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Updated: 2 days 19 hours ago

New Swiss Rules of Mediation

Thu, 2019-08-08 13:48

The Swiss Chambers’ Arbitration Institution (SCAI) has revised its Rules of Mediation, effective July 1, 2019. The text of the new Rules is available here. The new Rules revise those that have been in effect since 2007.

Of particular interest are Articles 16 and 17, which provide for the issuance of a “mediation certificate confirming that the mediation took place and stating whether it led to a settlement,” and “a certificate of authenticity of the settlement agreement.” In the case of the latter certificate, the SCAI Secretariat requires either the parties’ signature to the settlement agreement at the Secretariat, or written confirmation by the mediator that s/he witnessed the parties signing the agreement.

These provisions satisfy the requirements of Article IV of the newly executed Singapore Convention, and are the first institutional Rules to do so, as far as I can tell.

Other provisions of interest in the new SCAI Mediation Rules include the designation of a “seat of mediation” in Article 14 — a concept that I do not immediately grasp — and the empowerment of an arbitrator, in proceedings pending before the SCAI, to “suggest that the parties seek to amicably resolve the dispute, or any part of it, by recourse to mediation,” in Article 19. This second provision is oddly placed in the Mediation Rules, since it refers to the powers of an arbitrator. It also is distinctly precatory, in contrast to AAA Commercial Arbitration Rule R-9, which requires parties to AAA arbitrations to mediate the matter concurrently with the arbitration, unless one or both parties formally opts not to do so.

“Infinite” Arbitration Clauses

Tue, 2019-07-09 13:59

Prof. David Horton of the University of California, Davis, School of Law has posted a provocative article scheduled to be published by the University of Pennsylvania Law Review. Titled “Infinite Arbitration Clauses,” it collects and comments upon purported arbitration “agreements” pursuant to which one party seeks to obligate another party to arbitrate, rather than litigate, a wide scope of facets of their past, current or future relationship — irrespective of whether those claims arise from a “container contract” in which the arbitration agreement appears.

Adding to the concern is the growing enforceability of “delegation clauses,” by which courts increasingly recognize parties’ intention that arbitrators, not courts, determine whether a dispute is subject to arbitration. Several courts have determined that the mere selection of AAA Commercial Rules is sufficient to divest courts of the power to determine whether a dispute is arbitrable. (Rule 7 of the AAA Commercial Rules provides in part that “[t]he arbitrator shall have the power to rule on his or her jurisdiction, including any objections to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.”)

Prof. Horton cites some arbitration “agreements” that purport to wrest from judicial control all claims of any sort that one party might bring against another:

“All disputes, claims or controversies whether based on any prior, current or future agreement,… event or occurrence, whether individual, joint or class in nature, including contract and tort disputes and any other matter at law or equity… shall be resolved by arbitration.”

“Any dispute between us shall be submitted to arbitration.”

“I agree that any claim dispute or controversy between myself and the Company shall be submitted to and determined exclusively by arbitration.”

“[The obligation to arbitrate] survives the termination of your services with us [and] is indefinite.”

Section 2 of the Federal Arbitration Act restricts the enforceability of arbitration agreements under federal law to “provision[s] in .. a contract… to settle by arbitration a controversy arising out of such contract or transaction….” Prof. Horton raises the question, however, whether such a restriction is jurisdictional in federal courts, or whether it even exists under state arbitration law.

Promising to arbitrate personal injuries arising from a motor vehicle accident that has not yet occurred? Promising to arbitrate future claims of negligence? Barring class claims of injury resulting from unsafe products?The whole thing reminds me of one of my favorite “arbitration agreements:

Good old American Mediation Association — you can count on them!