Preliminary Proceedings - Part 1 - Chapter 5 - AAA Yearbook on Arbitration and the Law - 24th Edition

STEPHEN K. HUBER is Professor Emeritus at the University of Houston Law Center, and has served as a visiting professor at the University of Texas, Rice University (Political Science), Pepperdine Law School (Dispute Resolution Program), and the University of East Africa (Dar es Salaam, Tanzania). Mr. Huber is a member of the State Bar of Texas, and the editor of Alternative Resolutions, the quarterly journal of the Dispute Resolution Section. He is the author of numerous publications relating to arbitration.

BEN H. SHEPPARD, JR. is a Distinguished Lecturer and Director of the A.A. White Dispute Resolution Center at the University of Houston Law Center. From 1969 through 2005 he practiced at Vinson & Elkins L.L.P. where he was a Partner and Co-Chair of the firm's international dispute resolution practice. He was chair of AAA/ICDR task force that promulgated the 2006 amendment to the ICDR International Arbitration Rules that established a pre-arbitral emergency arbitrator procedure. He was the author of the report and recommendation to the ABA House of Delegates in support of the 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. He chaired one of the two working groups that promulgated the CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration. He is a past chair of the Disputes Division of the ABA Section of International Law and for five years served as editor-in-chief of The International Arbitration News. He is a member of the American Law Institute and a Fellow of the College of Commercial Arbitrators.

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Originally from: AAA Yearbook on Arbitration and the Law - 24th Edition

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CHAPTER 5
PRELIMINARY PROCEEDINGS

5.01 Interim Relief by the Court

Weingarten Realty Investors v. Miller, 661 F.3d 904 (5th Cir. 2011)

One is not entitled to an automatic stay the proceedings in a lower court during the pendency of an appeal from an order to compel arbitration.

A lender, Weingarten Realty Investors (hereinafter “WRI”), brought an action against the guarantor of a loan, Steward A. Miller (hereinafter “Miller”). Miller, in response, moved to compel arbitration and stay the proceedings. The district court denied Miller’s motion and Miller now appeals. On appeal, Miller contests that the district court (1) erred in not staying proceedings pending his appeal, (2) erred in finding that the guarantee was not subject to arbitration, and (3) erred in finding that WRI was not equitably estopped from avoiding arbitration.

First, noting that there is a circuit split on the issue, the court found that one is not entitled to an automatic stay when appealing an order to compel arbitration. The court reasoned that because answering the question of arbitrability does not determine the merits of the case, the lower court is free to continue proceedings on the merits of the case during the pendency of appeal. The question of arbitrability is thus collateral to the merits. Nevertheless, even if a party is not entitled to an automatic stay, the decision to stay the proceedings is still at the discretion of the court. Turning to the issue of whether or not Miller was entitled to a discretionary stay, the court found that Miller was not eligible for a stay because he failed to show that success was likely on appeal or that the balance of equities tipped in his favor.

Table of Contents:

CHAPTER 5 PRELIMINARY PROCEEDINGS

5.01 Interim Relief by the Court
- Weingarten Realty Investors v. Miller, 661 F.3d 904 (5th Cir. 2011)
- Next Step Med. Co. v. Johnson & Johnson Int'l, 2010 WL 3386569 (1st Cir. 2010)
- Toyo Tire Holdings of Am. v. Continental Tire North America, 609 F.3d 975 (9th Cir. 2010)
- Spinks v. Automation Personnel Serv., Inc., 2010 WL 142024 (Ala. 2010)

5.02 Arbitral Subpoenas and Pre-hearing Discovery
- Life Receivables Trust v. Syndicate 102 at Lloyd's of London, 549 F.3d 210 (2nd Cir. 2008)

5.03 Arbitral Stays of Parallel Litigation and Judicial Stays of Arbitral Proceedings
- PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10 (1st Cir. 2010)

5.04 Judicial Stay of Litigation Pending Arbitration
- Louis Berger Group Inc. v. State Bank of India, 802 F.Supp.2d 482 (S.D.N.Y. 2011).