When you see me in the street, you can tell that I’m a pro-arbitration kind of guy. I wear my FAA hoodie, usually with the hood down, the better for you to admire my snowy white hair and furrowed, gravitas-laden brow. So when a US Court of Appeals takes a swing at arbitration, my instinct is to swing back. Fifth Circuit, take this 🤜. (As a response to the decision here discussed, Archer & White Sales, Inc. v. Henry Schein, Inc., 2019 WL 3812352 (5th Cir. Aug. 14, 2019)). Actually, the Fifth Circuit got punched already this year for being…
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Preliminary Remarks Corruption, usually bribery or solicitation for bribery, occupies much attention among parties and tribunals in international arbitration. In investment arbitration, there is evidence of this in the Awards and other records of proceedings collected at italaw.com and elsewhere in online repositories. In commercial arbitration, we know this mainly from experience and anecdotal evidence. The discussion in this Commentary pertains to corruption as it bears upon the enforceability of the underlying transactions in the arbitration. Possible corruption in the arbitral process itself – such as attempts (actual or alleged) to bribe an arbitrator or a witness – are a…
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Even a casual follower of the US Supreme Court’s arbitration jurisprudence needed neither a crystal ball nor an HID light bulb to foresee that the employer would defeat the employees in the Lamps Plus case. (Lamps Plus, Inc. v. Varela, No. 17-988 (April 24, 2019)). The real question is and always has been what pathway to pursue a class arbitration would remain open in light of the majority’s reasoning, in the equally predictable 5-4 outcome with the Court’s conservative bloc fully subscribed to Chief Justice Roberts’s opinion. The path taken, it appears, has less to do with class arbitration than…
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In your Tribunals’ initial case management conferences last month, what discussion took place regarding to the use of Technology Assisted Review (“TAR”) for e-disclosure? Are many of you now scrambling to your web browsers to confirm exactly what is TAR? Is your approach to e-disclosure frozen in time circa 2010 (or perhaps 1995) — even as TAR’s acceptance among judges and magistrates is expanding?  Should questions about the use of TAR in arbitral e-disclosure be left entirely to party agreement? Or is such preliminary delegation  simply a convenient way for arbitrators to steer clear of unfamiliar and challenging terrain? This…
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Let’s have a show of hands. All in favor of the following proposition:              A U.S. District Court In An Award Enforcement Case Should Decide      If European Union Law Invalidates the Jurisdiction of An Arbitral Tribunal Under the Energy Charter Treaty Too puzzled to cast a vote?  Then read on. This question came to my attention when I heard at a recent arbitration conference that at least three, perhaps four, US district court judges (three in Washington, one in New York) have been asked recently to decide this question, and are either puzzling over it now or waiting for…
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In celebration of the recent publication (November 30, 2018) of important sections of the American Law Institute’s Restatement (Second) of the U.S. Law of International Commercial and Investment Arbitration (in an as yet not formally ALI-approved Council Draft), concerning the topic of the issue preclusive (collateral estoppel) effect of international arbitration awards in later US litigation, today’s post will report upon findings of a brief excursion into recent US federal case law to see what the courts have actually been doing in this area. As a foundation for the reader’s appreciation of this report, it seems to suitable to set…
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