Arbitrations Are Decided On Their Merits, Not Technicalities, Assuring Consumers Of Procedural Fairn

By Author: Jon Yaakov Gorr
Total Articles: 12
Comment this article

Judges are specialist lawyers.  They don't have to know much about anything except the law. They might know a lot about legal tricks and technicalities however. Lay arbitrators are often specialists in something else, like the IT industry or engineering or buildings.  net-ARB, www.net-arb.com, engages those same specialist and Internet-commerce arbitrators to ensure that your dispute is settled quickly and fairly, without resort to legal tricks.

Microsoft had a surprise win against Lucent Technologies back in April 2006 in a fight over a patent infringement suit. At the centre: Microsoft's Xbox 360 game console, and Lucent patent number 5,227,878, for ‘adaptive coding and decoding of frames and fields of video,' Microsoft used the technology in the embedded MPEG-2 decoding capability within its Xbox 360 console. A previous suit filed by Microsoft in 2003 seeking a declaratory judgment of non-infringement was granted a summary judgment on a technicality due to a ‘typo' in the patent. Lucent says it has corrected the error and received an official patent correction notice from the USPTO.

Under ...
... the procedural fairness rules of an arbitration, designed to prevent parties returning to re-litigate essentially the same facts, Microsoft could not have won on a technicality.

Recently, the Globe.com used phony MySpace accounts to send unsolicited commercial "MySpace e-messages" to MySpacers. According to depositions, the Globe.com sent over 400,000 messages from 95 dummy MySpace accounts. MySpace filed suit, alleging violations of anti-spam laws and violations of its Terms of Service.  The Globe.com tried to win on a technicality by arguing that MySpace couldn't claim violations of the anti-spam laws because MySpace isn't an Internet Access Provider and e-messages aren't the same thing as electronic messages.  It lost, and was ordered to pay $5.5 million in damages. After the judge made this decision, the parties reached a private settlement of their disputes. Most likely The Globe.com threatened to appeal to a higher court unless MySpace agreed to take a lesser sum.  No. 06-3391 (C.D. Cal. Feb. 27, 2007).

Given that the parties came to a private settlement anyway, I'm surprised that they didn't want to save time and money by going to arbitration in the first place.

More common technicalities which have lost court cases but which might in the interest of procedural fairness be overlooked by an arbitrator include those argued in four cases dear to law students across the USA: late responses to motion for summary judgment, failure to move to withdraw deemed admissions, or not knowing that an applicant has to show both good cause, and no undue prejudice when seeking to excuse a failure to follow the rules of pleading.  An arbitrator is after a quick exchange of facts; not understanding the formal nature of a deposition or not having great English expression won't get in your way of getting justice.  The four cases are Carpenter v. Cimarron Hydrocarbons Corp.  98 S.W.3d 682, 686 (Tex. 2002) Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939).  Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) Wal‑Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 357 (Tex. 1998), and to make matters worse, they may have been decided differently if they'd been argued in states of the USA, or even other parts of Texas where the Court Rules are different.  Under the Texas Constitution, each of the 254 counties of the State has a single county court presided over by a county judge; each court generally has its own rules and it's common to be caught between one and the other - county courts in some counties have jurisdiction down to civil claims of $200; others don't.

No technicalities with arbitrations:  if the parties agree, you can nominate any time frame, any form for facts and any amount.  the net-ARB rules cover these comprehensively to guarantee a fair result.

More articles on arbitration are available at www.arbitrationarticles.com.

Author: Jon Yaakov Gorr writes for www.net-ARB.com while managing two global e-commerce businesses. Retired from his own Australian law firm where he represented clients many times in arbitration, Mr. Gorr speaks out for net-ARB because of his belief that arbitration is a valuable alternative to litigation and that net-ARB's revolutionary fast, convenient and affordable professional service is a great option, especially when disputes are long-distance or Internet-related. Contact: jyg@arbitrationarticles.com