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South Carolina Arbitration Certification Training South Carolina Arbitration Certification Training 19-63 Tuesday, February 12, 2019 presented by The South Carolina Bar Continuing Legal Education Division http://www.scbar.org/CLE SC Supreme Court Commission on CLE Course No. 192298 1 Table of Contents Agenda .......................................................................................................................................3 Speaker Biographies ................................................................................................................5 Statutes ......................................................................................................................................7 Rules ..........................................................................................................................................21 Sample Reference Order Granting Motions to Compel Arbitration ................................. 165 Sample Arbitration Provision ................................................................................................184 Cases .......................................................................................................................................... 186 Arbitrability, Discovery, Preemption & Implied Power to Conduct Class Action Arbitration, Federal Preemption Cases, continued .......................................................................................................................397 Interstate Commerce, Enforcement of Arbitration as a Consideration Separate from Arbitration Clause & Arbitrability, Arbitrator loses Jurisdiction after Final Award, Confirmation of Award Ethical Considerations for Arbitrators ..................................................................................461 Copyright material included in this book has been approved to reproduce for educational use only. SC Bar-CLE publications and oral programs are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that the SC Bar-CLE does not render any legal, accounting or other professional service. Attorneys using SC Bar-CLE publications or orally conveyed information in dealing with a specific client's or their own legal matters should also research original sources of authority. ©2019 by the South Carolina Bar-Continuing Legal Education Division. All Rights Reserved THIS MATERIAL MAY NOT BE REPRODUCED IN WHOLE OR IN PART WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE CLE DIVISION OF THE SC BAR. TAPING, RECORDING, OR PHOTOGRAPHING OF SC BAR-CLE SEMINARS OR OTHER LIVE, BROADCAST, OR PRE-RECORDED PRESENTATIONS IS PROHIBITED WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE SC BAR - CLE DIVISION. 2 South Carolina Arbitration Certification Training Tuesday, February 12, 2019 This program qualifies for 6.0 MCLE credit hours including up to .75 LEPR credit hour. SC Supreme Commission on CLE Course #: 192298 Presenters: Henry W. Brown, Nexsen Pruet, LLC John A. Massalon, Wills Massalon & Allen LLC Franklin J. Smith, Jr., Richardson Plowden & Robinson, PA Thomas W. Traxler, Carter Smith Merriam Rogers & Traxler, PA 8: 50 a.m. Welcome & Announcements 9 a.m. I. OPENING SESSION 1. Introduction to Arbitration, its premises and statutory foundations, and a discussion of the various organizations supporting and administering arbitration. 2. An analysis of the applicable statutes, state and federal, that support arbitration and judicial recognition of agreements. Identification of the differences between the role of the Court, and the role of the arbiter. Where does the jurisdiction of the Court end and the jurisdiction of the Arbiter begin? Overview of arbitration from the initiation of the proceeding to enrollment of the award as a judgment. Discussion of the statutory requirements that must be met to have an enforceable award. 10 a.m. II. PREHEARING ISSUES This segment considers the time period and activities from the Order or agreement compelling arbitration to the commencement of the hearing: A. Arbitrability. B. Where do the rules of procedure come from and how are they managed? C. Discovery – What can be enforced, what should be allowed? D. Motions – To what extent should prehearing motions be allowed and used? E. Preemption – How are the rights and remedies of the Federal Act and the State Act coordinated? F. Witness identification and exhibit collection. G. Agreements to manage time and insure both sides get a fair allocation. 11 a.m. Break 11:15 a.m. III. DEMONSTRATION AND DISCUSSION of prehearing status/case management conference. 11:45 a.m. Lunch 3 1 p.m. IV. HEARING STAGE The hearing has commenced and how is it managed? The end result is an enforceable award that can be entered as a judgment. How should the proceeding be managed to produce an enforceable result that the parties can accept as fairly created? A. How to manage the absence of the Rules of Evidence? B. What controls should there be on the admission of evidence? C. The use of prehearing discovery or affidavits during the hearing. D. Management of time, and how do you control the presentation of evidence? 2 p.m. V. DEMONSTRATION OF A PORTION OF A HEARING AND DISCUSSION OF THE ISSUES PRESENTED 2:30 p.m. Break 2:45 p.m. VI. POST HEARING AND RETURN TO THE JUDICIAL SYSTEM A. Final vs. Interim Award – What authority does the Arbiter have to change his/her mind? What are the benefits of an interim award? B. Substantive corrections, are they allowed, and under what circumstances? C. Clerical corrections, are they allowed, and under what circumstances? D. When does the Arbiter lose jurisdiction to adjudicate the dispute? E. Appeals 3:45 p.m. Ethical Considerations for Arbitrators 4:30 p.m. Miscellaneous Issues and questions and answers 4:45 p.m. Adjourn 4 South Carolina Arbitration Certification Training SPEAKER BIOGRAPHIES Henry W. Brown Nexsen Pruet, LLC Columbia, SC Henry Brown is a member of Nexsen Pruet's Columbia Office and practices primarily in the areas of construction litigation, commercial litigation, mediation and alternate dispute resolution. While at the University of South Carolina, Mr. Brown served as a member of the editorial board of the South Carolina Law Review. Mr. Brown received his J.D. in 1976 from the University of South Carolina; his B.A. in 1973 from Furman University. Mr. Brown is a member of the South Carolina Bar and Richland County Bar Association. His recognitions include Best Lawyers in America, Construction Law; Litigation – Construction since 2003; South Carolina Super Lawyer in Construction Litigation; 2008, 2015, 2016; certified mediator in State and Federal Courts; South Carolina Bar – Construction Law Section; "Legal Elite of the Midlands" – Construction Law. John A. Massalon Wills Massalon & Allen LLC Charleston, SC An attorney since 1987, John is a partner with Wills, Massalon and Allen in Charleston. The firm was founded in 1999 and emphasizes civil litigation and mediation. His practice includes a focus on commercial litigation pertaining to business disputes, contract matters, land use and preservation issues. John is a certified mediator and regularly serves as a mediator in matters pending in the State and Federal Courts of South Carolina. Prior to his current position, he was a partner with Holmes and Thompson and before that John served as law clerk to US District Judge Falcon B. Hawkins and US Magistrate Judge Robert Carr. John earned a B.A. in History from the College of Charleston in 1984 and a J.D. From the University of South Carolina School of Law in 1987. John is a member of numerous legal associations and is also Past President of the Charleston County Bar Association. Currently, he is the Chair-Elect of the Dispute Resolution Section of the South Carolina Bar, the Vice Chairman of the Preservation Society of Charleston and a member of the Mediation and Meeting Center of Charleston Board of Directors. 5 Franklin J. Smith, Jr. Richardson Plowden & Robinson, PA Columbia, SC Franklin J. Smith, Jr., is a shareholder at Richardson Plowden & Robinson, P.A. His practice primarily focuses on managing risks for entities involved in the construction industry, including construction litigation and arbitration, contract drafting and negotiation, claims resolution and avoidance, design professional malpractice, fidelity/surety law, coverage issues and insurance defense. A substantial part of Mr. Smith's practice involves mediation and arbitration on construction and business-related disputes. Prior to practicing law, Mr. Smith was a design engineer for Wilbur Smith & Associates. Mr. Smith's attended the United States Military Academy, 1975-1977; received his B.S., Civil Engineering, cum laude from Clemson University, 1979; and his J.D. from University of South Carolina School of Law, 1984. Mr. Smith is a Certified Circuit Court Mediator by the S.C. Supreme Court and U.S. District Court; His professional organizations include: Past Chair, Advisory Board for Clemson University, Civil Engineering Department (2013-2014); Past Chair, Construction Section, South Carolina Bar; Panel member, National Panel of Arbitrators, American Arbitration Association; Member, Dispute Avoidance and Resolution Division of the Form on the Construction Industry, American Bar Association; Certified Mediator; American Society of Civil Engineers, Member, South Carolina Defense Trial Attorneys' Association; and Richland County Bar Association. Thomas (Tom) W.
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