Re: Re: Re: arbitrating license agreements

I got a response from someone familiar with AAA rules, who indicated that they do provide for preliminary relief, but that the arbitration provision in the contract would have to specify the Optional Measures for Emergency Measures of Protection, along with the Commercial Arbitration Rules. See <http://www.adr.org/sp.asp?id=22440>. You would have to take the award of injunctive relief to court, like any arbitration award, to get an enforceable judgment entered.

As an alternative, he suggested reserving the right to go to court for preliminary injunctive relief, while providing for a decision on the merits by arbitration. That strikes me as problematic. The Court is going to rule on petitioner's likelihood of prevailing on the merits. It is not clear whether that becomes the law of the case, but it is a written, perhaps pubished, opinion; and might be followed by the arbitrator's decision on the merits for the respondent (which doesn't have to explain it basis or rationale); resulting in a judgment for the respondent entered by the same court that found petitioner was likely to prevail on the merits. I'm thinking it violates the advisory opinion aspect of Art. III.

In sum, I conclude that an arbitration provision should not be included in a copyright license agreement unless it also specifically agrees to the availability of the Optional Measures. My view of arbitration provisions, generally, is that they favor the party who dictates the basic contract terms, here typically the licensor, because that is the party whose regular inclusion of arbitration provisions expands the employment opportunities for arbitrators, only so long as he's happy with the results.

John Noble

At 3:15 PM -0400 6/21/06, Steven Jamar wrote:
>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/
>
>"No place affords a more striking conviction of the vanity of human
>hopes than a public library."
>
>Samuel Johnson, 1751
>
>
>
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Received on Thu Jun 22 2006 - 23:20:46 GMT