Marc J. Goldstein Arbitrator & Mediator NYC

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August 16, 2020

Summer on Georgian Bay

With the northern border closed except to Essential Workers, which You, sorry to say, are NOT, these are challenging times to know what’s really going on Up There in the Great White North. OK, you can binge-watch Bubble Hockey from Toronto and Edmonton. In a timeout You might catch a stirring glimpse of Lake Ontario at sunset, or a mild-mannered Albertan Black Bear seeking entry to the ice arena without a mask. 🐻 😷. But what you really crave is news of what’s happening with NAFTA (USMCA) arbitration. Arbitration Commentaries is here to help. The case that motivates this post…
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Recent Posts

July 07, 2020

Please Be Seated

Some of you know that the editorial staff of Arbitration Commentaries has a soft spot in its heart for stories about changing the place of arbitration. And now, just in time for your beach reading (masked, distanced, and only if your beach is open), comes a new tale – or perhaps one should say a new installment of a melodrama that goes back two decades. It involves a certain Sovereign State in South America that, of late, struck out trying to swing a withdrawal of its own gold from the Bank of England. But the judicial activity that motivates this…
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April 03, 2020

Nigerian Rhapsody

Let’s talk today about enforcement in New York of arbitral awards annulled in Lagos, Nigeria. Big ones. USD $2 Billion, give or take. I know, you think you have heard and read enough about this topic. But really, where are you going to go today? Wash your hands and read on. The scripture for today’s sermon is a judgment of the US District Court for the Southern District of New York, now in the throes of an appeal before the US Second Circuit Court of Appeals, in Esso Exploration & Production Nigeria Ltd. v. Nigerian National Petroleum Corp., 397 F….
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November 09, 2019

Monstrous

If you are learning here for the first time that a divided panel of the US Ninth Circuit Court of Appeals vacated an arbitration award, on the Federal Arbitration Act ground of “evident partiality,” rendered in a JAMS arbitration by a retired California trial judge who had served as a JAMS arbitrator in over 1500 cases since 2000 (Monster Energy Co. v. City Beverages, LLC, 2019 WL 5382062 (9th Cir. Oct. 22, 2019)), perhaps you have been diverted to a lengthy hearing or a languorous holiday. Before I elaborate, to explain why the Ninth Circuit took umbrage at the arbitrator’s…
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August 28, 2019

Arbitral Method on Corruption: Another Installment

There are a variety of ways you might attempt to learn more than you already know about how international arbitrators handle allegations of corruption that are presented as claims or defenses in a pending case. You might sign up for a conference and, at some expense, hear condensed remarks by very knowledgeable individuals who have participated in such cases as counsel or arbitrators (e.g. a one-hour session at the ICC event in New York on October 4, from 2:30 to 3:30 p.m.). You might download the GAR “tool kit” on corruption. (I will). You might download a recently published arbitral…
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August 28, 2019

Who Decides Who Decides? – The Turf War Continues

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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June 27, 2019

Distilling the Arbitral Law of Corruption

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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