As we head toward the long Labor Day weekend, the past two days have been pretty quiet on the reported decision front. As usual, the overwhelming majority of cases have dealt with the issue of arbitrability. Two of the cases, though, are particularly useful for an arbitration notebook.
The enforceability of a website based arbitration clause
Who Decides Arbitrability and When the Doctrine of Estoppel Can Compel Arbitration
Alcoa Corp. v. Anheuser-Busch InBev Sa/Nv, 2020 U.S. Dist. LEXIS 160416 (Sept. 2, 2020) contains a good analysis of two issues frequently faced in arbitration disputes. First, it addresses the question of whether the arbitrator or the court determines arbitrability. Following Second Circuit authority, the court distinguishes between (i) agreements with broad arbitration clauses that commit “all disputes” to arbitration or incorporate rules of a tribunal such as the AAA which provide that arbitrability is for the arbitrator to decide and (ii) those which submit only certain disputes to arbitration. In the former cases, the issue of arbitrability is for the arbitrator; in the latter, the court decides whether the issue presented is within the scope of the arbitration clause. Second, having decided that the court should determine arbitrability, Judge Castel dealt with the issue of whether those who were not parties to the arbitration agreement could, nevertheless, be bound to arbitrate thereunder. The court first lays out five theories which can bind nonsignatories to arbitration agreements: incorporation by reference, assumption, agency, veil-piercing/alter ego, and estoppel. After a lengthy analysis of the facts, the court determined that Alcoa Corporation assumed the obligations of Alcoa, Inc., including the obligation to arbitrate with InBev. It rejected, however, the claim that Alcoa USA (a third “Alcoa” entity) was estopped from denying arbitration with InBev by virtue of its use of confidential information received from Alcoa, Inc. The discussion of estoppel at page 6 of the Lexis form of the opinion is a good summary of the law. The only way to understand the case, though, is to read it in full – there are way too many “Alcoa”s for a summary to be adequate.
Upcoming Arbitration Courses
There is some really good arbitration education on the horizon, but registration deadlines may be approaching.
The ABA Dispute Resolution Section is sponsoring two programs. From September 14 to September 18, the Section is holding a Tech Expo for Dispute Resolution Professionals. Registration and more information are available at ambar.org/drtechexpo. On September 23rd, there is a free program for law students and professionals on “pivoting” your career. More information at the Dispute Resolution Section of the ABA’s site, americanbar.org/groups/dispute_resolution/
On October 6, the New York State Bar, together with presenters from the AAA-ICDR, are presenting a “bootcamp” on the hot and important topic of cybersecurity in arbitration and mediation. More information and registration at the events section of the NYSBA site, nysba.org
The Chartered Institute of Arbitrators is offering their Accelerated Route to Fellowship course starting September 26, 2020. Also on September 15, they are presenting what looks like a great webinar called “Schein”-ing a Light on Circuit Splits, which will address discovery in international arbitration, the enforcement of arbitration agreements against nonsignatories, and the standard for determining delegation. Maybe both the cases in today’s summary will change? Information at ciarbnab.com.
Have a great Labor Day weekend and remember – BE SAFE.