the entire article here at Law.com.

Arbitration of Disputes Arising from the Financial Crisis

Mar 19 2009

By: Clare Tanner & Paul F. Donahue

The current turmoil in financial markets has led to an increase in disputes involving financial institutions. Parties may have entered into transactions in better times with little consideration given to the forum in which future disputes would play out. In today’s far more challenging circumstances, the choice of forum may be central to the satisfactory resolution of disputes.

In some areas, it is common for disputes involving financial institutions to be resolved through arbitration. The Financial Industry Regulatory Authority (FINRA) is the largest self-regulatory organization, i.e., non-governmental regulator, for all securities firms doing business in the United States. (FINRA’s rulemaking, however, is subject to approval by the Securities and Exchange Commission (SEC).) Both individual and institutional customers can require a FINRA member to arbitrate disputes. Indeed, most, if not all, securities broker/dealers will refuse to do business with customers who do not agree to arbitrate disputes. Disputes between FINRA members may also be submitted to arbitration.

K&L Gates Arbitration World, March 2009

Mar 15 2009

Arbitration World is an update for clients and contacts on recent developments in international arbitration law and practice.

From the Editors

Welcome to the 8th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

We are pleased to announce the opening on March 2nd of our office in Singapore. This represents our fifth Asia office and 32nd location worldwide, including offices in eight of what many view as the key venues for international arbitration: Paris, London, Hong Kong, Singapore, Beijing, New York, Washington, D.C. and Miami.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback.

Washington Supreme Court Holds the Statute of Limitations Does Not Apply to Safeco Field Construction

Mar 12 2009

Wash. State Baseball Stadium Pub. Facilities Dist. v. Huber Hunt & Nichols-Kiewit Constr. Co., 202 P.3d 924 (Wash. 2009)

The Washington Supreme Court recently issued a decision in Wash. State Baseball Stadium Pub. Facilities Dist. v. Huber Hunt & Nichols-Kiewit Constr. Co. that may have far-reaching impact on other public construction projects. In that case, the Court unanimously held the statute of limitations does not apply to claims regarding the construction of Safeco Field brought by the owner, the Washington State Baseball Stadium Public Facilities District (“PFD”), because the construction was for the common good of the state.

At issue were construction defect claims filed by the PFD against its general contractor. The PFD alleged the general contractor failed to follow the intumescent fire protection specification for structural steel members, causing a catastrophic failure of the fire protection. The PFD discovered the defect in 2005, and filed the lawsuit in 2006. This was more than seven years after substantial completion of Safeco Field; the applicable statute of limitations for contract claims is six years. RCW 4.16.040.

The Supreme Court overturned a summary judgment dismissal of the PFD’s claims granted by the trial court, and held that the statute of limitations does not apply. The Court relied on statutory language providing that limitation periods do not apply “to actions brought in the name or for the benefit of the state.” RCW 4.16.160. The majority of the Court’s opinion grapples with the question of whether the PFD brought the construction defect action “for the benefit of the state.”

Constructing liability: Maintaining corporate protection

Mar 09 2009

Fort Worth Business Press, March 9, 2009
By K&L Gates Partner, David Coale

A critical component is shipped from Asia, sent across Texas by a distributor, and used on a Fort Worth construction project before it breaks and causes weeks of delay. Who in this “stream of commerce” may be responsible?

The owners of a corporation are generally protected from liability for the acts of the company. Even so, under the “single business enterprise” doctrine, Texas law once held that a company could be responsible for the liability of another if they shared a name or operations such as accounting, employees, offices, and finances.

Read the entire article here.

Court Declines to Find Construction Company “Statutory Employer” of Injured Worker, Denies Construction Company’s Motion for Summary Judgment

Feb 17 2009

Baugh v. Gale Lim Holdings, Inc., 2009 WL 33149 (D. Idaho Jan 5, 2009)

In this case, Gale Lim Construction contracted with the State of Idaho to repair portions of the Tin Cup Highway. Lim contacted Silver Star Communications before excavating, as required, and Silver Star then sent its employee, John Baugh, to the jobsite to mark its fiber optic cable. Baugh was injured and brought a tort action against Lim.

Lim filed a motion for summary judgment claiming that worker’s compensation law made it a "statutory employer" of Baugh and therefore immune from tort claims. Baugh defended the motion by arguing that immunity was not applicable in this case where there was no contract between Lim and Silver Star. Holding that a question of fact remained as to the existence of a contract, the court denied the motion.

Court Determines That A Builder May Seek Equitable Indemnity Against A Manufacturer Under California’s Right to Repair Act

Feb 03 2009

Greystone Homes, Inc. v. Midtec, Inc. 168 Cal.App.4th 1194 (Cal. Ct. App. 2008)

California’s Right to Repair Act (Civil Code section 895 et. seq. or the “Act”) establishes a set of standards for residential construction and provides tort liability for failing to meet those standards. The Act was enacted in response to the California Supreme Court’s decision in Aas v. Superior Court, 24 Cal.4th 627, 636 (2000), which held that “[i]n actions for negligence, a manufacturer’s liability is limited to damages for physical injuries; no recovery is allowed for economic loss alone.” In other words, under Aas, the “economic loss rule” precluded recovery for damages such as “the difference between price paid and value received, and deviations from standards of quality that have not resulted in property damage or personal injury.” The Act, however, abrogated the Aas decision by permitting a homeowner that established a violation of the Act to recover economic losses from a builder, among others, without having to show that violation caused property damage or personal injury.

In the recent case of Greystone Homes, Inc. v. Midtec, Inc., the California Court of Appeal ruled on the following two issues that had not been previously addressed under the Act: (1) whether a builder may recover for economic loss caused by a product manufacturer’s violation of the Act through a claim for equitable indemnity against that manufacturer; and (2) whether that builder may bring a direct action for negligence against the manufacturer to recover its economic losses. As discussed below, the court concluded that a builder may bring an action for equitable indemnity to recover economic loss as a result of a manufacturer’s violation of the Act, but a direct claim for negligence is not permitted.

K&L Gates Arbitration World, January 2009

Jan 15 2009

Arbitration World is an update for clients and contacts on recent development in international arbitration law and practice.

From the Editors

Welcome to the 7th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group which highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

In This Issue

• News from around the World
• Prospects for Investment Treaty Claims Arising Out of the Financial Crisis
• Arbitration Cases in the U.S. Supreme Court’s 2008-2009 Term
• Anti-suit Injunctions in Support of Arbitration Agreements – Are They Lawful in Europe?
• Is International Arbitration Delivering?
• Arbitration in Dubai: New Structures and Legal Instruments
• Arbitration Clauses in Consumer Contracts – Recent English Decisions
• Ordre Public in Enforcement and Annulment of Arbitral Awards in Germany
• Outer Bounds of Arbitrability in Texas
• Sports Arbitration Update

View the January 2009 Edition here.

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