Re: Re: Re: arbitrating license agreements

I guess I was being too narrow on "injunction" as being something a court does. I agree that an arbitrator can issue orders -- a re- employment remedy is a good example -- and then courts would be called on to enforce them.

I'm not fully certain that interlocutory orders are ok without a clause giving that specific power to the arbitrator. Again, not my area of expertise. So, I think an arbitrator could well have the power to issue an "injunction" as a remedy after the arbitration, but may not have the power to issue a preliminary or temporary "injunction."

I certainly would not rule this power out, however.

Steve

On Jun 21, 2006, at 1:00 PM, Vance R. Koven wrote:

> 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
>
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-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

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