International Arbitration Update – 11th Circuit Reverses Course

THE U.S. ELEVENTH CIRCUIT OVERULES ITS DECADES-LONG POSITION ON ANNULMENT OF INTERNATIONAL ARBITRAL AWARDS ISSUED IN THE UNITED STATES

For more than 20 years the U.S. Court of Appeals for the Eleventh Judicial Circuit (with jurisdiction over federal cases originating from Alabama, Florida and Georgia), had sustained that the grounds to seek the annulment of a non-domestic arbitral award rendered in the United States where exclusively those included in Article V of the New York Convention and not the grounds set out in U.S. domestic law, mainly adopted in Chapter 1 of the Federal Arbitration Act (“FAA”). A non-domestic arbitral award is one issued by a panel seated in the United States but arising out of a relationship which is international in nature, thus falling under the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. Now, in Corporación AIC, SA v. Hidroeléctrica Santa Rita S.A., No. 20-13039, 2023 U.S. App. LEXIS 8887 (11th Cir. April 13, 2023), the Court in banc has decided to join the other courts of appeals in extending the grounds for annulment applicable to domestic awards to non-domestic awards. A copy of the decision can be accessed at https://media.ca11.uscourts.gov/opinions/pub/files/202013039.enb.pdf.

The 11th Circuit’s long-standing position on annulment of non-domestic awards is developed in two decisions. In Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434 (11th Cir. 1998), the Court refused to review an arbitral award rendered in Tampa, Florida based on the moving party’s assertion that the award was “arbitrary and capricious”, a non-statutory ground to vacate a domestic arbitral award. Likewise, in Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte International GmbH, 921 F.3d 1291 (11th Cir. 2019), the Court also refused to vacate an award issued in Miami, Florida on grounds that the arbitration panel had “exceeded their powers” within the meaning of 9 U.S.C. § 10(a)(4) of the FAA—a ground not specifically provided by the New York Convention.

The 11th Circuit’s position arising out of these opinions was in conflict with the holding of other courts of appeals. These courts correctly maintain that the grounds for annulment of any arbitral award rendered in the United States, whether falling under the FAA or the New York Convention, are those set out in U.S. domestic law. As such, the 11th Circuit’s rationale had received substantial criticism from scholars, including the American Law Institute in its Restatement of the Law, U.S. Law of Int’l Com. Arbitration and Investor-State Arbitration (ALI Proposed Final Draft 2019). As a matter of fact, many scholars had called out the 11th Circuit for refusing to review its position on the grounds for annulment even after U.S. Supreme Court, in BG Group PLC v. Republic of Argentina, 572 U.S. 25, 44-45, 134 S. Ct. 1198, 1212-13, 188 L. Ed. 2d 220 (2014), had considered the annulment of a non-domestic arbitral award under the FAA.

With Corporación AIC, the 11th Circuit has finally agreed to modify its long-standing criteria and align with other U.S. courts of appeal. This decision equals the annulment of non-domestic arbitral awards to that applicable to domestic awards (both falling under the FAA), a very convenient development for practitioners. From now on, a moving party will be able to seek the annulment of a non-domestic award issued in Florida asserting the existence of any of the grounds set forth in the FAA (for example, that the arbitrators exceeded their powers) or any of the non-statutory grounds developed by U.S. courts (for instance, that an award is arbitrary or capricious). Although most of the grounds of annulment included in the FAA coincide with the reasons not to recognize a foreign arbitral award under the New York Convention, it is generally accepted that the grounds for annulment of the FAA are slightly broader than the grounds for non-enforcement of the New York Convention. 

For practitioners, Corporación AIC is also a welcomed development as it shows a more scientific approach by the 11th Circuit in resolving international arbitration cases. Previous opinions by the 11th Circuit on arbitration issues may have lacked a deep analysis of fundamental concepts. Only two years ago, the U.S. Supreme Court reversed a decision of the 11th Circuit (Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1645 (2020)) that was clearly mistaken. In Corporación AIC it can be observed a laudable effort by the Court to establish clear and sounds principles applicable to the annulment of international awards rendered in the United States.

Should you have any questions about the contents of this note, please contact Daniel E. Vielleville at dev@assoulineberlowe.com or (305) 567-5576.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd Street, Suite 3105

Miami, Florida 33131

Main: 305.567.5576

Fax: 305.567.69343

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment, Creditors’ Rights & Bankruptcy, Business Litigation, Corporate & Finance, Real Estate, International Law, Trust & Estates, Probate and Guardianship

Employment Update: Forced Arbitration in Sexual Harassment Cases

On February 10, 2022, the U.S. Senate passed H.R. 4445, entitled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The purpose of this Act is to outlaw forced arbitration clauses and joint-action waivers in employment contracts for sexual harassment and assault cases.

The Act, which is soon expected to be signed by President Biden, renders mandatory arbitration clauses and joint-action waivers for these type of claims unenforceable.  The Act is silent as to whether these provisions will be enforced in similar cases involving, for example, claims of racial harassment, age discrimination, etc.

The Act expressly applies “to any dispute or claim that arises or accrues on or after the date of enactment.”  Whether a claim filed after enactment of the Act based on conduct that occurred prior to enactment will be exempt from arbitration and class action remains to be seen, but plaintiffs’ attorneys will surely favor of such a reading. 

Practically speaking, contracts that contain mandatory arbitration or joint-action waivers for sexual assault or harassment should be modified to exempt these claims, though other similar claims may still be subject to mandatory arbitration, class and collective action waivers, etc.

For your review, the relevant text of the Act is as follows:

§ 402. No validity or enforceability

(a) IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

(b) DETERMINATION OF APPLICABILITY.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.

For any questions, please feel free to contact Labor and Employment Law Attorneys Ellen Leibovitch and Giancarlo Cellini at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2^nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

New Employment Law Developments

Photo by rawpixel.com on Pexels.com

 

For all the media time devoted to President Trump, many of you may have missed some actual law-making going on behind the scenes.  Let me take a moment to update you as to three developments which should be of interest to employers:

 1-9 Audits on the Rise

Immigration and Customs Enforcement (ICE) has announced plans to increase I-9 audits this summer and focus on punishing employers who hire illegal workers and deporting of workers in the country illegally.  Make no mistake – the punishment to be imposed by ICE can include civil penalties and/or criminal charges.

 Accordingly, now is the time to make sure your I-9’s are in order and, if they need to be updated because the form of identification on file has expired or will be expiring soon, update them now.  Not all employers are enrolled in E-Verify, but many in the know believe the aim of ICE’s aggressive tactics is to increase E-Verify enrollment.

 While the audits do not include independent contractors, classifying workers as contractors when they should properly be classified as employees may expose employers to headaches beyond ICE: namely the Department of Labor and the Internal Revenue Service.

 New Rules for Tips and Tip Pools

As part of the 2018 tax bill, Congress amended the Fair Labor Standards Act (FLSA) in regards to tip pools and tip ownership.  First, under the new rules, employers are prohibited from keeping tips received by their employees, regardless whether the employer takes a tip credit. Second, the new rules state that employers who pay the full minimum wage (currently $8.25/hour in Florida) can allow employees who are not customarily and regularly tipped – like cooks and dishwashers – to participate in tip pools.  Note that tip pools must still exclude supervisors, managers and owners.

 Many employers do not pay tipped employees the minimum wage and instead take a “tip credit,” recognizing that the employee’s tips will bring the hourly rate up to and over the minimum wage.  For employers who wish to include back of the house workers in the tip pool, paying the minimum wage rather than the tip credit is a way to accomplish this goal.

 Arbitration Can Eliminate Class/Collective Actions

In the case of Epic Systems Corp. v. Lewis , the U.S. Supreme Court upheld an arbitration clause in an employment agreement which precluded the employee from bringing a class action against the employer.  The 5-4 decision authored by Justice Gorsuch makes clear that employer-favored arbitration agreements can be used to eliminate the risk of costly class and collective actions.

 Opponents of such agreements argued that arbitration could not trump employees’ rights to join together to seek common relief.  Based on the holding in Epic Systems, arbitration agreements can be used to eliminate an employee’s right to participate in a class or collective action and require arbitration of the employee’s individual claims only.

 Those of you who require your employees submit to arbitration to resolve any employment-related dispute should have counsel review the arbitration agreement to ensure that it precludes the employee from participating in a class or collective action.  Those of you who do not have arbitration agreements with your employees – either as a stand-alone agreement or as a clause in an employment contract – may want to consider putting this type of agreement in place.

 As always, if you have any questions about the foregoing or other employment-related matters, please feel free to contact me.  Happy Memorial Day to all!

Board Certified Labor and Employment Partner Ellen Leibovitch

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Student Becomes the Master: UM Law Wins International Moot Arbitration Competition in Frankfurt

left to right: Joseph Matthews, L Andrew Riccio, Benjamin Keime, Abirami Ananthasingam

The University of Miami School of Law is already one of the top law schools in the State of Florida.  On March 14 ,2014, Coral Gables, Florida, and the entire UM community, began celebrating it’s first place finish at the 7th Frankfurt Investment Arbitration moot competition.

The three UM law school students representing UM’s team, Joseph Matthews (3L), Benjamin Keime (2L),  and Abirami Ananthasingam (3L), began preparing for the international competition in August 2013.  The competition was held during March 10th through the 15th 2014 at the University of Frankfurt in Germany.

The competition was against 59 other international law school teams.  The UM team was lead by Assouline & Berlowe attorney, and UM alumni, L Andrew Riccio (JD 2011).

The substance of this year’s moot court competition was entitled “The Perfumes of Arabia”, based in 12th century Yemen, relating to a new customs regime on merchants in Aden, the Yemeni port.  Fictional claims were brought under a multilateral investment treaty comprised of countries of the medieval Ayyubid Empire.

In describing the substance of the moot court problem, “Coach” Riccio stated that “this year’s was the most complex and interesting of them all.” He was especially impressed by the caliber of students at the competition.  Given the complexity of the problem, students invested considerable time preparing their arguments.

The moot court team competed against law schools from Europe, the Caribbean, and Asia, and ultimately tied for first place with the team from Sciences Po (Paris).  The winners, both the UM and Sciences Po teams, will receive a three week placement at the Hague Academy of International Law.

The distinguished tribunal in the final round consisted of Charles Brower, Abby Cohen-Smutney, and Judge Awn Al-Khasaweh.  The University of Miami is the only to twice make it to the final round of the competition, and twice win the competition.

This victory was extra special for Attorney Riccio, who participated on the team as a law student participant in 2011 , when UM won the competition for the first time.  After this win, UM is the first repeat winner of the competition.  When Riccio competed in 2011, it was under the guidance of his mentor, Assouline & Berlowe International Arbitration Partner Daniel Vielleville.  Now, Riccio has taken the reins of UM’s team and as the coach, the student has proved himself as the master of UM’s second winning team.

Assouline & Berlowe was founded by University of Miami School of Law graduates Eric N. Assouline (JD 1996) and Peter E. Berlowe (JD 1998).  Since that time, several other UM law graduates have joined the firm, including Sheri Alter (JD 1996), Meredith Gussin (JD 2001), as well as current partners Loren D. Pearson (JD 1996) and Daniel E. Vielleville (JD 2003).

For more information about the competition, or to discuss any business issues, please contact Mr. Riccio.

L. Andrew Riccio, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: ASR@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

11th Circuit Denies Bank’s Argument to Compel Arbitration

Michael Dasher, a checking account customer, sued RBC Bank (Bank) in the District Court for the Southern District of Florida alleging that the Bank, rather than depleting debit card purchases chronologically, reordered them at the end of each day drawing funds for larger purchases before smaller ones. The alleged result: larger purchases were accounted for first; leaving smaller and more numerous purchases (each) subject to a $35 overdraft fee each.

Dasher’s 2008 Account Agreement (typically signed when opening an account and governing the bank–customer relationship) included a provision subjecting overdraft disputes to arbitration. The Bank asked the District Court to halt the litigation and compel arbitration. The Court, relying on earlier precedent, denied the Bank’s motion; and voided the provision as it effectively impaired Dasher’s ability to vindicate his rights in Court. The Bank appealed to the 11^th Circuit Court of Appeals.

Before the appeal was heard, the U.S. Supreme Court decided AT&T Mobility v. Vincent Concepcion et ux., 131 S. Ct. 1740 (2011). The decision is significant in (1) confirming the liberal federal policy of the Federal Arbitration Act (9 U.S.C. 2) favoring arbitration; and (2) declaring that certain class-wide arbitration agreements are enforceable, notwithstanding states law to the contrary. Recognizing that the two factors (if considered earlier by the District Court) could have changed the outcome, both parties successfully had the Appeals Court remand the case to the trial court for reconsideration. Parenthetically, Dasher’s action is part of a larger case now pending in the District Court: the Checking Account Overdraft Multidistrict Litigation.

In 2012, PNC Financial Group, Inc. (PNC) acquired RBC Bank and Dasher’s account. Before completing the acquisition, PNC issued a new Account Agreement that neither contained an arbitration clause nor mentioned arbitration. The Bank renewed its motion to compel arbitration. It argued that the earlier RBC Account Agreement controlled. Dasher challenged; arguing that the PNC Account Agreement (which was silent on arbitration) superseded the earlier Account Agreement. The District Court agreed with the later position; and the Bank Appealed.

In its February 10, 2014 decision, the 11^th Circuit Court of Appeals upheld the District Court’s decision that arbitration provisions do not automatically survive in a superseding contract unless specifically adopted in the new contract. Dasher v. RBC Bank, Case No.: 13-10257 (11th Cir. 2014).  Neither silence nor the courts’ policy favoring arbitration will help save the provisions.

As the Bank saw it, the District Court made five reversible errors:

1. The Federal Arbitration Act created a presumption of arbitration that the District Court failed to apply;
2. Contrary to the district court’s holding, the PNC Agreement’s silence on arbitration cannot invalidate the RBC Agreement’s arbitration provision;
3. The district court improperly ignored the termination clause in the RBC agreement;
4. The district court improperly applied the PNC Agreement retroactively to disputes that arose while the RBC Agreement was still in effect; and
5. The district court relied upon provisions in the RBC Agreement to support its analysis, undermining its holding that the RBC Agreement was entirely superseded and proving that the arbitration clause was “singled out” for disfavored treatment in violation of the FAA.

The Appeals Court, in a 33 page opinion, was not persuaded.

1. Although the FAA does create a presumption in favor of arbitration, the presumption applies in the case of ambiguity. Where it is not clear if the parties did indeed agree to commit themselves to arbitration as their exclusive dispute resolution process. Here, both contracts are valid agreements. The earlier RBC Account Agreement contains an arbitration clause the later PNC Account Agreement.
2. The District Court’s holding was proper. Under state law, the PNC Account Agreement superseded the RBC Account Agreement in its entirety. The provisions of the latter agreement did not survive; and, specifically, the arbitration clause was ineffective.

The Dasher decision is in agreement with other Second and Sixth Circuit decisions.

For more information about arbitration, contact:

Carl H. Perdue, JD, LLM

Senior Counsel and Partner

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Partner Carl H. Perdue to Judge LL.M. International Commercial Arbitration Moot Competition

Carl H. Perdue, Assouline & Berlowe, P.A. Senior Counsel and Partner, will serve as an arbitrator judge at the Center of International Commercial Arbitration’s upcoming Second LL.M. International Commercial Arbitration Moot Competition.

Mr. Perdue, an arbitrator judge at the Center’s Inaugural Program, will lend his support and expertise to LL.M. Moot Competition. The Competition provides post-graduate LL.M. students with the opportunity to develop their arbitration skills in an environment that closely resembles current International Commercial Arbitration.

This year’s Competition will bring together 17 teams from the following institutions:

• Pepperdine University School of Law
• University of Missouri – Kansas City School of Law
• University of California, Berkeley School of Law; University of Pennsylvania Law School
• University of Denver Sturm College of Law; Columbia University
• Georgetown University Law Center
• Benjamin N. Cardozo School of Law
• Pennsylvania State University Dickinson School of Law
• American University Washington College of Law

The Competition will be held on Thursday and Friday, March 13 and 14, 2014 at the Washington, D.C. Center at American University Washington College of Law.

For more information contact:

Carl H. Perdue, JD, LLM

Senior Counsel and Partner

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Resolving Investor and Broker/Dealer Disputes

Securities disputes are traumatic. The loss of investment capital can be devastating whether one is a sophisticated investor in search of capital appreciation or a retail customer looking for a safe haven for retirement funds.

The subprime real estate meltdown, an accompanying sharp decline in securities valuations, and a host of well-publicized, questionable (in some cases illegal) business practices in the financial markets resulted in systemic economic dislocations. The so-called “Great Recession” brought into sharp focus individual investor risk of loss as well as a sharp increase in customer and broker/dealer disputes.

The Financial Industry Regulatory Authority (FINRA), the successor to the National Association of Securities Dealers, Inc.’s (NASD), is the non-governmental, self-regulatory organization regulating New York Stock Exchange brokerage firms and the exchange markets. FINRA monitors 6 billion share trades a day. With 20 offices across the United States and 3,400 employees, the Authority writes and enforces rules governing more than 4,145 securities firms and 636,290 brokers.

FINRA’s dispute resolution forum is the largest in the country for the securities industry, handling nearly 100 percent of securities-related arbitrations and mediations from more than 70 hearing locations—including at least one in all 50 states, London and Puerto Rico.  Its District 7 Office in Boca Raton covers Florida, Puerto Rico, Panama, and the Virgin Islands.

In 2012, FINRA referred 692 fraud cases for prosecution, and levied $102 million in fines and restitution against fraudulent traders.  Through November 2013

4,181 arbitration cases were resolved (18% after hearing; 5% after document review; 52% by parties’ settlement; and 10% in mediation) and 3,342 new cases were filed. During the same period, 513 mediation cases were closed (80% of which settled) 451 new disputes filed.

The following Tables reflect FINRA’s latest dispute resolution statistics.

Arbitration Cases Served by Controversy Involved

Type of Controversy1 2009 2010 2011 2012 November 2013 Margin Calls 128 83 80 68 46 Churning 306 270 236 245 219 Unauthorized Trading 478 397 288 313 240 Failure to Supervise 2,691 2,372 2,007 1,657 1,364 Negligence 3,405 2,698 2,249 1,941 1,570 Omission of Facts 2,453 1,941 1,603 1,355 1,128 Breach of Contract 2,802 2,184 1,904 1,573 1,300 Breach of Fiduciary Duty 4,206 3,162 2,589 2,216 1,728 Unsuitability 2,473 1,974 1,619 1,354 1,144 Misrepresentation 3,408 2,601 2,102 1,769 1,398 1 Each case can be coded to contain multiple controversy types.   Therefore the columns in this table cannot be totaled to determine the number   of cases served in a year.

Security Types Involved in Arbitration Cases

Type of Security1	2009	2010	2011	2012	November   2013
Corporate Bonds	373	239	179	124	79
Certificates of Deposit	71	41	31	31	30
Mutual Funds	1,556	863	652	392	289
Options	275	161	161	151	106
Common Stock	1,367	862	838	736	511
Limited Partnerships	73	80	104	70	79
Annuities	300	208	172	147	113
Preferred Stock	481	232	197	112	81
Variable Annuities	300	279	212	220	165
Derivative Securities	607	228	54	8	0
Auction Rate Securities	276	149	80	58	27

1 Each case can be coded to contain multiple security types. Therefore the columns in this table cannot be totaled to determine the number of cases served in a year.

As an alternative to litigation, FINRA arbitration, generally confidential, proceeds with the convening of a panel comprised of one or three arbitrators selected by the parties. Each party, either represented by counsel or proceeding pro se, submits written pleadings to the arbitrators setting his or her claim or defense. After considering the pleadings, the panel will consider any documentary evidence and under oath testimony at a formal hearing. Thereafter, the arbitrator or arbitrators, as the case may be, will issue a formal award that is binding on the parties. The prevailing party can then submit the award to the appropriate court for enforcement. And, unless challenged on very limited grounds, the court will not overturn the award.

Arbitration cases are eligible to be heard in FINRA’s forum if the following criteria are met:

• For disputes with investors:
  • The cases involve an investor and an individual or entity registered with FINRA, such as cases between investors and brokers, between investors and brokerage firms, and between investors and brokers and brokerage firms; and
  • The claim is filed within 6 years from the time the events giving rise to the dispute occurred.

• For disputes involving industry parties only:
  • The cases involve an individual or entity registered with FINRA, such as cases between brokerage firms, between brokers, and between or among brokerage firms and brokers; and
  • The claim is filed within 6 years from the time the events giving rise to the dispute occurred.

An investor must arbitrate at FINRA if:

• The arbitration is required by written agreement;
• The dispute is with a member of FINRA, which could be a broker and/or brokerage firm; and
• The dispute involves the securities business of the broker and/or brokerage firm.

A broker or a brokerage firm must arbitrate at FINRA if:

• The dispute arises out of the securities business activities of a broker and/or a brokerage firm; and
• The dispute is between or among the following members of FINRA: brokerage firms, brokerage firms and brokers, or brokers.

If an investor requests arbitration, a broker or a brokerage firm must arbitrate at FINRA.

Either during or as an alternative process and by mutual agreement, the parties may submit their dispute to mediation. In such case, FINRA staff facilitates the mediation process and provides a roster of qualified mediators from which a mediator is selected to facilitate the parties’ discussions towards a mutually agreeable resolution. Mediation is confidential and non-binding until resolution.

For more information, please visit www.finra.org and contact:

Carl H. Perdue

Senior Counsel and Partner

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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ILS’s International Law Quartely – Russia and CIS

Assouline & Berlowe Partner Daniel A. Vielleville authored an article in ILS’s International Law Quarterly, a special note on Russia and Commonwealth of Independent States (CIS).  His article, entitled “Colombia adopts arbitration statute based on the UNCITRAL Model Law” can be found on page 11 of the publication.

Mr. Vielleville discusses the advantages and disadvantages of Law 1563/2012, in force since October 2012, that regulates domestic and international arbitration in Colombia.  The most welcome feature of the new statute is the adoption of the 1985 UNCITRAL Model Arbitration Law, with its 2006 amendments.  For example, the new statute:

1. recognizes both institutional and ad hoc arbitration;
2. acknowledges the power of arbitrators to issue interim or conservatory measures;
3. provides clear definitions of what constitutes an arbitration agreement, the principle of separability of the arbitration agreement and the power of the arbitrators to decide on their own competence (kompetenz–kompetenz), including the negative effect of such authority.

For more analysis of the new statute, view the ILS International Law Quarterly article, linked below.

Colombia adopts arbitration statute based on the UNCITRAL Model Law

Mr. Vielleville, a dual Venezuelan-U.S. attorney, is a partner in the Miami office of Assouline & Berlowe.  He heads the Latin America Practice and the International Business Practice.  For more information about Mr. Vielleville’s international practice, please contact him using the contact information below.

Latin America Practice and the International Business Practice

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: dev@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Arbitration of Bankruptcy Issues

Bankruptcy Claims May be Arbitrated

A Compelling Arbitration Case: Court Grants Motion to Compel Arbitration for Both Bankruptcy and Non-Bankruptcy Issues

Laura Napoli on January 3, 2013 ·
Weil Gotshal & Manges, LLP Blog
In MicroBilt Corp. v. Fidelity National Information Services, Inc. (In re MicroBilt Corp.), No. 12-01167, 2012 WL 6137610 (Bankr. D.N.J. Dec. 11, 2012), the United States Bankruptcy Court for the District of New Jersey recently decided that certain claims, including claims relating to violation of the automatic stay, were subject to binding arbitration.

Background

MicroBilt provides online access to credit bureau data to small and medium sized businesses. MicroBilt had a longstanding contractual arrangement with Chex Systems, Inc., pursuant to which Chex sold financial information to MicroBilt, which then resold the information to credit unions, payday lenders, and car dealerships. In 2009, Chex and MicroBilt entered into a settlement to resolve a dispute that had arisen under the contract. As part of the settlement, the parties entered into a Resale Agreement.

Meanwhile, CL Verify, another credit information supplier, entered into a Data Reseller Agreement (“DRA”) with Certegy Ltd., a UK-based company. The DRA provided that Certegy would supply certain consumer credit card information exclusively to CL Verify, which CL Verify could then resell to its end users. In return, CL Verify agreed to pricing terms that were favorable to Certegy. Also around this time, CL Verify’s UK subsidiary, CLV UK, entered into an Independent Sales Organization Agreement (“ISO”) with Certegy, whereby Certegy agreed to market and develop CLV UK’s product within the United Kingdom. MicroBilt acquired CL Verify in 2010, and CL Verify assigned its assets, including the DRA and the ISO, to MicroBilt.

By late 2010, the relationship between Chex and MicroBilt had deteriorated again, and Chex asserted a series of defaults under the Resale Agreement. In March 2011, MicroBilt and CL Verify filed for chapter 11 relief. After the filings, Chex and its parent, Fidelity National Information Systems, Inc. (“FIS”), directed Certegy to end its support for CLV UK under the ISO. MicroBilt and CL Verify then commenced an adversary proceeding, alleging that FIS and Chex tortiously interfered with its existing and prospective contractual relationships. MicroBilt also alleged that FIS and Chex had violated the automatic stay provisions of the Bankruptcy Code through their postpetition actions. In response, Chex and Certegy sought to compel arbitration of the dispute, pointing to specific provisions in the Resale Agreement and the ISO, which required that any dispute arising out, of or relating to, the agreements be determined through alternative dispute resolution.

The Tortious Interference Claims

The court first focused on the tortious interference claims and found that all of those claims fell within the context of the arbitration clauses in the Resale Agreement, the ISO, and the DRA. Because the Federal Arbitration Act requires courts to compel arbitration when an agreement requires it, the court determined that it should defer to the arbitration provisions in the contracts and enforce arbitration.

The Stay Violation Claims

Turning next to the stay violation claims, the court found that, for these claims, the language of the underlying agreements was not helpful in determining whether the parties intended to include claims arising under the Bankruptcy Code in the arbitration provisions. Despite this, the court concluded that the mere fact that claims may arise under the Bankruptcy Code does not preclude them from being arbitrated. Instead, the court focused its inquiry into whether arbitration of the claims would interfere with or affect the distribution of the bankruptcy estate.

An examination of the facts led the court to conclude that arbitration would not result in interference with the estate because the disputed conduct (tortious interference with contract) did not allow Chex and FIS either to acquire possession or control over the debtors’ assets or to advance their own interests over those of other creditors. As evidence of this, the court noted that it had recently confirmed the debtors’ plan of reorganization, which provided for a 100% distribution to unsecured creditors and postpetition interest, as well as the assumption of all executory contracts. Finding no interference, the court noted that arbitration of the stay violation claims would not be inconsistent with the Bankruptcy Code’s goals and objectives, the bankruptcy court’s authority or the centralization of bankruptcy disputes. The court also stated that the stay violation claims were factually and legally linked with the tortious interference claims, lending additional support for the determination that the stay violation claims should be resolved with the tortious interference claims in arbitration.

The court’s decision in this case echoes the strong Third Circuit policy of resolving disputes via arbitration. Yet, not all courts may agree with this policy. For example, earlier this year we blogged about a decision where the Southern District of New York affirmed a holding of the bankruptcy court that concluded that the interests of the Bankruptcy Code outweighed those of the Federal Arbitration Act, at least when it comes to determinations regarding property of the estate. As courts continue to wrestle with the role arbitration clauses should play in bankruptcy issues, it will be interesting to see how the line will be drawn between the competing policy interests of the Bankruptcy Code and the Federal Arbitration Act.

There is support for this position in Florida bankruptcy courts. But there is little case law on the subject.
If you need assistance discussing business issues involving either arbitration or bankruptcy matters, call us.

ERIC N. ASSOULINE, ESQ.

Eric N. Assouline

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