Generative Artificial Intelligence (GenAI) in Arbitration: Technology and First Principles
by Andrew Flake
Last week I attended an excellent conference, a gathering of AAA-IDCR arbitrators from across the country, and much of our discussion was AI-focused. And for good reason: the integration of generative artificial intelligence (GenAI) into arbitration, by both arbitrators and advocates, represents more...
Applying Third-Party Beneficiary Exception, 11th Circuit Affirms International Manufacturing Dispute Should Be Arbitrated
by Andrew Flake
For all of its many advantages, arbitration, we might say, is not for everyone -- and in particular, not for those who have not agreed by contract to be there. This is the fundamental principle that arbitration is a creature of contract, that arbitration...
Fourth Circuit Considers Arbitration Waiver, Permitting Claims under Servicemembers Civil Relief Act (SCRA) to be Arbitrated
by Andrew Flake
A new Fourth Circuit opinion reminds us of the analysis required when parties arguing that federal statutory claims should be excluded from arbitration. In Espin v. Citibank, N.A., returning military personnel brought claims under the Servicemembers Civil Relief Act (SCRA), a statute providing credit-related...
The Perils of Proceeding with Unilateral Arbitration: Eleventh Circuit Affirms Vacatur of $3.5 Million Award on Appointment-Related Grounds
by Andrew Flake
Party autonomy in arbitration extends, as a foundational principle, from the beginning to the end of the arbitration process. We have the arbitration clause that gives rise to the arbitration, and we have the tribunal’s award, limned by exactly what the parties have agreed...
Looking forward, looking back: A 2024 Arbitration Roundup
by Andrew Flake
With a 100th birthday coming up for the Federal Arbitration Act, 2025 promises to be eventful year in the arbitration world! But 2024 held its own, and having just crested the New Year, we should pause to look back at a handful of key...
Notes from Berlin: U.S. Hospitality in International Arbitration
by Andrew Flake
I had the opportunity to join colleagues last week at the excellent Berlin Dispute Resolution Days, an annual week of dispute-resolution programming put on by the German Ministry of Justice and the German Arbitration Institute (DIS).
I was...
Georgia Court of Appeals Takes a Pass on “Functus Officio” as State Common Law
by Andrew Flake
A neighbor of mine, who loves to cook, recently showed me what looked like a small handheld blowtorch. He clicked a trigger, firing up a flame like a tiny jet engine, and proudly sharing that he could now melt and caramelize sugar, in order...
No Sovereign Immunity in Nigerian Trade Zone Dispute; D.C. Circuit Affirms New York Convention Applies to Broad Range of Investor-State Arbitral Awards
by Andrew Flake
When does a foreign government, under its commerce-related treaties, move from acting as a sovereign to acting as a business partner in a deal, thereby submitting to arbitration of claims by private parties involved in the deal?
Another Lock Sealed: Second Circuit Applies ZF Automotive to Foreclose Section 1782 Discovery in ICSID Arbitration
by Andrew Flake
In an earlier post on the ZF Automotive decision, I projected that there was some "play in the joints" for arguing over whether certain tribunals would be considered "foreign or international, but that "for now, we know private commercial arbitration — and even...
Georgia Court of Appeals Considers “Conduct-Based Waiver” of the Right to Arbitrate
by Andrew Flake
Clash of the forums: Two parties to a contract, an arbitration clause, and a dispute over the breadth of the clause. When the plaintiff files its complaint in court, intending to move forward with litigation, the defendant counters with a motion to compel arbitration.