Comprehensive Commercial Arbitration Training For Arbitrators And Counsel
Join us for this comprehensive interactive training on conducting commercial arbitrations – as arbitrators and as counsel — using contemporary Best Practices.
Attention Law Students!! We invite you to attend this program free of charge. Please send an e-mail to [email protected] to receive the special promo code. If you are not already an existing NYSBA member, be sure to create your profile today.
For new arbitrators and seasoned arbitrators interested in taking their skills to the next level – and for litigators interested in learning how best to represent clients in arbitrations to take advantage of the advocacy opportunities available in arbitration.
The training will be conducted by seasoned arbitrators, counsel, arbitration administrators, and academics, focusing on Best Practices, from the perspectives of arbitrators and counsel, for conducting commercial arbitrations in an economical, expeditious and fair manner, enabling parties to achieve the promise of commercial arbitration.
In addition to interactive sessions on managing an arbitration from the preliminary conference through the hearing and award, the program will include presentations on the law of arbitration, the ethical rules relating to service as an arbitrator, e-discovery, award writing, international arbitration, mental heuristics relevant to arbitral decision-making, and the development of an arbitration practice.
The training will be provided by commercial arbitrators Charles J. Moxley, Jr. and Edna Sussman and by arbitration counsel Lea Haber Kuck of Skadden, Arps, Slate, Meagher & Flom LLP, and will include presentations by Jeffrey T. Zaino, Vice President, American Arbitration Association, and Luis M. Martinez, Vice President, International Centre for Dispute Resolution. See the list below of the faculty members who will be presenting on the key substantive areas for conducting effective arbitrations.
Topics and Skills:
- Selecting Arbitrators
- Conducting Conflicts Searches
- Conducting the Preliminary Hearing
- Conducting Hearings on Applications for Preliminary Injunctions and Other Interim Relief
- Determining the appropriate scope of discovery, including documents, electronic documents and depositions
- Determining the appropriate scope of motion practice
- Setting deadlines for discovery and motion practice
- Hearing discovery and substantive motions
- Addressing motions to disqualify counsel
- Special considerations for pro se parties
- Determining what non-party subpoenas to sign
- Running the hearing effectively
- Determining what evidence to admit and exclude
- Dealing with difficult arbitrators, counsel and parties
- Issues as to the authority or not of arbitrators to award sanctions
- Preparing awards, both standard and reasoned
- Handling requests to submit additional evidence after the closing of the hearing
- Deciding applications to amend awards
- Arbitration ethics, diversity, and inclusion
- Seeking vacatur of awards
- Cyber security in arbitration
Building an ADR Practice, Opportunities in the Field
The program faculty has presided over many hundreds of hearings and served as counsel in many arbitrations.
Co-Sponsors
International Section of the New York State Bar Association
CPR: International Institute for Conflict Prevention and Resolution
Benjamin N. Cardozo School of Law
American Arbitration Association
International Centre for Dispute Resolution
College of Commercial Arbitrators
New York International Arbitration Center
TESTIMONIALS FROM PREVIOUS ATTENDEES:
“I have never been to a better training seminar in my 29 year career.”
“The level of information and energy was amazing. It covered the area from soup to nuts. The seminar should be used for prospective arbitrators by all of the various arbitration programs. The knowledge and willingness to answer questions by the speakers was awesome. Mr. Moxley’s guidance resulted in a tremendous sharing of expertise by extremely experienced and knowledgeable panelists. ”
“I would recommend this seminar to everyone. It is a must.”
“Great learning experience, superb presentations and excellent networking. This is one of the best three day CLE programs I have ever attended.”
“As an experienced CLE lecturer I can tell you that this arbitration training program was excellent. First class all the way!”
Faculty:
David J. Abeshouse, Law Office of David J. Abeshouse
Erin Gleason Alvarez, Arbitrator and Mediator
Oliver J. Armas, Partner, Hogan Lovells US LLP
Simeon Baum, President of Resolve Mediation Services, Inc
Hon Ariel E. Belen (Ret.), Arbitrator and Mediator, JAMS
Leslie Berkoff, Partner, Moritt Hock & Hamroff
Steven Certilman, Arbitrator and Mediator
Stephanie Cohen, Arbitrator, FCIArb
Hon. Carolyn E. Demarest (Ret.), Mediator and Arbitrator, JAMS
Joseph V. DeMarco, Partner, DeVore & DeMarco LLP
Diana Didia, Senior Vice President and CIO, AAA-ICDR
Helena Erickson, Senior Vice President, Dispute Resolution Services and Corporate Secretary, CPR International Institute for Conflict Prevention & Resolution
Tracey B. Frisch, Senior Counsel, American Arbitration Association
Linda Gerstel, Arbitrator and Mediator
David M. Goldman, Vice President, Corporate Development & General Counsel, Gabelli Funds, LLC
Ignatius Grande, Director, Global Investigations + Strategic Intelligence, BRG
Ingeuneal Gray, Co-Chair of the AAA's Diversity Committee
Betsy A. Hellmann, Counsel, Skadden, Arps, Slate, Meagher & Flom LLP
Mansi Karol, Director of ADR Services, American Arbitration Association
Daniel F. Kolb, Senior Counsel, Davis Polk & Wardwell LLP; Past Chair, NYSBA Dispute Resolution Section
Lea Haber Kuck, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
Jack P. Levin, Arbitrator and Mediator
Professor Lela Love, Cardozo Law School, Director, Kukin Program for Conflict Resolution
Chrystal Loyer, Associate Director, FINRA Office of Dispute Resolution
Luis M. Martinez, Vice President, International Centre for Dispute Resolution®
Richard L. Mattiaccio, Arbitrator and Mediator; FCIArb C.Arb
Boaz S. Morag, Counsel, Cleary Gottlieb Steen & Hamilton LLP
Mark C. Morril, Arbitrator
Charles J. Moxley, Jr., Arbitrator and Mediator; Past Chair, NYSBA Dispute Resolution Section
Camille M. Ng, Deputy Counsel, ICC
Diane O’Connell, Mediator, Arbitrator, Consultant
Abigail Pessen, Arbitrator and Mediator; Past Chair, NYSBA Dispute Resolution Section
Amy Pontillo, Senior Counsel, New York State Court System
Rekha Rangachari, Executive Director, New York International Arbitration Center (NYIAC)
Hon. Shira A. Scheindlin (Ret.), Counsel, Stroock & Stroock & Lavan LLP
Richard H. Silberberg, Partner, Dorsey & Whitney LLP; Past President, College of Commercial Arbitrators
David C. Singer, Arbitrator and Mediator; Past Chair, NYSBA Dispute Resolution Section
Michelle Skipper, Vice President, American Arbitration Association
Steven Skulnik, Senior Legal Editor, Thomson Reuters
Edna Sussman, Arbitrator and Mediator; Past Chair, NYSBA Dispute Resolution Section
Michael Walsh, Arbitrator and Mediator
Robyn Weinstein, Director, Arbitration and Mediation Program, United States District Court for the Eastern District of New York
Daniel M. Weitz, Director, Division of Professional & Court Services, New York State Unified Court System; Adjunct Professor of Law, Cardozo Law School
Jeffrey T. Zaino, Vice President, American Arbitration Association
Richard Ziegler, Arbitrator and Mediator
PROGRAM DIRECTORS:
CHARLES J. MOXLEY, JR., ESQ.: Mr. Moxley has presided over hundreds of arbitrations, including in the commercial, securities, insurance, employment, and international areas. He is an Adjunct Professor of Law teaching arbitration and international law at the Fordham University School of Law and the Distinguished ADR Practitioner in Residence at Benjamin N. Cardozo School of law. A Fellow of the College of Commercial Arbitrators and of the Chartered Institute of Arbitrators, he is a member of arbitration and mediation panels of the American Arbitration Association (“AAA”), the International Centre for Dispute Resolution (“ICDR”), the International Institute for Conflict Prevention and Resolution (CPR), the U.S. Council of International Business (USCIB) for the ICC International Court of Arbitration, and Supreme Court, New York County (Commercial Division and Part 137). He also serves as an arbitrator and mediator in ad hoc cases and is an IMI and CEDR Certified Mediator. Mr. Moxley lectures and speaks frequently at academic and professional functions and has written extensively on Best Practices in conducting commercial arbitrations.
EDNA SUSSMAN, ESQ.: Ms. Sussman is a full-time experienced arbitrator and mediator with experience with hundreds of disputes serving on leading ADR panels, including those administered by the American Arbitration Association (“AAA”), the International Centre for Dispute Resolution (“ICDR”) the International Institute for Conflict Prevention and Resolution (CPR), the U.S. Council of International Business (USCIB) for the ICC International Court of Arbitration, WIPO, the Swiss, Hong Kong, Singapore, Kuala Lumpur and Dubai Arbitration Centers, the Supreme Court, New York County (Commercial Division) and the U.S. District and Bankruptcy Courts in New York. The Distinguished ADR Practitioner in Residence at the Fordham University School of law, Ms. Sussman serves on the boards of the AAA and the College of Commercial Arbitrators, is a fellow of the Chartered Institute of Arbitrators and has published and lectured extensively on the arbitration and mediation process. She was selected as “2012 New York City Mediation Lawyer of the Year” by Best Lawyers and is listed annually in Best Lawyers and Super Lawyers for Alternative Dispute Resolution.
LEA HABER KUCK, ESQ.: Ms. Kuck is a partner at Skadden, Arps, Slate, Meagher & Flom LLP, and a member of its international litigation and arbitration group. Ms. Kuck concentrates her practice on complex litigation and arbitrations involving a wide range of corporate, commercial and securities matters. She regularly represents clients in disputes arising out of international business transactions and advises clients on a variety of issues relating to international dispute resolution, including forum selection, jurisdiction, service of process, extraterritorial discovery and enforcement of judgments. Ms. Kuck has experience in all phases of litigation, both at the trial and appellate levels, in federal and state courts in the United States as well as international arbitration conducted under UNCITRAL, ICC, ICDR and other arbitration rules. She frequently writes and lectures on topics of international litigation and arbitration.
For more information, contact Catherine Carl at [email protected].
This will be an interactive program with active participation by those taking the training.
- July 12, 2021
- July 14, 2021
- 9:00 AM
- 5:00 PM
- 11.0
- 1.5
- 3.0
- 9.0
- 24.5
- Virtual Participation
- Selection of arbitrators
- Arbitrator disclosure of potential conflicts
- Organizational meeting of panel members when there is a panel
- Preparing for the preliminary hearing
- Applications for interim relief
- Whether the preliminary hearing should be held in-person or by telephone
- Whether clients should be present at the preliminary hearing
- Whether to send the parties an agenda of items to be covered at the preliminary hearing
- Whether to ask the parties to meet in advance to agree on schedule
- Setting the date and time for the preliminary hearing
- Whether to encourage the parties to start the process of document disclosure in advance of the preliminary hearing
- Related ethical issues
- Purposes of preliminary hearing
- Role of chair and “wings” in the preliminary hearing
- Arbitrator’s opening remarks in preliminary hearing
- Review of what documents the arbitrators have received in advance to make sure there is nothing missing
- Review of arbitration clause
- Requests for interim relief
- Applications for a change of venue
- Determination of applicable law
- Substantive law applicable to the parties’ agreement and conduct, etc.
- Arbitration law, including whether the Federal Arbitration Act and/or state arbitration law apply
- Issues as to arbitrability
- Possibility of amended pleadings
- Particularizations of damages claims or counterclaims and of other matters of proof
- Applications to disqualify counsel
- Related ethical issues
- Substantive Motions
- Motions to Dismiss Claims or Counterclaims
- Motions to Dismiss Punitive Damages Claims
- Motions to Dismiss Based upon Statutes of Limitations or Similar Defenses
- Procedures for Screening Potential Motions
- Discovery
- Non-electronic documents
- Electronic documents generally (there will be a more detailed program on electronic documents later in the program)
- Depositions
- Interrogatories
- Differences between domestic and international arbitrations
- Establishing a schedule for document production, including dates for:
- Document requests
- Objections to document requests
- Counsel’s conferring in an effort to resolve document disputes
- Submission of letters to the arbitrator relating to remaining discovery disputes
- Setting dates for oral argument of discovery disputes
- Production of non-objected to documents
- Establishing a completion date for all document production
- Issue of whether to set up a separate process to maintain control of e-discovery
- Approaches as to depositions
- Avoiding them all together
- Limiting the number of depositions
- Limiting the duration of depositions
- Phasing the depositions
- Rule 30(b)(6) depositions
- Generally precluding speaking objections
- Getting agreement on alternatives to standard depositions
- Appearance at the hearing by videoconference
- Appearance by videotaped deposition
- Appearance by telephone
- Establishing cut-off dates for discovery
- Related ethical issues
- Other motions
- Motions to consolidate or sever
- Possible alternatives to testimony
- Stipulations of uncontested facts
- Direct testimony by affidavit
- Affidavits
- Expert witnesses
- Identification of anticipated experts
- Exchange of experts’ reports
- First exchange: On issues as to which parties have the burden of proof
- Responsive experts’ reports
- Depositions of experts
- Pre-hearing papers
- Witness lists
- Level of detail
- Whether/when to require summaries of testimony
- Exhibits
- Joint exhibits
- Individual exhibits
- Organization of exhibits
- Chronologically
- By topic
- Separate page ranges assigned to each side
- Key exhibits
- To be exchanged on a joint basis or separately by each side
- Marking up of key exhibits to designate portions relied upon
- Pre-hearing memoranda
- Relationship of pre-hearing memoranda to the question of what kind of post-hearing papers/oral argument will be interposed
- Form of testimony of witnesses
- In person
- By videoconferencing
- By videotaped deposition
- By telephone
- By deposition
- Subpoenas for non-party witnesses and their documents
- Materiality to the case of the documents or testimony sought
- Legal issues as to the authority of arbitrators to sign subpoenas (to be discussed further in a later panel)
- Legal and ethical concerns as to the appropriateness of arbitrators’ signing subpoenas
- Interplay of FAA versus state law on the question of the appropriateness of arbitrators’ signing discovery subpoenas
- Mediation: Whether to include a suggestion that, as some point, the parties discuss settlement/mediation and a schedule for same
- Establishing dates for status conferences
- Form of decision: Standard versus reasoned awards (this topic will be covered in more detail in a later panel)
- Court Reporter
- Whether the parties will arrange for a court reporter
- Relationship of that question to the question of whether the parties want a reasoned award
- What to do when one party wants to retain a court reporter and the other doesn’t
- Scheduling of the hearing
- When to schedule the hearing
- How many days to schedule
- Discussion of whether parties will be limited to those days
- Report of preliminary hearing and scheduling order
- Related ethical issues
- Overall description of what happens during this period
- Hearings on applications for interim relief
- Discovery motions
- Discovery requests and productions subsequent to the discovery cut-off
- Handling of substantive motions
- Handling of substantive motions made subsequent to the cut-off date
- Requests for delays and extensions of established deadlines
- How to handle parties’ notification of change of counsel, particularly when the change causes conflicts for arbitrators or is otherwise a basis for delay
- Non-compliance with deadlines and directives of the arbitrators
- Arbitrators’ authority or not to issue sanctions
- Final pre-hearing status conference
- Withdrawal of claims on the eve of the hearing
- Related ethical issues
- General introduction to the conducting of the hearing
- How to handle and limit breaks
- How, generally, to keep the hearing going efficiently
- How and when to handle objections as to documents
- Desirable effect of the arbitrator during the hearing
- Avoiding ex parte conversations during breaks at the hearing
- Sequestration of witnesses
- Opening statements, if any, by counsel
- Limited requirements as to foundations for documents and other exhibits
- Generally deeming un-objected-to pre-marked exhibits as in evidence as of the opening of the hearing––and alternate approaches
- What, if any, rules of evidence or the like to follow in deciding what evidence to permit as an arbitrator
- Attitude towards hearsay testimony and other evidence in arbitration
- Witness statements/experts’ reports
- Counsel’s extensive reading from documents
- Cumulative testimony
- Repetitive witnesses
- Harsh cross-examination
- Witnesses on cross who keep repeating their overall points
- Counsel talking with witnesses while they are on cross-examination
- Excessive objections
- Closing statements, if any
- How to handle disclosures that become necessary during the hearing because of the identification of new parties or entities involved in the case
- Related ethical issues
- Drafting of the award (general introduction -- There will be a more detailed discussion of this topic by a later panel)
- Post-hearing applications for introduction of additional evidence
- Post-award requests to change the award
- Mathematical or formal corrections and the like
- Substantive changes
- Rule as to functus officio status of arbitrators after issuing a final award
- No Contact with counsel or parties following the award
- Related ethical issues
- Motions to confirm and vacate and motions re arbitrability
- How Litigators see them
- How Courts see them
- How best to advance such motions
- What arbitrators should do to lessen likelihood of vacatur
- Remands to arbitrators
- Introduction to the overriding conventions and laws applicable to international as contrasted with domestic arbitration
- Discussion of the practices of international arbitration that are different from domestic
- The extent and significance of international arbitration as the default methodology of choice for international business
- “Soft law” applicable to international arbitration
- Significance of electronic discovery in terms of cost and delay
- Definition of terms
- Identification of the areas of greatest expense in connection with electronic discovery
- Matters to establish at the outset to minimize the expense and optimize the efficiency of electronic discovery
- ICDR recommended practices as to electronic discovery
- CPR Protocols as to electronic discovery
- Best Practices as to electronic discovery
- Standard versus reasoned awards
- Advantages and disadvantages of various types of award
- Consideration of what should be included in a standard award
- Consideration of what should be included in a reasoned award
- The structure of a reasoned award
- How to go about drafting a reasoned award
- When to start drafting a reasoned award
- Best Practices as to drafting of reasoned awards where there is a panel of three arbitrators
- Introduction to the FAA
- Introduction to New York arbitration law – CPLR Article 75
- Interplay of the FAA and New York arbitration law in arbitrations held in New York
- Arbitrability as to parties and non-parties
- The “Who Decides” issue: Who determines arbitrability, the arbitrators or a court?
- Arbitration due process
- Enforceability of non-party subpoenas for documents and testimony
- Within subpoena range of the seat of the arbitration
- Beyond subpoena range of the seat of the arbitration
- Standards of review under the FAA and New York arbitration law
- How these areas of law differ in the context of international arbitration
- Review of recent decisions applicable to arbitration
- Disclosure rules
- Codes of Ethics applicable to arbitrators
- Best practices for disclosures by arbitrators
- Ongoing nature of disclosure obligation
- Party-appointed arbitrators
- Appropriateness of an arbitrator’s accepting appointment to a new case that involves parties or attorneys who are already appearing before the same arbitrator in another case
- Use of associates/assistants
- Appropriateness of an arbitrator’s accepting employment as counsel for a party who had previously appeared before the arbitrator in an unrelated case
- Involvement of arbitrators with respect to possible settlement discussions among the parties
- Inclusion of all arbitrators on a panel in arbitrator discussions concerning the case
- Recent ethical decisions
- Overview of the arbitration world
- Level of training and experience necessary to be a good arbitrator
- How to go about getting experience as an arbitrator
- Traits that parties and their counsel look for in prospective arbitrators
- Opportunities for arbitration training and skills building
Program Agenda
Commercial Arbitration Training for Arbitrators and Counsel
Monday, July 12, 2021, Morning Session
9:00-9:15 a.m. - Welcome and Introductions
Prof. Lela Love, Cardozo Law School
Charles J. Moxley, Jr., Training Co-Chair
9:15-10:30 a.m. - Pre-Preliminary Hearing Issues—Ethical and Other Issues
Faculty:
Charles J. Moxley, Jr.
Edna Sussman
Lea Haber Kuck
10:30-10:45 a.m. – Break
10:45-12:25 p.m. - Preliminary Hearing: Part 1
Faculty:
Charles J. Moxley, Jr.
Edna Sussman
Lea Haber Kuck
12:25-12:45 p.m. - Lunch break
12:45 p.m. - Luncheon Address: The Promise of Arbitration – What We’re Trying to Do
Speaker Charles J. Moxley, Jr.
Monday, July 12, 2021, Afternoon Session - 1:25-3:05 p.m. Preliminary Hearing: Part 2
Faculty:
Charles J. Moxley, Jr.
Edna Sussman
Lea Haber Kuck
3:05-3:20 p.m. - Break
3:20-5:00 p.m. Preliminary Hearing: Part 3
Faculty:
Charles J. Moxley, Jr.
Edna Sussman
Lea Haber Kuck
5:00-6:00 p.m. - Optional Virtual Networking
Tuesday, July 13, 2021, Morning Session
9:00-10:00 a.m. - Issues Arising Between the Preliminary Hearing and the Hearing
Faculty:
Charles J. Moxley, Jr.
Edna Sussman
Lea Haber Kuck
10:00-11:00 a.m. - Session 2: The Hearing
Faculty:
Charles J. Moxley, Jr.
Edna Sussman
Lea Haber Kuck
11:00-11:15 p.m. - Break
11:15-12:15 p.m. - Post-Hearing Issues - Part I: The Arbitrators’ Perspective
Faculty:
Charles J. Moxley, Jr.
Edna Sussman
Part II: The Courts’ and Litigators’ Perspectives
Faculty:
Hon. Carolyn E. Demarest (Ret.)
Lea Haber Kuck
12:15-12:35 p.m. Lunch break
12:35 p.m. - Luncheon Address: Introduction to the World of International Arbitration – and How It Fits into Today’s World
Speaker: Luis M. Martinez
Tuesday, July 13, 2021, Afternoon Session
1:15-2:30 p.m. - International Arbitration: How It Differs from Domestic Arbitration
Faculty:
Moderator: Charles J. Moxley, Jr.
Lea Haber Kuck
Luis M. Martinez
Richard L. Mattiaccio
Camille M. Ng
Rekha Rangachari
2:30-2:45 p.m. - Break
2:45-4:00 p.m. - Electronic Discovery
Faculty:
Moderator: Edna Sussman
Joseph V. DeMarco
Ignatius Grande
Diane O’Connell
Hon. Shira A. Scheindlin
4:00-5:00 p.m. - Award Writing
Faculty:
Moderator: Charles J. Moxley, Jr.
Hon. Ariel E. Belen (Ret.)
Steven Certilman
Richard H. Silberberg
Richard Ziegler
5:00-6:00 p.m. - Best Practices in Selecting Arbitrators
Faculty:
Moderator: Charles J. Moxley, Jr.
David J. Abeshouse
Oliver J. Armas
Erin Gleason Alvarez
David M. Goldman
David Singer
6:00 p.m. – ADJOURN
Wednesday, July 14, 2021
8:50-9:50 a.m. - Ethics and Cyber Security for Arbitrators – Maintaining the Security of the Arbitration Process
Faculty:
Moderator: Lea Haber Kuck
Stephanie Cohen
Diana Didia
Mark C. Morril
9:50-10:50 a.m. - Arbitration Law
Faculty:
Moderator: Charles J. Moxley, Jr.
Tracey B. Frisch
Richard L. Mattiaccio
Boaz S. Morag
Steven Skulnik
10:50-11:05 a.m. - BREAK
11:05-11:45 a.m. - Arbitration Law Part II
11:45-1:00 p.m. - Diversity, Inclusion and Elimination of Bias – Implicit Bias, Serving a Diverse Population, and Sensitivity to Culture and Other Differences, Including Heuristics Affecting Arbitrators’ Exercise of Judgment and Decision-Making
Faculty:
Moderator: Charles J. Moxley, Jr.
Ingeuneal Gray
Edna Sussman
Daniel M. Weitz
1:00-1:15 p.m. - Lunch Break
1:15 p.m. - Luncheon Address: How to be a Great Neutral—The Importance of Humility and Listening
Speaker: Professor Lela Love
Wednesday, July 14, 2021, Afternoon Session
2:00-3:15 p.m. - Arbitration Ethics
Faculty:
Moderator: Lea Haber Kuck
Leslie Berkoff
Betsy A. Hellmann
Daniel F. Kolb
Abigail Pessen
3:15-3:30 p.m. - Break
3:30-4:00 p.m. - The Real World: Developing Your ADR Career
Faculty:
Jeffrey T. Zaino
Michelle Skipper
4:00-5:40 p.m. - Perspectives on Practice Development in the Arbitration World
Moderator, Charles J. Moxley, Jr
Faculty (Providers):
Helena Erickson, CPR
Mansi Karol, AAA
Chrystal Loyer, FINRA
Robyn Weinstein, Eastern District of New York
Faculty (Experience Transitioning to Service as an Arbitrator):
Erin Gleason Alvarez
Simeon H. Baum
Linda Gerstel
Jack Levin
Michael Walsh
5:40-6:00 p.m. - Questions and Answers/Final Wrap Up
6:00 p.m. - ADJOURN
- Webinar
- 0KS11
- Commercial & Federal Litigation Section
