Re: Re: arbitrating license agreements

I'm not sure I follow the reasoning here. An injunction isn't self-enforcing, any more than a money judgment is self-enforcing. Folks like sheriffs and other administrative officers have to get involved if the parties disobey.

If an arbitrator issues an "injunction," I would suppose that that order is enforcible in the same way a money judgment is, by a secondary action in a court. Cumbersome, granted, but that's the way the arbitration system works when the parties are recalcitrant. Theoretically, a court should issue a TRO ex parte under the FAA (or state equivalent) on presentation of evidence that an arbitrator has issued one, since the essence of the FAA is that courts enforce arbitral decisions without regard to the merits. "Enforce" in this case has a slightly different meaning from the enforcement you get of an actual court order--the court is here judicializing the private ruling, but eventually the outcome is the same.

Vance, who usually puts recourse to courts for equitable remedies into his arbitration clauses.

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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-- 
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com