Living With Hall Street v. Mattell Under The New Jersey Arbitration Act

November 3, 2008

       I wrote here previously about the options faced by healthcare lawyers considering the use of an arbitration agreement following the U.S. Supreme Court\’s decision in Hall Street Associates, L.L.C. v. Mattell, Inc.  As I saw it then, the decision in Hall Street requires counsel to decide what it is about the arbitration process that would cause them to choose arbitration in the first place.  It seemed to me that those who wanted the best of all worlds (i.e., the scope of authority, speed and finality of traditional arbitration and the legal safety net of enhanced judicial review), probably could not have it all.  I just read an article that addresses this point in far greater detail in the context of  cases arising under the New Jersey Arbitration Act.

       In “Law And More: Enforced Arbitration With Enhanced Judicial Review” (New Jersey Lawyer News online, November 1, 2008), attorney Christopher Walsh of the Gibbons firm presents a thoughtful analysis of the issues faced by New Jersey counsel in enforcing an arbitration provision calling for expanded judicial review, even though the New Jersey Arbitration Act allows the parties to select this option.  He focuses on the ambiguity of the Hall Street decision itself, the potential preemption of the New Jersey Arbitration Act, the effects of a removal of a state court vacatur proceeding to federal court, and the use of a choice of law provision to insulate the a desired application of the New Jersey Arbitration Act.

       Although I remain struck by the incongruity of using arbitration subject to “enhanced judicial review,” this is clearly a path some parties and their counsel will want to follow.  In New Jersey, Christopher Walsh\’s article is a good place to begin. 

    [Image: Lesser Ury: Leser mit Lupe, c. 1895]