Can an arbitration award be vacated for manifest disregard of the evidence? A AAA arbitration over a credit card billing dispute between a consumer and a bank concluded recently. The consumer &quot;won&quot;, in the sense that he obtained equitable relief, but lost, in the sense that he failed to recover damages. A key question of fact was whether the bank made billing statements available online. In his award, the arbitrator stated &quot;[consumer] presented no evidence that his Ink account statements were not available ... [bank] presented evidence that such statements were available on the [website]. So, there was no showing of failure on the part of [bank] to provide access to statements&quot;. However, the bank presented no such evidence at the hearing. They called a single witness, who had no personal knowledge relating to online statement access, and even testified quite plainly under questioning from the arbitrator himself that the bank had no evidence, e.g.: ARBITRATOR: [M]y question to [witness] is, does [bank] have any way to show whether or not the statements were actually posted to one of those username accounts that could be accessed online at the time? WITNESS: No. There wouldn't be anything in [the evidentiary record] that would reflect that. ARBITRATOR: Okay, all right. When you say that, are you suggesting that there could be evidence somewhere else? WITNESS: Not that I'm aware of, no. ARBITRATOR: Well, how do you deal with the allegation that [consumer] is making that he would go to the account ... and not see any statements? Can you prove or disprove that? WITNESS: I cannot prove or disprove that, no. Is this grounds to vacate the award?
No Chapter 1, Section 10 of the FAA states that a court may vacate an arbitral award only if it finds that one of the following limited grounds applies: (1) the award is a result of corruption or fraud; (2) evident partiality or corruption of an arbitrator; (3) arbitrator misconduct, such as refusing to hear pertinent and material evidence; or (4) the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award was not made. There is no “the arbitrator screwed up” basis. This is pretty much universal across jurisdictions for arbitration. One of the features (whether you think it’s a good or bad feature is up to you) is that arbitration is, for all practical purposes, final. That’s it, we’re done. The law is written that way because parties to an arbitration freely and voluntarily chose this method of dispute resolution over the courts. In theory, at least. Having made their choice, the courts will not unmake it.
How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a &quot;he said she said&quot; situation, for how can someone prove refusal to engage? You can prove the opposite if there are children born to both parents, but how can one prove a negative? Or is the statement by the divorce initiator considered sufficient for the judge? Testimony under oath is evidence. Judges resolve &quot;he said she said&quot; situations every day on a routine basis with witness testimony alone by judging the credibility of each witness before them. See also an answer by @Jen about the subject of how things are proved in court in general. In the appropriate case, testimony under oath with no other corroborating evidence can even support a murder conviction as proof beyond a reasonable doubt. It can certainly suffice to prove marital fault in a civil lawsuit for a divorce. If the judge finds that witness testimony under oath between more than one witness is irreconcilably different, and each witness is equally credible, and that it is impossible to tell which person is telling the truth, then the person seeking relief from the court has failed to meet their burden of proof to obtain relief from the court. But, this is rare. Usually, when witnesses are both testifying under oath and disagree about what happened, the judge will find that one witness is more credible than the other. And, in truth, while people certainly do lie in open court under oath, and probably are more likely to lie in that situation than when speaking to someone not under oath outside of a courtroom, most of the time, people don't lie and the testimony of all of the witnesses are consistent with each other subject to limitations based upon what they could perceive from their perspective and the limitations of imperfect memories. This could come down to demeanor in court, hesitation in answering, &quot;tells&quot;, inconsistencies in their testimony, corroboration from other evidence and other witnesses (e.g. what someone said to a friend or wrote in a diary at the time), evidence that a witness has been convicted of a crime of deceit in the past, use of language that suggests coaching about their testimony, or common sense judgments about whose story seems more plausible under the circumstances of the parties in front of the judge.
A motion to dismiss sets no precedent Whether it succeeds or not, it does not result in a judgement on the merits, it is simply an analysis on whether the case as pleaded shows the defendant has a case to answer. The case would have to go to trial, have a judgement issued (i.e. not settle), and await the result of final appeals (if any) before it would be considered precedent. As to your final question Is it considered intellectual property theft to capitalize on synthetic datasets produced by OpenAI's LLMs? No one knows. Hence the lawsuit.
Usually web site owners will prefer arbitration and people who would potentially sue web site owners will prefer a court forum, but this is only a typical situation and not a die hard rule for all circumstances. Features of arbitration: Binding arbitration is not subject to appeal so it tends to favor repeat, low stakes litigators over one-time high stakes litigators. Binding arbitration precludes class action lawsuits and punitive damages in most cases. Binding arbitration creates an institutional bias in favor of the contract drafter because the arbitrator needs to rule in their favor to get future business from the party selecting arbitration v. non-arbitration. Binding arbitration has much higher filing fees than ordinary court and is usually faster than ordinary court, but litigation costs for the parties tend to be similar to ordinary court. Binding arbitration has a reputation for "baby-splitting results" rather than all-or-nothing decisions in favor of one side or another. Binding arbitration can escape biases (e.g. anti-gay, anti-religious minority, anti-marijuana, pro-local citizen) that might exist in a local court system. Binding arbitration generally allows for much more irrelevant evidence to be admitted, and binding arbitration decisions cannot generally be overruled on the grounds that the arbitrator failed to follow the law or completely screwed up in understanding the facts. There is a much weaker likelihood of getting a fair result. Binding arbitration is generally not public, so the proceedings are generally secret, avoiding publicity and disclosure of secrets discussed in the proceedings. Arbitration often considers written documents like letters and witness statements in circumstances where courts in the U.S. would require in-person testimony (this is less of a consideration outside the U.S. where the hearsay rule is much less strict or is non-existent). Arbitrators are more often subject area specialists in the matter that is disputed. Arbitrators are less likely to reinterpret language in a TOS in terms of policy considerations or judicial precedent glosses (i.e., they are more likely to read contracts literally). Arbitration awards are not immediately enforceable and must be filed with a court in a summary proceeding to be enforced which makes them inconvenient for cases that are mostly uncontested. Arbitration awards don't create precedents that can be used in future cases. Arbitration can more often be decided without an in person hearing than court cases, even in situations where there are factual disputed between the parties. Features of court: Filing fees in court cases are cheap. Judges in courts tend to be far more impartial than arbitrators. Court decisions are immediately enforceable without a collateral enforcement action. This is particularly important when preliminary relief like a temporary restraining order or preliminary injunction is desired. Court decisions that are incorrect under the law or not supported by the facts can be appealed. They are much more likely to follow the law. Less irrelevant information is considered in a court decision. Court decisions can serve as precedents in future cases. Jury trials and class actions are often available in court cases. Court decisions are more likely to clearly rule in favor of the party in the right and against the party in the wrong without "baby splitting." Judges and juries in courts are "generalists" who are less subject to institutional capture than arbitrators (especially specialist arbitrators). Court is a more favorable forum for one-time, high-stakes litigation. Courts can have jurisdiction over people who aren't parties to an arbitration agreement but who may be necessary to grant full relief or who have a stake in the outcome. Punitive damages are often available in court cases when they wouldn't be available in arbitration forums.
Could the victim report this as fraud, theft or some other related crime? They could, but it's unclear whether they would be successful. A criminal conviction would require intent on the part of the company or an employee, and that will probably be difficult to prove. In a big system like this, individuals can usually claim misunderstandings and errors of omission, which makes such a proof difficult. They could try to establish criminal corporate liability, but again this is difficult to prove. So while possible, it's probably not worth it. Would the answer to the previous question differ based on whether the victim was eventually able to recover the money through litigation or by disputing the charge with their bank? Probably not. For a criminal conviction, it's necessary to prove that the company or an employee deliberately took money they knew was not theirs. Whether they later gave it back is not relevant for determining guilt (though it may reduce the sentence). Would the company itself or the specific employees involved be liable? In principle, both could be held liable. Again, this depends on what can be proved in court. Would a binding arbitration clause in the contract have any effect on criminal liability No, arbitration clauses cannot protect from criminal liability, only from civil liability (within limits). Off-topic: The fastest way to resolve such situations is usually to write one stern letter explaining why you are owed the money. If that does not work, sue them - if the situation is clear-cut, you will most likely win, or the company will settle. Many jurisdictions have simplified court proceedings for clear cases like this, for example the Mahnverfahren in Germany.
The general rule is that in the opening statement, the lawyer may describe what he expects the evidence and testimony to show: We will present Mr Smith, who will tell you that he saw the defendant miles away at the time of the crime But cannot make statements of fact as such. I don't see why this rule would be different for a pro se defendant. In a closing argument, as i understand the rule, the lawyer may and often will say things like "As witness X testified, there was no time to stop" but is not supposed to introduce new alleged facts not supported by the evidence. However, in a closing, a lawyer can and often does draw conclusions from facts supported by testimony. "My client was proved to have been in the next town 20 minutes earleri, so obviously he could not have committed the crime." Again, i don't see any reason why these rules would be different for someone acting pro se.
If video filmed by (say) a smartphone is used as evidence, does the person who filmed it have to submit an affidavit saying &quot;I filmed that at location X at time Y&quot;? Or can the video be used as evidence without that? Short Answer Someone must testify to authenticate video evidence but it doesn't necessarily have to be the person who filmed it and an affidavit would frequently not be sufficient to do so. Long Answer There are two main kinds of evidence: exhibits and testimony. Videos are a form of exhibit even though they may sometimes record testimony (and videos of depositions and trial testimony are often treated as testimony rather than exhibits for many purposes). Video evidence (like all other exhibits) must be authenticated to be admitted in court and considered to resolve disputes presented to a court (at least in common law court systems like England, the U.S., Australia, etc.) Authentication means to provide context to show what the evidence is and how it came to be and that it is what it purports to be. Some of the evidence provided to authenticate an exhibit is also called &quot;foundation.&quot; The burden of proof to authenticate a document is a fairly low bar. Generally, if a party can provide prima facie evidence sufficient if believed to be true to authenticate an exhibit and another party disputes its authenticity, the exhibit is admitted and the question of authenticity at that point becomes one for a judge or jury as a finder of fact to weigh based upon all of the evidence, and not a question regarding whether or not the evidence can be admitted for consideration at trial. There are multiple ways that evidence can be authenticated, and this is not limited to testimony from the person who took the video. Someone who was present when the video was taken, for example, could also authenticate it. A chain of custody is often part of proof of authentication. Any way to prove that the evidence is what it purports to be and to establish what it purports to be that logic and reason supports is allowed. There are a few kinds of exhibits that are self-authenticating (e.g. government documents under seal), but video evidence rarely qualifies as self-authenticating (in part because it can be manipulated and someone needs to testify that it was not manipulated). There are other kinds of evidence which may be authenticated by affidavit under safe harbor provisions of rules of evidence, such as certain evidence provided in response to a subpoena duces tecum (i.e. a subpoena to produce documents) in some jurisdictions. But the general rule is that an affidavit is not sufficient and that exhibits including video evidence must be authenticated with the live testimony of a witness under oath who has personal knowledge of the facts to be established which is subject to cross-examination.
Yes, one should not publish evidence until a verdict is reached. This includes any possible appeals. In common law, doing so has long been one of the contempt of court offences called sub judice, or &quot;publishing information that interferes with a fair trial&quot;. The main point is that the jury should not be influenced by any information other than what they hear in the courtroom. In New Zealand, the offence was recently codified.