Originally From:
Securities Arbitration: Practice and Forms - Looseleaf
Securities Arbitration: Practice and Forms - Electronic
CHAPTER 5 - Preview Page
Compelling or Resisting Arbitration
[1]—General Considerations
This chapter focuses on the role of the judicial process in compelling and resisting arbitration. It also examines the interrelationship between arbitration and judicial proceedings, including:
• the obligation of courts to stay their own proceedings where an arbitrable dispute exists,
• how such a stay may be obtained or resisted,
• when must judicial and arbitral proceedings be conducted simultaneously,
• the availability of provisional judicial remedies in an arbitrable dispute, and
• pre-arbitration judicial procedures.
Generally, judicial intervention is not needed either to begin an arbitration or to oversee its progress. An arbitration begins when one of the parties to an arbitration agreement commences it in compliance with the procedures specified in the agreement or established by the procedural rules of the arbitral body.
Chapter 5 - Compelling or Resisting Arbitration
§ 5.01 Compelling and Resisting Arbitration
[1] General Considerations
[2] Sources of Law
§ 5.02 Substantive and Procedural Law Governing Arbitrability
[1] The Choice of Law Issues
[2] The Federal Arbitration Act
[3] State Arbitration Acts
[a] The Revised Uniform Arbitration Act
[b] New York
[c] California
§ 5.03 Federal Arbitration Act
[1] Preemption of State Laws Denying Enforceability to Arbitration
Agreements
[2] Preservation of State Rules of Decision for Revocability of Contracts
Generally
[3] Volt, Mastrobuono, Allied-Bruce and the Parties’ Intent: Choice of
Federal or State Law
[4] The Issue of Whether Sections 3 and 4 Preempt State Law or Apply
to State Court Proceedings
§ 5.04 Procedure To Compel Arbitration
[1] Federal Court
[a] By Petition
[b] By Motion
[c] Provisional Remedies
[2] Burdens of Pleading and Proof on Issues for the Court
[3] Revised Uniform Arbitration Act and State Statutes
§ 5.05 Jurisdictional Issues in Obtaining an Order To Compel Arbitration
[1] Federal Court
[2] Bankruptcy and the Enforceability of Arbitration Agreements
[3] State Court
§ 5.06 Elements of Petitioner’s Case
[1] Burdens
[2] Issue: Is There a Written Agreement To Arbitrate Covering This
Dispute?
[a] Contract Formation Issues
[i] Unsigned or Forged Arbitration Agreements
[ii] Agreements Signed by a Signatory Lacking the Requisite
Authority
[iii] Non-signatories to the Arbitration Agreement
[b] Agreement by Application of SRO Rules
[i] NASD Rule 3110(f)
[c] Scope of the Agreement
[d] SEC Rule 15c2-2
[el Pre-Contract Disputes
[f] Application to Member Firm-Employee Disputes
[g] Application to Statutory, Tort, and Breach of Fiduciary Duty
Claims
[h] The “Amex Window”
[3] Issue: What Constitutes “Failure, Neglect, or Refusal” To Arbitrate
§ 5.07 Elements of Respondent’s Case
[1] Issue: Is the Arbitration Agreement Revocable as a Matter of Law
or Equity?
[a] Fraud in the Inducement of the Contract as a Whole
[b] Representation that the Arbitration Agreement Is Mandatory
[c] Failure To Read or Be Aware of the Arbitration Agreement
[d] Fiduciary Duty of Broker to Customer
[e] The Permeation Doctrine
[f] Arbitration Agreements as Unconscionable Contracts of
Adhesion
[2] Issue: Is the Right To Arbitrate Barred by the Applicable Statute of
Limitations?
[3] Issue: Is the Party Seeking Arbitration Itself in Default?
[4] Issue: Has the Petitioner Waived Its Right To Arbitrate?
§ 5.08 Is the Dispute Rendered Non-Arbitrable for Public Policy Reasons?
§ 5.09 Stay of Litigation Under Section 3 Where Civil Action Is Already
Pending in State or Federal Court
§ 5.10 Interaction of Sections 3 and 4
§ 5.11 When a Lawsuit Presents Arbitrable and Non-Arbitrable Claims;
The Intertwining Doctrine
[1] History
[2] Current Law
[3] Stays of Litigation
[4] Multiple Parties
§ 5.12 Sanctions Against Losing Party on Motion To Compel Arbitration or
Stay Judicial Proceeding
[1] What Type of Conduct Is Sanctionable?
[2] When Will Attorneys’ Fees Be Awarded as Sanctions?
§ 5.13 Appealability of Grant or Denial of Order Compelling Arbitration
§ 5.14 Discovery in Aid of Proceeding To Compel Arbitration
§ 5.15 Provisional Judicial Relief Pending and in Aid of Arbitration
[1] Tactics for Resisting Provisional Relief Pending Arbitration
[2] Injunctions Against Arbitration Proceedings
W. Reece Bader is a Partner in the Frankfurt office of Orrick and is a member of the Securities Litigation/Regulatory Group. Prior to moving to the Frankfurt office in 2008, Mr. Bader was located in the firm's Paris, Washington, D.C, Silicon Valley, New York and San Francisco offices. He has concentrated his practice in the area of securities and futures litigation since 1970. He has extensive experience, including substantial jury and non-jury trial work in broker-dealer litigation including securities, commodities and public finance. He also handles appellate matters and has represented the Securities Industry Association as amicus curiae in broker-dealer litigation. He has acted as lead defense counsel in complex class actions involving initial public offerings and derivative suits, both on behalf of underwriters, companies and officers and directors. He also regularly represents broker-dealers and individuals in both SEC and SRO enforcement actions. Mr. Bader has argued cases before the D.C., Second, Third, Ninth and Federal Circuits. He serves as an arbitrator for FINRA, NYSE and NFA, and the Center for Public Resources (Distinguished Neutrals Panel). He is a former member of the National Arbitration and Mediation Committee of the NASDR, past Co-Chair of the Securities Litigation Committee, and past Co-Chair of the Alternative Dispute Resolution Committee of the ABA’s Litigation Section. Mr. Bader is a frequent lecturer and panelist for such organizations as the Practising Law Institute, ALI/ABA, FINRA and the Securities Industry and Financial Markets Association.
