Allen Waxman Arrives; Henry Schein Redux; New "Clear and Unmistakable" Exception to Old Rule
the CPR
August 20, 2019

Welcome to the "CPR DateBook," in which we periodically provide you with details on CPR's upcoming events in one place for easier planning purposes. These mailings will also contain helpful tips, highlights and links to breaking CPR news and initiatives, as well as CPR resources you may want to explore or revisit. CPR is always hard at work to provide information and other tools to help you advance your dispute resolution goals. To print the DateBook, first open it in your browser here.

Please join us in warmly welcoming our new President & CEO, Allen Waxman. Allen has an extensive career as a partner in law firms and as a general counsel and business executive in the life sciences industry, and is a committed advocate of finding innovative ways to avoid disputes and resolve them effectively and efficiently where they arise. 

Prior to joining CPR, Allen served as General Counsel of Pfizer, at Eisai Inc - the North American affiliate of the Japanese-based pharmaceutical company, Eisai Co Ltd - where he also led the Market Access business unit, and at Roivant Sciences, a start-up building biotech and healthcare technology companies. He also practiced law as a partner at Williams & Connolly, in Washington, D.C., where he tried criminal and civil cases.  Later in his career, he joined Kaye Scholer LLP (now Arnold & Porter Kaye Scholer) in New York as a partner.  He led the firm’s multidisciplinary Life Sciences Group, while also developing and executing on resolution strategies for clients. 

Allen's full bio and contact information can be found

CPR's Awards Program honors outstanding scholarship and practical achievement in the field of alternative dispute resolution. Award criteria focuses on processes, techniques, systems, commitment, and scholarship which address the resolution, prevention or creative management of major disputes involving public or business institutions between corporations, between government and corporations, or among multiple parties. The review committee comprises judges and lawyers from leading corporations, top law firms and academic institutions across the U.S. For more information click HERE.
Organized in collaboration with CPR's Canada Advisory Board and the CPR Energy Committee, and hosted by McCarthy Tétrault LLP, CPR's 2019 Canada Conference will take place in Calgary on October 17, between 8:30 and 11:30 am (with a welcome reception, hosted by Blake, Cassels & Graydon LLP, the night before). 

The theme of this year's conference will be "Horses for Courses: Effective Use of Different ADR Mechanisms in the Energy Sector." Speakers and attendees will explore such questions as:
  • What are the differences between arbitration, mediation and expert determination?
  • Are some types of disputes in the energy sector best resolved by one of these mechanisms, or does the success of any particular ADR technique depend less on the subject-matter of the dispute and more on the skill and experience of the neutral selected to resolve the dispute?
  • Should energy companies adopt a systematic approach to handling and resolving disputes?
  • What techniques work best for multi-stakeholder consensus building?
  • What are the latest tips on drafting and implementing multi-step and/or split dispute-resolution clauses?
Resolving commercial disputes in courts in Spain can be unpredictable, slow and costly for disputants. As pointed out in a recent working paper from the Central Bank of Spain, judicial inefficacy can also have a significant impact on business investments. Therefore, it is critical for public administrations, companies and practitioners to consider a variety of alternative mechanisms to resolve commercial disputes efficiently. This, not only to reduce the uncertainty, time, and costs involved in court litigation, but also to avoid losing economic investments which benefit society as a whole.

In this context, the Spanish Cabinet has approved a draft legislation aiming at boosting the role of commercial mediation in Spain by, among other measures, making the holding of an “informative” and exploratory session under the auspices of a trained mediator a mandatory prerequisite to filing a court action in a number of areas.

Join us at this event organized jointly by the International Institute for Conflict Prevention & Resolution (CPR), its European Advisory Board (EAB) and Cuatrecasas. Hear a panel of distinguished speakers discuss the current state of dispute resolution in Spain, explore ways to shape its future and share perspectives and best practices with an audience of dispute prevention and resolution professionals from all over Europe and the United States. The program will be followed by a networking reception. (This event will be held in English and will also be available via webinar) 

HERE for more information. Space is limited and registrations will be confirmed on a first-come, first-served basis. To register, click HERE.
This week on CPR's blog...


As regular CPR Speaks contributor Mark Kantor explains in his latest post, "You may recall that the US Supreme Court last term in Henry Schein, Inc. v. Archer and White Sales, Inc. rejected a 'wholly groundless' exception to its general principles allocating arbitrability issues between court and arbitrator (the First Options rule that 'Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.'). The Supreme Court then sent the case back to the US Court of Appeals for the Fifth Circuit for reconsideration in light of the Supreme Court’s ruling." 

Kantor discusses the recent Fifth Circuit opinion in that case, in which "the Appeals Court concluded that the arbitration clause in question did not clearly and unmistakably allocate the relevant question to the arbitrators. The Court then held that, based on the exclusion for 'actions seeking injunctive relief' from arbitration under the relevant clause, the dispute in question was not arbitrable....[T]he appeals court relied on contract interpretation principles to reach this result.  The court thereby emphasized the importance of precise drafting of the arbitration clause and any exceptions – 'the placement of the carve-out here is dispositive.'"

In Part I of a two-part post this week, new CPR Speaks contributor Philip J. Loree (pictured above) discusses a suggested trend toward what might (tongue-in-cheek) be called a "Clear and Unmistakable Outcome Exception" to the First Options Reverse Presumption of Arbitrability (a/k/a the “Clear & Unmistakable Rule”) READ THIS POST ON OUR BLOG HERE.

In Part II of his post, Loree discusses how Met Life & 20/20 Comm. "effectively made an end run around Schein" & considers what might have motivated those Courts to rule as they did. READ THIS POST ON OUR BLOG HERE.


Upcoming CPR events and trainings


September 9, 2019 - 2nd Annual GAR LIVE at Georgia State University – College of Law, Atlanta. CPR members may attend at a discounted rate. 

September 12, 2019, 12:30 pm -
CPR Employment Disputes Committee Meeting at Ogletree, Deakins, Nash, Smoak & Stewart in NY and via dial-in. This meeting will feature an interview with Jamie Kohen, Executive Director & Assistant General Counsel of Human Resources Law at JPMorgan Chase & Co. CPR Members only.

September 17, 2019, 12:30 pm - CPR Mediation Committee Meeting in New York (location TBD) or via dial-in. CPR members only. 

September 19, 2019, 12:00 pm - Joint CPR Environmental Committee and Insurance Committee Webinar, "Risk in the Climate Crisis: Breaking the Policy Gridlock and Insuring for Impact" via webinar and dial-in. CPR Members and Government & ADR Task Force members only.

October 3, 2019, 12:30 pm - CPR Energy, Oil & Gas Committee Meeting at Quinn Emanuel Urqhart & Sullivan in Houston, TX, either in person or via dial-in. CPR Members only. 

NEW: October 22, 2019 -
CPR Construction Advisory Committee Meeting, Panel Presentation & Networking Event, "Innovative Construction Projects: Philadelphia Edition" at Fox Rothschild LLP in Philadelphia.  Program and Networking Reception – Open to Public.
Construction Advisory Committee Meeting – CPR Members Only.

October 24, 2019, 12:30 pm - Banking and Financial Services Committee meeting at KPMG in New York, in person or via dial-in. CPR members only.

October 30, 2019, 12:30 pm - CPR Government & ADR Task Force Meeting at BakerHostetler, Washington, D.C., either in person or via dial-in, on ADR approaches to government enforcement actions.

November 6, 2019, 5:30 pm - "
Fomenting Change: International Institute for Conflict Prevention & Resolution at Work in Brazil and Mexico," a James F. Henry Speaker Series Event at New York Law School

November 12, 2019, 12:30 pm -
CPR Diversity in ADR Task Force Meeting in NY, in person or via dial-in. Location TBD. 

NEW: November 15, 2019 -
Submission deadline for CPR's 2019 Annual Awards

November 20, 2019 - CPR Corporate Leadership Award Dinner honoring Ford Motor Co. and General Counsel, Bradley M. Gayton, at Ziegfeld Ballroom, New York.

November 21, 2019, 8:30 to 10:00 am -
CPR Breakfast Program at NYIAC, featuring ConocoPhillips Deputy General Counsel and CPR Board member, Laura Robertson, and other noted speakers during this NY Arbitration Week event

November 22, 2019 -
Fordham International Arbitration and Mediation Conference 

December 3, 2019, 12 pm - CPR Environmental Committee Webinar via webinar and dial-in. CPR members only.

December 4, 2019 - CPR Mediation Committee Meeting. Location TBD. CPR members only.


September 16, 2019 - CEDR Mediation Skills Training, Dublin*

September 17, 2019, 6:00 to 7:30 - "
Arbitration in the Pharmaceutical and Life Sciences Sectors" at Lalive in Zurich. Speakers will include new President & CEO, Allen Waxman (formerly of Pfizer). A networking reception will follow.

NEW: September 19, 2019, 8:00 to10:30 am - CPR Corporate Counsel Roundtable Series – Oslo, Norway hosted by Advokatfirmaet Hammervoll Pind (By Invitation Only)

HAVE YOU REGISTERED? September 20 - 22, 2019 - CIArb & CPR Joint International Arbitration Training at Bennett Jones LLP in Toronto. A three-day program leading to CIArb's prestigious Fellow status. 

September 25, 2019,
The Future of Dispute Resolution in Spain, hosted by Cuatrecasas in Barcelona. The program will be followed by a networking reception

September 26, 2019 – CPR European Advisory Board In-Person Meeting hosted by Cuatrecasas in Barcelona, Spain. EAB Members only.

October 2, 2019 -
CEDR Mediator Skills Training, London* 

October 16, 2019, 6:00 - 8:00 pm –
CPR Canada Conference Welcome Reception Hosted by Blake, Cassels & Graydon LLP in Calgary, Canada

October 17, 2019, 8:30 -11:30 am – CPR Canada Conference "Horses for Courses: Effective Use of Different ADR Mechanisms in the Energy Sector" organized in collaboration with CPR Canada Advisory Board and CPR Energy Committee hosted by McCarthy Tétrault LLP in Calgary, Canada

*Through CPR's collaboration with CEDR, CPR members and Distinguished Neutrals can receive a 10% discount on CEDR Mediation Skills and Employment and Workplace Courses. Before registering, contact to receive your discount code.