The NHL recently announced that it was seeking to vacate the award of Arbitrator James Oldham that reduced the suspension of Calgary Flames defenseman Dennis Wildeman from 20 games to 10. Wideman had been suspended for 20 games for allegedly intentionally striking an opposing player. Arbitrator Oldham concluded that Wideman lacked the intent to injure and that the conduct was more appropriately subject to a 10 game suspension.
The collective bargaining agreement between the NHL and the NHL Player’s Association contains a newly negotiated right of appeal to a Neutral Discipline Arbitrator. Pursuant to the cba, the NDA
…shall determine whether the final decision of the League regarding whether the Player’s conduct violated the League Playing Rules and whether the length of the suspension imposed were supported by substantial evidence.
The NHL’s complaint alleges that the arbitrator exceeded his authority by “disregarding the standard of review set forth in the CBA” and improperly conducting a de novo review of the suspension.
The Players’ Association has filed a Motion to Dismiss or, alternatively, to confirm the award.
It has also been reported (NHL Dismisses Neutral Discipline Arbitrator Who Reduced Wideman’s Suspension) that the NHL has discharged Arbitrator Oldham, as it may do under its collective bargaining agreement.
As discussed in an earlier post, the Court of Justice of the European Union confirmed that its function is not to review findings of an Arbitrator or his interpretation of a Patent License Agreement: Genentech, Inc. v Hoechst GmbH/ Sanofi Aventis GmbH, Case C-567/14 (Judgment of the Court: 7 July, 2016).
Commenting on this decision, David Perkins finds that the position remains: international arbitral awards must be compatible with EU law and, consequently, it may be necessary to apply EU law when interpreting and applying the contract in issue.
On the facts of the Genentech case, Art.101(1) TFEU does not preclude imposing on a licensee an obligation to continue paying royalties for the use of patented technology for the entire period in which the agreement is in effect, notwithstanding the revocation or non-infringement of a licensed patent. As noted, this is subject to the proviso that the licensee is freely able to terminate the agreement by giving reasonable notice.
Source: JAMS ADR
The Respondent in a teacher tenure proceeding was a tenured support staff employee of the Pleasantville, NJ school district. While she was working at the office of the vice principal another employee came to the office to deliver an item to the vice principal. Aware that this employee had recently been promoted to Director of the C.A.R.E program, Respondent asked the other employee why she had not been included on the C.A.R.E. provider list. The employee responded that “everyone knows she … does not like children.”
A short time later, Respondent approached the employee and asked her about the remark. An exchange of words escalated into a physical confrontation and the two “started to wrestle, punching, and pulling hair” until they were separated by security.
As a result of this incident the district filed tenure charges against both employees. Respondent was charged with participation in a physical altercation that “interfered with the quality of the educational and professional environment of the school, the students’ education” which “created an unsafe working environment for other District employees.”
The charge was submitted to Arbitrator Lewis Amis for resolution.
Arbitrator Amis rejected Respondent’s contention that she had only been defending herself, concluding that she had become “too deeply embroiled” to avoid responsibility. While she had not been the first to become physical, she had become “fully engaged.”
Finding the tenure charge supported by the evidence, Arbitrator Amis upheld the dismissal, concluding:
It goes without saying that violence in any workplace need not be tolerated. That principle is especially relevant in an educational setting where a core value should be the use of reason as opposed to irrational force to resolve differences. The Respondent’s argument that there were no repercussions from the altercation that affected the pedagogical and administrative stability of the district, is without merit. Even though there were no student witnesses, the fight was a public event in a public school setting, and it was highly publicized. The district had no choice but to respond firmly, as it did. The Respondent’s dismissal, therefore, will be upheld.
Arbitrator Amis’ award can be found here.
Despite increasing harmonisation of patent law – for example, the adoption by the US of the “First to File” rule in the America Invents Act – there remains no global system, other than arbitration, which provides a single solution to multi-jurisdiction patent disputes. Nor is there such a system on the horizon. While the establishment of the UPC in Europe may eventually provide some improvement for patent disputes in the 28 EU Member States, that new Federal System brings with it the several uncertainties identified above and is, of course, limited in its jurisdiction.
With increased use of international arbitration in this sector, provided it continues to deliver sound, effective decisions within a reasonable time frame and at a reasonable cost, it is to be expected that it will more and more become the procedure of choice for parties in multi-country patent disputes.
David Perkins and Richard Price review some of the failings of the current system, and some of the uncertainties surrounding the proposed Unified Patent Court, while identifying which types of patent dispute are most suitable for arbitration. The full article is published on the Kluwer Arbitration Blog.
Source: JAMS ADR
On a reference from the Cour d’Appel de Paris, A.G. Wathelet upholds the primacy of an arbitral award as compatible with Art.101 TFEU in Genentech, Inc. v Hoechst GmbH / Sanofi-Aventis GmbH, Case C-567/14 (Opinion of Advocate General Wathelet: 17 March 2016).
David Perkins finds that for the Advocate Ceneral, the issue turned on the terms of the License Agreement between Hoechst/Sanofi-Aventis and Genetech, and there was nothing in that Agreement which gave rise to infringement of Art.101 TFEU. Nevertheless, if the Opinion is followed by the Court, it is clear that – as a matter of general effect – there is power for a National Court of an EU Member State dealing with a request to set aside or refuse enforcement of an arbitral award to examine whether the Agreement and the effect of the arbitral award infringe Arts.101 and/or 102 TFEU and are, consequently, contrary to public policy.
A full text of the article is published on the Kluwer Arbitration Blog.
Source: JAMS ADR
The UK’s Lord Chief Justice raised eyebrows in the legal profession in March, 2016 when he suggested that the growth of arbitration was hindering the development of common law. Lord Thomas of Cwmgiedd said that the UK took something of a wrong turning in 1979 and 1996 when it brought forward measures to make arbitration more attractive to the international market. The changes in the seventies and nineties focused on limiting the number of appeals which would come out of the arbitration process to be heard by a judge, thereby giving more finality and certainty to arbitration awards. But the unintended consequence, according to Lord Thomas, has been that a lack of commercial cases reaching the courts has hindered the development of common law.
Source: JAMS ADR
Grievant was employed by the University of Chicago Medical Center as a custodial assistant. A coworker of grievant reported to UCMC’s HR department that on several occasions grievant had referred to his supervisor as a “bitch” and stated he wanted to choke or strangle her. After conducting an investigation, the Medical Center dismissed grievant. That action was submitted to arbitration for resolution.
The arbitrator concluded that grievant made the statements he was alleged to have made, but that these comments, while serious, did not warrant dismissal. He ordered the Medical Center to reinstate grievant without back pay.
The Medical Center sought to vacate the award, claiming that the reinstatement order was contrary to Illinois’ public policy against violence in the workplace. It argued that if grievant were reinstated he may make similar statements in the future, or even act on threatening statements, and that other employees may be deterred from reporting threats or acts of violence.
The District Court rejected this effort. It noted:
These same arguments have been advanced by employers in other cases, and they have consistently been deemed insufficient to show that a grievant’s reinstatement violates a public policy against workplace violence. Notably, UCMC has not cited a single case, and I have found none, in which a court has found the public policy against workplace violence to have been violated by an employee’s reinstatement. Indeed, even in cases involving conduct ostensibly more threatening than [grievant’s], courts have steadfastly refused to vacate arbitration awards based on public policy.
The Court observed that the arbitrator had, at least implicitly, made a determination that grievant would pose no threat to others if returned to work.
In light of the arbitrator’s factual findings, and the narrow scope of the public policy exception, the Court denied the Medical Center’s request to vacate and granted the Teamsters request to confirm
The opinion of the Court in University of Chicago Medical Center v. Int’l Brotherhood of Teamsters can be found here.