International law systems, justice, human rights and global business education concept with world map on a school globe and a gavel on a desk on blue background.

The new CCP §1297.185 essentially over rules the 1998 California Supreme Court case known as Birbower holding that lawyers from foreign nations could not appear in international arbitration matters in California.  California Governor Jerry Brown signed into law SB 766 effective January 1, 2019.  Arbitration and mediation are huge businesses for lawyers and this will create more opportunities for California based attorney’s and ADR companies 😊

Code of Civil Procedure § 1297.185, et seq. is very broad, essentially the requirements are:

  1. The non-California admitted attorney must be admitted in good standing to all jurisdictions in which he/she is a lawyer. must be based outside of California.
  2. The subject matter is supposed to be “internationally related” but Code of Civil Procedure § 1297.186(a) is broad enough to cover almost any mediation or arbitration proceeding.

In an unpublished opinion, Milder v. Holley, B267974 (2/5 1/31/17) the Court of Appeal on a gateway issue, found that a judge decides if there was fraud in the inducement to enter into an arbitration agreement in California.  ( Citing Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1095.)  This is separate from fraudulent inducement to enter into the contract which happens to contain an arbitration clause.  The latter is to be decided by the arbitrator. (Citing Ericksen, Arbuthnot, McCarthy, Kearney & Walsh Inc. v. 100 Oak Street, (1983) 35 Cal.3d 312, 323.)  Read more … Continue Reading Enforcement of an Arbitration Clause is for the Court not Arbitrator to Determine