Originally from:
AAA Yearbook on Arbitration and the Law - 24th Edition - Hardcover
AAA Yearbook on Arbitration and the Law - 24th Edition - Electronic
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CHAPTER 5
PRELIMINARY PROCEEDINGS
5.01 Interim Relief by the Court
Weingarten Realty Investors v. Miller, 661 F.3d 904 (5th Cir.
2011)
One is not entitled to an automatic stay the proceedings in a lower
court during the pendency of an appeal from an order to compel
arbitration.
A lender, Weingarten Realty Investors (hereinafter “WRI”), brought
an action against the guarantor of a loan, Steward A. Miller (hereinafter
“Miller”). Miller, in response, moved to compel arbitration and stay the
proceedings. The district court denied Miller’s motion and Miller now
appeals. On appeal, Miller contests that the district court (1) erred in not
staying proceedings pending his appeal, (2) erred in finding that the
guarantee was not subject to arbitration, and (3) erred in finding that
WRI was not equitably estopped from avoiding arbitration.
First, noting that there is a circuit split on the issue, the court found
that one is not entitled to an automatic stay when appealing an order to
compel arbitration. The court reasoned that because answering the
question of arbitrability does not determine the merits of the case, the
lower court is free to continue proceedings on the merits of the case
during the pendency of appeal. The question of arbitrability is thus
collateral to the merits. Nevertheless, even if a party is not entitled to an
automatic stay, the decision to stay the proceedings is still at the
discretion of the court. Turning to the issue of whether or not Miller was
entitled to a discretionary stay, the court found that Miller was not
eligible for a stay because he failed to show that success was likely on
appeal or that the balance of equities tipped in his favor.
Second, the loan agreement between WRI and the joint venture
contained an arbitration clause; however, the guaranty did not contain
any such clause. Nevertheless, Miller argued that the guarantee was a
CHAPTER 5 PRELIMINARY PROCEEDINGS
5.01 Interim Relief by the Court
- Weingarten Realty Investors v. Miller, 661 F.3d 904 (5th Cir. 2011)
- Next Step Med. Co. v. Johnson & Johnson Int'l, 2010 WL 3386569 (1st Cir. 2010)
- Toyo Tire Holdings of Am. v. Continental Tire North America, 609 F.3d 975 (9th Cir. 2010)
- Spinks v. Automation Personnel Serv., Inc., 2010 WL 142024 (Ala. 2010)
5.02 Arbitral Subpoenas and Pre-hearing Discovery
- Life Receivables Trust v. Syndicate 102 at Lloyd's of London, 549 F.3d 210 (2nd Cir. 2008)
5.03 Arbitral Stays of Parallel Litigation and Judicial Stays of Arbitral Proceedings
- PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10 (1st Cir. 2010)
5.04 Judicial Stay of Litigation Pending Arbitration
- Louis Berger Group Inc. v. State Bank of India, 802 F.Supp.2d 482 (S.D.N.Y. 2011).
STEPHEN K. HUBER is Professor Emeritus at the University of Houston Law Center, and has served as a visiting professor at the University of Texas, Rice University (Political Science), Pepperdine Law School (Dispute Resolution Program), and the University of East Africa (Dar es Salaam, Tanzania). Mr. Huber is a member of the State Bar of Texas, and the editor of Alternative Resolutions, the quarterly journal of the Dispute Resolution Section. He is the author of numerous publications relating to arbitration.
BEN H. SHEPPARD, JR. is a Distinguished Lecturer and Director of the A.A. White Dispute Resolution Center at the University of Houston Law Center. From 1969 through 2005 he practiced at Vinson & Elkins L.L.P. where he was a Partner and Co-Chair of the firm's international dispute resolution practice. He was chair of AAA/ICDR task force that promulgated the 2006 amendment to the ICDR International Arbitration Rules that established a pre-arbitral emergency arbitrator procedure. He was the author of the report and recommendation to the ABA House of Delegates in support of the 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. He chaired one of the two working groups that promulgated the CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration. He is a past chair of the Disputes Division of the ABA Section of International Law and for five years served as editor-in-chief of The International Arbitration News. He is a member of the American Law Institute and a Fellow of the College of Commercial Arbitrators.
