arbitration agreements

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Last month saw the end of the second round of the UK Law Commission’s consultation on reform of the Arbitration Act 1996, the legislation which provides the framework for arbitration in England and Wales. We have reported on the current status of the consultation and are watching for the final recommendations.

England is one of the most popular jurisdictions for commercial parties to resolve disputes through arbitration: London and Paris were ranked as the top two preferred cities in the world in 2022. To ensure England’s arbitration regime remains modern and competitive, the Law Commission –  a body responsible for considering and recommending legislative change to the UK government – is currently considering updates to the legal framework of arbitration in England & Wales, the Arbitration Act 1996 (the Act).

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 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.

Website owners who seek to bind visitors to the terms of an arbitration agreement must make those terms “reasonably conspicuous” under the law, and website visitors must “manifest unambiguous assent” to those terms.  That means that the smallest of details – the font and color of the text, the color of the page, the location and appearance of the hyperlinks and the “I agree” button – carry tremendous legal significance.  Those seemingly small design details could make the difference between a dispute being resolved in arbitration, or in litigation.

2021 marked a new chapter for arbitration in Ecuador: after re-joining the International Centre for Settlement of Investment Disputes Convention in June, Ecuadorian Executive Decree No. 165 in August introduced Regulations to add to and improve the existing legal framework for arbitration as it results from the Ecuadorian Arbitration and Mediation Law (“AML”).  The AML, which was enacted in 1997 and amended in 2015, had been criticised for its lack of clarity.

The Federal Circuit’s recent ruling in MaxPower Semiconductor Inc. et al v. Rohm Semiconductor USA, LLC highlights the interplay between the liberal federal policy favoring arbitration agreements and the Patent Trial and Appeal Board’s (“PTAB”) authority as an agency tribunal having a broad role to protect the public interest in…