Originally from Securities Arbitration: Practice and Forms - Third Edition

SYNOPSIS

§ 5.01 Compelling and Resisting Arbitration
[1] General Considerations
[2] Sources of Law

§ 5.02 Substantive and Procedural Law Governing Arbitrability
[1] The Choice-of-Law Issues
[2] The Federal Arbitration Act
[3] State Arbitration Acts
[a] The Revised Uniform Arbitration Act
[b] New York
[c] California
[c] Florida

§ 5.03 Federal Arbitration Act
[1] Preemption of State Laws Denying Enforceability to Arbitration Agreements
[2] Preservation of State Rules of Decision for Revocability of Contracts Generally
[3] Volt, Mastrobuono, Allied-Bruce, and the Parties’ Intent: Choice of Federal or State Law
[4] The Issue of Whether Sections 3 and 4 Preempt State Law or Apply to State Court Proceedings 

§ 5.04 Procedure to Compel Arbitration
[1] Federal Court
[a] By Petition
[b] By Motion
[c] Provisional Remedies
[2] Burdens of Pleading and Proof on Issues for the Court
[3] Revised Uniform Arbitration Act and State Statutes

§ 5.05 Jurisdictional Issues in Obtaining an Order to Compel Arbitration
[1] Federal Court
[2] Enforceability of Arbitration Agreements in Bankruptcy and Receiverships
[a] Bankruptcy Proceedings
[b] Receiverships
[3] State Court

§ 5.06 Elements of Petitioner’s Case
[1] Burdens
[2] Issue: Is There a Written Agreement to Arbitrate Covering this Dispute?
[a] Contract Formation Issues
[i] Unsigned or Forged Arbitration Agreements
[ii] Agreements Signed by a Signatory Lacking the Requisite Authority
[iii] Non-signatories to the Arbitration Agreement
[b] Agreement by Application of FINRA Rule 3110(f)
[c] Scope of the Agreement
[d] Agreements to Arbitrate Pursuant to Form U4. 
[e] SEC Rule 15c2-2
[f] Pre-Contract Disputes
[g] Application to Member Firm-Employee Disputes
[h] Application to Statutory, Tort, and Breach of Fiduciary Duty Claims
[i] The “Amex Window”
[3] Issue: What Constitutes “Failure, Neglect, or Refusal” to Arbitrate

§ 5.07 Elements of Respondent’s Case
[1] Issue: Is the Arbitration Agreement Revocable as a Matter of Law or Equity?
[a] Fraud in the Inducement of the Contract as a Whole
[b] Representation that the Arbitration Agreement Is Mandatory
[c] Failure To Read or Be Aware of the Arbitration Agreement
[d] Fiduciary Duty of Broker to Customer
[e] The Permeation Doctrine
[f] Arbitration Agreements as Unconscionable Contracts of Adhesion
[2] Issue: Is the Right to Arbitrate Barred by the Applicable Statute of Limitations?
[3] Issue: Is the Party Seeking Arbitration Itself in Default?
[4] Issue: Has the Petitioner Waived Its Right to Arbitrate?
[5] Issue: Class Claims

§ 5.08 Is the Dispute Rendered Non-Arbitrable for Public Policy Reasons?

§ 5.09 Stay of Litigation Under Section 3 Where Civil Action Is Already Pending in State or Federal Court

§ 5.10 Interaction of Sections 3 and 4

§ 5.11 When a Lawsuit Presents Arbitrable and Non-Arbitrable Claims; The Intertwining Doctrine
[1] History
[2] Current Law
[3] Stays of Litigation
[4] Multiple Parties

§ 5.12 Sanctions Against Losing Party on Motion to Compel Arbitration or Stay Judicial Proceeding
[1] What Type of Conduct Is Sanctionable?
[2] When Will Attorney Fees Be Awarded as Sanctions?

§ 5.13 Appealability of Grant or Denial of Order Compelling Arbitration

§ 5.14 Discovery in Aid of Proceeding to Compel Arbitration

§ 5.15 Provisional Judicial Relief Pending and in Aid of Arbitration
[1] Tactics for Resisting Provisional Relief Pending Arbitration
[2] Injunctions Against Arbitration Proceedings