Commercial Litigation

Subscribe to Commercial Litigation

When a litigant seeks to compel arbitration pursuant to the Federal Arbitration Act (“FAA”), there are two issues that must be resolved: (1) whether there is an agreement to arbitrate; and, if so, (2) whether the dispute at issue falls within the scope of the arbitration agreement.  The Florida Supreme Court’s recent decision in Airbnb, Inc. v. Doe, deals with who decides this second issue—the court or an arbitrator.

In Airbnb, a couple sued Airbnb and Wayne Natt (the property owner) for issues arising out of their stay at Natt’s condominium, which was listed for rent on Airbnb’s website.  Airbnb moved to compel arbitration, arguing that the couple was required to arbitrate their claims because Airbnb’s Terms of Service included an arbitration provision that integrated the AAA Rules.  All parties agreed that the couple was bound by the arbitration agreement—the issue then became whether the court or the arbitrator should decide if the couple’s claims against Airbnb were arbitrable.

In the first two instalments of our series we examined the progress of English law to provide a secure and certain legal infrastructure for cryptoasset investment and management. In particular, we looked at how recent English case law has addressed the following questions:

(1) Are cryptoassets property and (2) Can…

In the first part of this series of articles, we examined the progress of English law to shape and build an infrastructure to support the development of a secure and certain environment for investment in digital assets. We considered how recent English case law has addressed the questions of whether…

The United States Supreme Court recently denied certiorari in Johannsongs-Publishing, Ltd. v. Peermusic Ltd., et al, bringing an end to a copyright infringement suit relating to Josh Groban’s 2003 song You Raise Me Up. Notably, in declining to hear a challenge to the Ninth Circuit’s ruling that Groban’s song did not constitute infringement, the Court left in place a circuit split as to the applicable test for assessing substantial similarity between two works of authorship.

A proposed amendment to Federal Rule of Evidence 702, which governs the admissibility of expert testimony in federal court, could clarify the evidentiary burden on proponents of expert testimony and a court’s role regarding its admissibility. Motions under Rule 702, frequently called Daubert motions after the Supreme Court’s opinion Daubert v. Merrell Dow Pharmaceuticals Inc., are used to limit or otherwise exclude an expert’s testimony to a jury. These motions are often critical to a case’s success, especially in fields that rely heavily on experts such as antitrust, product liability, toxic torts, and environmental litigation. An amendment to Rule 702 currently under consideration looks to clarify the proper evidentiary standard for such motions.

Sir Geoffrey Vos, the Master of the Rolls, wants English law to be at the forefront of developments relating to cryptoassets and smart contracts. In his thought-provoking foreword to the government-backed UK Jurisdictional Taskforce’s (UKJT) Legal Statement on Cryptoassets and Smart Contracts, he explained that English law should aim…

In an 8-1 decision, the United States Supreme Court recently held in Badgerow v. Walters that federal courts may not examine the substance of arbitration disputes to establish federal question jurisdiction under Sections 9 and 10 of the Federal Arbitration Act (the “FAA”).  Not only did this decision resolve a circuit split, it, in essence, shifted more responsibility to state courts to confirm or vacate arbitration awards.

In the recent case of Kyla Shipping Co Ltd v Freight Trading Ltd [2022] EWHC 376 (Comm) the English Commercial Court rejected a claim to litigation privilege over preliminary investigations conducted by a party appointed expert on the basis that litigation in respect of the matter being investigated was not in reasonable prospect at the relevant time. However, the court also held that there was no waiver (or a wider collateral waiver) of privilege in respect of documents relating to how the mispricing claim was discovered (including the expert’s investigations) by the claimant’s solicitor having referred to them in a witness statement.

Litigation privilege applies to confidential documents or communications where at the time the communication or document was created litigation was in reasonable prospect; and it was created for the dominant purpose of the litigation.