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NYSBA Spring 2020 I Vol NYSBA Spring 2020 I Vol. 13 I No. 1 New York Dispute Resolution Lawyer A publication of the Dispute Resolution Section of the New York State Bar Association In This Issue •The Mediation Window: An Arbitration Process Measure to Facilitate Settlement Edna Sussman •The Inauguration of ALI’s Restatement of the U.S. Law of International Commercial and U.S. State-Investor Arbitration: An Interview with George Bermann, Reporter Laura Kaster •Necessary Change: Planning Past Bias Through the ArbitralWomen Diversity ToolkitTM Rekha Rangachari From the NYSBA Book Store Preparing For and Trying the Civil Lawsuit, 2d Ed, 2018 Rev More than 30 of New York State’s leading trial practitioners and other experts reveal the techniques and tactics they have found most effective when trying a civil lawsuit. Expert commentary and numerous practice tips guide you through all aspects of a civil lawsuit, from discovery to appeals. A thorough discussion of pretrial preparation and investigation will aid the attorney in obtaining an advantageous settlement even if the case never goes to trial. Especially helpful are the excerpts from actual trial transcripts, which illustrate the effectiveness of certain lines of questioning. Trial attorneys will benefit by using the book to supplement and reinforce their own methods of practice. The 2018 Revision includes updates to the previous edition, as well as a new chapter on Attorney-Client Privilege. EDITORS-IN-CHIEF Neil A. Goldberg, Esq.; John P. Freedenberg, Esq. PRODUCT INFO AND PRICES Print: 41955 | 2018 | 1,606 pages | 2 vols. | NYSBA Members $185 | Non-Members $235 E-book: 41955E | 2018 | 1,606 pages | 2 vols. | NYSBA Members $185 | Non-Members $235 Order multiple titles to take advantage of our low flat rate shipping charge of $5.95 per order, regardless of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added to your total. Prices do not include applicable sales tax. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB9332N Table of Contents Page Message from the Chair 5 (Theo Cheng) Message from the Co-Editors in Chief 7 (Edna Sussman, Laura A. Kaster and Sherman Kahn) Ethical Compass: Celebration 8 (Elayne E. Greenberg) Arbitration Have the Courts Opened the Section 1782 Door Wider? 11 (Lawrence W. Newman and David Zaslowsky) The Art of Art Authentication and a Global Alternative to Dispute Resolution 14 (Judith B. Prowda) Mediation The Mediation Window: An Arbitration Process Measure to Facilitate Settlement 20 (Edna Sussman) International The New Hague Judgments Convention 23 (David P. Stewart) Good Faith and Relational Contracts in the U.K. 26 (Patrick Green) Reflections on the Principle of Good Faith: Variants, Derivatives and Related Issues in MENA Region Jurisdictions 29 (Mohamed S. Abdel Wahab) Damages and Loss of a Chance or Loss of Opportunity 33 (Herfried Wöss) Removing an Arbitrator for Undue Delay 36 (Douglas F. Harrison) The Inauguration of ALI’s Restatement of the U.S. Law of International Commercial and Investor-State Arbitration: An Interview with George Bermann, Reporter 41 (Laura A. Kaster) Arbitration Decision Making—By the Numbers 44 (William G. Horton) The Impact of Summary Disposition on International Arbitration: A Quantitative Analysis 52 (B. Ted Howes and Allison Stowell) Contrasts in Preparing for International v. Domestic Arbitration 55 (Philip D. O’Neill, Jr) (continued on next page) NYSBA New York Dispute Resolution Lawyer | Spring 2020 | Vol. 13 | No. 1 3 Table of Contents Page ADR Practice Lawyers Should Not Paint Houses: Lessons from The Irishman 58 (Anthony R. Daimsis) Necessary Change: Planning Past Bias Through the ArbitralWomen Diversity ToolkitTM 62 (Rekha Rangachari) Updates from the Institutions The AAA: A History of Working with Federal and State Governments 64 (S. Pierre Paret and Jeffrey T. Zaino) Book Reviews Judith S. Kaye: In Her Own Words, by Judith S. Kaye, edited by Henry M. Greenberg, Luisa M. Kaye, Marilyn Marcus, Albert M. Rosenblatt 67 (Reviewed by Robert S. Smith) Rose QC: The Remarkable Story of Rose Heilbron: Trailblazer and Legal Icon, by Hilary Heilbron 69 (Reviewed by John Fellas) English Arbitration and Mediation in the Long Eighteenth Century, by Derek Roebuck, Francis Boorman and Rhiannon Markless 71 (Reviewed by Karyl Nairn QC) The International Arbitration Rulebook: A Guide to Arbitral Regimes, by Arif Hyder Ali, Jane Wessel, Alexandre de Gramont and Ryan Mellske 75 (Reviewed by Claire Stockford) Case Notes Case Summaries (Alfred G. Feliu) 77 Award Enforcing Trump Campaign NDA Vacated 77 Signatories to Employer Arbitration Program Included in Sex Bias Class Arbitration 77 Delay in Paying Arbitration Fees Ruled Not Material Breach of Contract 77 Partiality Claim Rejected 78 Evident Partiality Claim Rejected Based on Arbitrator’s Failure to Disclose 78 Panel Did Not Exceed Authority in Ordering Divestiture of Interests in LLC 78 Arbitrator Claim Bias Rejected 79 Proposal to Have Arbitrator Rule on Class Action Attorney Fees Rejected 79 Imbalanced Arbitration Panel Not Improper 79 New Arbitration Panel to Rule on Consolidation Question 79 Refusal to Admit Hearsay Evidence Does Not Warrant Vacatur 79 Award Vacated Where Arbitrator Added Contract Term 80 Section Officers 80 Section Committees and Chairs 81 Section Editors 82 4 NYSBA New York Dispute Resolution Lawyer | Spring 2020 | Vol. 13 | No. 1 Message from the Chair The first half of my term has been full of recommendations regarding the implementa- memorable accomplishments by the mem- tion of mediation under the courts’ Presump- bers of the Dispute Resolution Section, and I tive ADR Initiative. The letter was principally continue to be amazed at the wealth of pro- developed by a working group co-chaired by gramming and activity in which our Section Bart Eagle and Gary Shaffer and including Ste- members engage. I am particularly proud of ven Bennett, Leslie Berkoff, Philip Goldstein, all the rich and robust connections we have Adam Halper, Maria Hanford, Joan Hogarth, made between our members (both Downstate Jennifer Lupo, and Susan Salazar. Among and Upstate), with other sections, and with Theo Cheng the subjects we addressed were the need for the courts. As a result of our Membership competent, well-trained mediators; informing Committee’s outreach efforts, the Section now compris- parties about mediation and other relevant court-annexed es over 3,100 members, and I could not be more thrilled mediation programs; the need to ensure that mediators to have such an outpouring of interest and support from are properly compensated; the selection of court-ap- NYSBA members all over the state in the work of the pointed mediators; and the collection of data on program Section. I look forward to having them engage with the outcomes. Most recently, in response to the need to both Section in the coming months. coordinate efforts within the Section and continue serving as a resource to the courts, the Section formed a Presump- We also recently institutionalized our law school tive ADR Initiative Taskforce. Co-chaired by Dan Kolb, a student liaison program by appointing liaisons at eight former Section Chair, and Laura Kaster, the current Chair- New York City area law schools. These dedicated mem- Elect, this taskforce is charged with serving as a resource bers of our Section will serve as ambassadors for the for those who are trying to inform others about the initia- Section at their respective schools, while also providing tive, including establishing a separate Section webpage the Section with much needed feedback and insights to collect pertinent information; coordinating with the into the needs of law students in connection with their different court administrators and judges throughout the anticipated entry into the dispute resolution field. We state; and assisting in putting on programs with local bar will be looking to expand this program statewide in the associations throughout the state about the initiative. coming months. Although the Section has always excelled in produc- Looking back at the past several months, the Sec- ing valuable reports, advocacy papers, statements, and tion’s contributions to the dispute resolution field are other written work-product, it has really shined in its myriad. We began last summer with our Report on programmatic offerings. Here is just a sampling of the Pre-Dispute Agreements to Arbitrate Employments Claims. programs we have sponsored or co-sponsored during the Co-authored by Abigail Pessen and David Singer, last several months: two former Chairs of the Section, the report described the characteristics of employment arbitration and the •The Role of the New York State Courts in International relevant legislation and resolutions; discussed both the Arbitration with Reception Welcoming Justice Scarpulla advantages and disadvantages of arbitrating employ- (International Dispute Resolution Committee) ment claims relative to court litigation; and considered •Three-Day Commercial Arbitration Program for Arbitra- ways to resolve or mitigate the concerns that have been tors and Counsel raised. With the assistance of our Ethical Issues and Ethical Standards Committee, we also submitted two •Introduction to Sports Arbitration (Domestic Arbitration letters to the NYSBA Committee on Standards of At- Committee) torney Conduct (COSAC) in connection with COSAC’s requests for comments on proposed amendments to •Introducing Arbitration for Resolution of Commercial certain of the New York Rules of Professional Conduct. Finance Disputes (Commercial Finance Dispute Resolu- tion Committee) Perhaps most importantly, we began a dialogue with the New York State Courts by sending a letter to •Mediation Choices for Effective Representation and Ad- Chief Judge Janet DiFiore and Chief Administrative vocacy Judge Lawrence K. Marks offering suggestions and NYSBA New York Dispute Resolution Lawyer | Spring 2020 | Vol. 13 | No. 1 5 •Fall Meeting (The Future of ADR: Where Are We Going and free one-year membership in both NYSBA and the Section.
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