Re: Re: arbitrating license agreements - verging OT

several thoughts and pointers that probably don't directly answer your question:

The supreme court's recent thoughts on enforcing arbitration awards that include mandates or injunctions (not just $ damages) can be seen in
Eastern Associated Coal Corp. v. Mine Workers 531 U.S. 57 (2000) (District, appellate, and S.Ct. refuse to overturn arbitrator's order compelling re-employment) Here, the arbitrator didn't just 'decide' wrongful termination, but 'ordered' re-employment. To be fair, the issue was scope of 'public policy' exception to enforcement, and this was in the somewhat sui generis field of labor collective bargaining agreements.

The American Arbitration Assn. contemplates that arbitrators could be empowered to enjoin acts as well as explicitly stripped of that power - they have draft clauses going each way. They also contemplate Professor Jamar's ideas about "pausing" arbitration to secure court relief. See especially Rule 34 of the Commercial rules: http://www.adr.org/sp.asp?id=22440#R34

Ditto the Arbitration policies at NASD:
http://www.nasd.com/web/groups/med_arb/documents/mediation_arbitration/nasdw_009469.pdf

On 6/20/06, Steven Jamar <stevenjamar[_at_]gmail.com> wrote:
> Couple of things.
>
> 1. Many federal courts allow preliminary injunction actions in aid of
> arbitration agreements - that is, it becomes a federal court action to
> get the the preliminary injunction while the arbitration is pending
> and proceeding.
>
> 2. The 8th Circuit (and maybe others) takes a different view where
> the court has jurisdiction only if the contract essentially reserves
> the right to get a prelim injunction from court despite an arbitration
> clause that requires all other issues to be arbitrated.
>
> 3. I know of no authority of an aribtrator to issue an injunction,
> preliminary or otherwise -- but I haven't researched the issue.
> Arbitrators are empowered to decide issues, but not enforce them, so
> even under the theory underlying arbitration, the arbitrators would
> not have authority to issue an injunction.
>
> 4. I have not researched this issue and do not know what is going on
> in the most recent version of the federal arbitration act -- though I
> doubt it empowers private parties to issue injunctions.
>
> I think one has a very good argument (contrary to the 8th Cir
> position) that a court always has jurisdiction for the prelim
> injunction -- provided the arbitration clause is being given effect
> concurrently, i.e., the arbitration is under way.
>
> I look forward to hearing from others who may have actually dealt with
> this issue.
>
> Steve
>
>
>
> On 6/19/06, J. Noble <jfnbl[_at_]earthlink.com> wrote:
>
> > So my question: Can arbitrators issue preliminary injunctions that
> > federal courts will enforce?
> >
>
> --
> Prof. Steven Jamar
> Howard University School of Law
>
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Received on Wed Jun 21 2006 - 21:00:01 GMT