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In this Law360 article published on July 23, 2024, I discuss a recent SDNY case, Eletson Holdings, Inc. et al v. Levona Holdings Ltd. (SDNY No. 23-cv-7331 (LJL)), in which the Court took a common sense approach in ordering a remand to the arbitrator based on the “ambiguity exception.” BarakLaw360 – Ambiguity Ruling Highlights Deference To Arbitral Process

A New York City Bar Report: Overview of the current regulatory and institutional landscape with recommendations. 20221301_MediationConfidentialityNYMemo

The use and possession of cannabis remains illegal under federal law. The consequences of this prohibition on the commercial aspects of the industry are significant.  A number of businesses and investors interested in dealing with the cannabis industry have been reluctant to do so given the risk of running afoul of the federal laws and operating in a gray legal and regulatory landscape.  Arbitration fosters growth by offering out of state and foreign stakeholders a safety net to counter the fragmented regulatory structure. Barakat Friedman NYLJ 3.24 Arb for Cannabis

Two sectors come to mind namely financial institutions and technology as ripe to use arbitration but often still reluctant to do so.  In this article, I discuss developments in arbitration procedural rules as they relate to four issues that seem to be the key bases of such reluctance: the “optionality” of confidentiality, speed and expedited procedures, early dismissal opportunities and appealability of an arbitral award. Barakat Friedman NYLJ 10.23 Arb for Tech and FIs

New technologies, such as blockchain and artificial intelligence, are evolving into their own ecosystem of attractive yet complex structures. The legal and regulatory landscape surrounding such technological developments has historically lagged.  In this article, I look at the appeal of arbitration for this growing industry and the potential challenges it presents for arbitrators. I then turn to the legal and regulatory landscape arbitrators will navigate when faced with cases involving new technologies.
Barakat Friedman NYLJ Arbitrating New Tech

Dispute prevention processes are structures designed to prevent conflicts from escalating into disputes and delaying the completion and fulfillment of a contract, which negatively impacts all its stakeholders.  To date, such initiatives have proven to be very effective in construction projects. This article makes the case for scaling the use of dispute prevention processes well beyond the realm of construction.
Hochberg Barakat NYLJ Dispute Prevention

More often than not, when a mediation doesn’t lead to settlement, it is because of one or both parties’ state of mind and seldom due to the subject matter of the dispute itself.  And thus, the truly complex and challenging mediations will often revolve around parties who, for one reason or another, are ill-equipped to settle.
Barakat NYLJ Ill-Equipped Parties in Mediations

Disputes involving parties from different legal jurisdictions and nationalities generally involve complex substantive issues revolving around the merits of the claim and its judicial treatment. Such cases often also require particular attention on a number of levels that go beyond the legal matters at hand.  In mediating such disputes, it is important for the mediator to recognize these subtle matters and ensure they have the tools to address them.
Barakat NYLJ Mediating International Disputes

Whether it’s a worldwide wheat shortage or a spike in energy prices, the current political framework is having broad
and significant repercussions on supply chains, transport and financials generally. Commercial transactions have
suffered directly as economic metrics have changed overnight.
Barakat NYLJ Mediating in Unprecedented Global Landscape

Family business disputes can be some of the most complex cases to mediate.  By their very nature, they involve not just financial matters but also a number of deep emotional issues related to the disputants.  Mediation is almost always the most compelling dispute resolution mechanism for these types of disputes.
Barakat NYLJ Mediating Business Family Disputes

In this article, the author describes traditional ADR mechanisms, namely arbitration and mediation, and the attributes of an effective arbitrator and mediator.  She then explores Med-Arb, a lesser-known mechanism, and discusses dispute avoidance measures, which are gradually gaining traction.
An ADR Primer for Non-ADR Professionals

In two recent cases arising from a single arbitration, the courts of England and France reached opposite results on what law governs the parties’ agreement to arbitrate. These two divergent views led to two significantly different outcomes highlighting the pitfalls of international arbitration: The UK Supreme Court denied enforcement of the arbitration award while the French court upheld it. This article explores the circumstances that led to this awkward outcome and the key takeaways.
The Pitfalls of Conflicting Judicial Outcomes in International Arbitration

This series of articles entitled “Drafting an Arbitration Agreement in 2022” explores the current events and social trends that practitioners should consider when drafting dispute resolution agreements.  The prior articles of the series covered the issue initially from the author’s perspective, and then from the perspective of the drafters and the litigators.

This fourth and final article of the series includes the contributions of four independent arbitrators, the professionals who ultimately are called upon to decide on disputes relating to arbitration agreements: Elisabeth Eljuri, an arbitrator focusing on cross-border energy, infrastructure and M&A disputes, and a former arbitration and transactional partner; Mike Lampert, a commercial arbitrator and mediator, and a former deputy general counsel of a financial institution; Jack Levin, a commercial arbitrator and mediator, and a former litigation partner; and Rebekah Ratliff, a JAMS arbitrator, mediator and neutral analyst focusing on commercial complex insurance and employment matters, and a former insurance professional.
Drafting an Arbitration Agreement in 2022-The Arbitrator’s Perspective

In an article published on Dec. 10, 2021, the first in a series titled “Drafting an Arbitration Agreement in 2022: 2021 Considerations,” the author highlighted matters to consider including in dispute resolution agreements to reflect recent events and current social priorities.  The second article of the series examines the issue from the perspective of practicing transactional attorneys, the lawyers who draft the arbitration provisions that the litigators ultimately have to defend or critique and that we, as arbitrators, must consider and often decide on.

This third article of the series examines the issue of drafting arbitration agreements from the perspective of four prominent litigators, the professionals who are often consulted by their corporate partners to advise on drafting and who ultimately have to defend or critique the provisions.
Drafting an Arbitration Agreement in 2022-The Litigator’s Perspective

In an article published on Dec. 10, 2021, the first in a series titled “Drafting an Arbitration Agreement in 2022: 2021 Considerations,” the author highlighted matters to consider including in dispute resolution agreements to reflect recent events and current social priorities.  This second article of the series examines the issue from the perspective of practicing transactional attorneys, the lawyers who draft the arbitration provisions that the litigators ultimately have to defend or critique and that we, as arbitrators, must consider and often decide on.

The article includes contributions from three corporate lawyers: Jan Joosten, a corporate partner at FisherBroyles, specializing in cross-border transactions; Cathy Rossouw, a partner in Chapman and Cutler’s bankruptcy and restructuring group; and Melissa Sawyer, head of Sullivan & Cromwell’s global M&A practice and co-head of its corporate governance and activism practice.
Drafting an Arbitration Agreement in 2022-The Drafter’s Perspective

The events of the past couple years have forced us all to take a step back and rethink a broad array of matters that were previously on “auto pilot.” Arbitration agreements are no exception. Obviously, the traditional features of a solid arbitration agreement remain unchanged for the most part. That being said, a number of new considerations are now de rigueur as practitioners embark on a drafting exercise that aims to not only secure clarity on the historically important matters but also take into account new realities and social priorities.  This article explores some of the newer matters to be considered when drafting dispute resolution agreements.
Drafting an Arbitration Agreement in 2022: 2021 Considerations

On Sept. 14, 2021, the Dubai government issued a decree that essentially combines the three main arbitration centers that had previously been operating in Dubai, namely the Dubai International Arbitration Center (DIAC), the Emirates Maritime Arbitration Center (EMAC) and the DIFC Arbitration Institution (DAI), which operated a joint venture with the London Court of International Arbitration (LCIA). Per the decree, DIAC remains as the surviving entity while the two other entities are dissolved. While the decree offers some guidance on post combination arbitration process, this restructuring will likely be scrutinized by courts in the enforcement of awards issued by the DIAC going forward. Of particular interest will be court interpretations of Article V(1)d of the New York Convention in cases where parties seek enforcement of arbitration awards issued by the surviving DIAC when their arbitration agreements were entered into prior to the consolidation and provided for arbitration in either EMAC or DAI/DIFC-LCIA.
Testing the Scope of Article V(1)d

By their very nature startups are risky projects. Startup founders can have great ideas but monetizing those ideas requires a specific skill set that often doesn’t reconcile with those of the risk-taker mentality of entrepreneurship. The unfortunate truth is that for every Facebook there are hundreds, if not thousands, of failures. One would think that lack of funding would be the primary factor threatening success. However, according to a study conducted by Harvard Business School professor and author of “Founder’s Dilemma,” Noam Wasserman, 65% of startup failures are the result of disputes amongst cofounders.  This article explores dispute avoidance and resolution mechanisms that can save start-ups from failures.
Dispute Prevention and Resolution Options That Can Save Start-Ups From Failure

The COVID-19 pandemic has wreaked havoc on economies and upended economic metrics. It’s led to some M&A deals dying, others being delayed and many sitting in limbo as parties struggle to close: Deals were agreed on pre-COVID terms based on financials that are, more often than not, simply no longer remotely applicable. With the court system backlogged and parties needing to address transaction matters in a timely fashion, alternative dispute mechanisms such as arbitration and mediation are increasingly becoming attractive options for deal makers.
Covid 19 Case for ADR Provisions in M&A Agreements