“Supreme Court Allows Texas Law That Accepts Handgun Permits but not College IDs to Vote.”

The Supreme Court decision effectively boosts efforts by Republican-controlled legislatures to put new ID requirements into effect before November.

Source: Daniel Politi. Slate. October 18, 2014. http://www.slate.com/blogs/the_slatest/2014/10/18/supreme_court_allows_strict_texas_voter_id_law.html.

“For better or worse, the FAA scheme for confirmation and vacatur dates from an earlier era when ‘award’ had a universally understood meaning as the single decision by which an arbitrator would decide the entire dispute. But the courts appear to have accepted that the FAA concept of an ‘award’ must be fluid and should keep pace with the parties’ legitimate expectations about how arbitration will serve their needs. It is to be hoped that future court decisions will incrementally expand the universe of FAA-eligible partial final awards in accordance with this view.”

Source: Marc J. Goldstein. “More Thoughts On Confirmation and Vacatur of Partial Final Awards: Uncertainty In Second Circuit Doctrine.” August 15, 2011. http://arbblog.lexmarc.us/2011/08/more-thoughts-on-confirmation-and-vacatur-of-partial-final-awards-uncertainty-in-second-circuit-doctrine/.

“Those cases have so far arisen at Stage One and have resulted in the court’s referring the parties to arbitration for an initial decision on substantive arbitrability. The reasoning seems unsound, however, especially because of the sweeping deference that would thereafter be called for at Stage Three. Since institutional rules often contain a provision reaffirming the positive Kompetenz‐Kompetenz principle, this means that arbitral tribunals proceeding under such rules will have almost unfettered discretion to decide their own jurisdiction without serious review by a court at Stage Three. Because arbitrators have a financial incentive to find good jurisdiction in close cases, deferring so completely to the tribunal’s decision on jurisdictional issues seems highly questionable.”

Source: John J. Barceló III. Arbitrability Decisions Before, During and After Arbitration. August 2014. pg. 6.  http://ssrn.com/abstract=2483059.


“In the U.S., then, at Stage One substantive arbitrability issues are presumptively for the court to decide and procedural arbitrability issues are presumptively for the arbitral tribunal to decide. These presumptions at Stage One have an important effect in the U.S. on the standard of review applied by a U.S. court at Stage Three when an award is before the court for confirmation or for recognition and enforcement. At Stage Three concerning substantive arbitrability issues (whether the arbitral tribunal has good jurisdiction), a U.S. court should decide the jurisdictional issues de novo, with no deference to the arbitral tribunal — unless of course the normal presumption has been rebutted by the parties’ explicit agreement to delegate this function to the tribunal. In the latter case, an enforcing court should give deference to the prior decision by the arbitral tribunal.”

Source: John J. Barceló III. Arbitrability Decisions Before, During and After Arbitration. August 2014. pg. 5-6.  http://ssrn.com/abstract=2483059.


“‘Substantive arbitrability’ in the U.S. Supreme Court’s usage refers to whether the arbitral tribunal has good jurisdiction to decide the merits of the dispute. The issue concerns which forum is the proper one to decide the dispute — an arbitral tribunal or a court. Thus, substantive arbitrability (whether the arbitral tribunal has good jurisdiction) turns on the existence, validity and scope of the arbitration agreement. ‘Procedural arbitrability’ in the U.S. Supreme Court’s usage, refers to whether the particular claim advanced by the claimant is timely and has been properly handled by the claimant so that it is appropriate for an existing and valid arbitral tribunal to hear this particular claim. Many civil law jurisdictions refer to this issue as one of the ‘admissibility’ of the claim. Hence the ‘procedural’ arbitrability” or “admissibility” issue deals with such questions as whether the claim has been brought too late (after the statute of limitations has run), or too early (because a certain required precondition such as mandatory mediation has not yet occurred), or whether the claimant has waived its right to arbitrate by having sought resolution of its claim in another forum, for example. Thus ‘procedural arbitrability’ or ‘admissibility’ focuses on the claim itself as opposed to which forum, court or tribunal, is the appropriate decision‐maker.”

Source: John J. Barceló III. Arbitrability Decisions Before, During and After Arbitration. August 2014. pg. 2-3.  http://ssrn.com/abstract=2483059.


“The arbitrability issue, understood in this way, can arise at each of the characteristic three stages of the arbitration/litigation process. It can arise at what I have called Stage One, before a national court where one party seeks to litigate the merits of the dispute and the other party petitions to have the dispute sent to arbitration. The arbitrability issue can also arise at Stage Two, when the parties are before the arbitrable tribunal itself. In this scenario the objecting party asks the tribunal to declare itself without jurisdiction to decide the dispute because the essential requirement of a binding and valid arbitration agreement is lacking. Finally, the arbitrability issue can arise at Stage Three, when the party who wins an award asks a national court to enforce it, or the party who loses asks a national court to set it aside or refuse to recognize and enforce it.”

I have attempted all three of these stages and no finder of fact has been able to demonstrate how the two arbitration agreements I signed as a condition of employment are enforceable as a matter of law and public policy when William Morris has engaged in a century-plus year pattern and continuing practice of discriminating against Af. Americans from being hired and/or promoted to Agent, Coordinator and Agent Trainee. Yet, William Morris now has a judgment stating that I owe them $43,707.40 for their attorneys fees because my “bad faith” conduct allegedly delayed the case from being resolved. Republican appointed federal judge P. Kevin Castel issued a Final Order on September 5, 2014 which confirmed the “Final Award” of the fraudulently appointed “arbitrator” Timothy K. Lewis. By doing so, Castel’s decision buttressed the Defendants’ false accusations over the last four years that my all of claims were frivolous, vexatious and made in “bad faith.” Smh.

Source: John J. Barceló III. Arbitrability Decisions Before, During and After Arbitration. August 2014. pg. 2.  http://ssrn.com/abstract=2483059.

“In using the term ‘arbitrability’ in this way, I am following the lead of the U.S. Supreme Court. Some commentators object to the U.S. Supreme Court’s terminology, because in many countries the term ‘arbitrability’ is used in a narrower sense to refer to a particular kind of invalidity of an existing arbitration agreement. In these countries the question of ‘arbitrability’ refers to the issue of whether the underlying merits‐based issue falls into the category of questions “not capable of settlement by arbitration” (to use the terminology of the New York Convention) — in particular because such nonarbitrable issues are so infused with public policy concerns that the country whose law applies allows resolution of such issues only in one of its national courts.”

Source: John J. Barceló III. Arbitrability Decisions Before, During and After Arbitration. August 2014. http://ssrn.com/abstract=2483059.