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Arbitral Determinations of Arbitrability

Courts continue to struggle with the question of how to allocate, between judges and arbitrators, power to decide questions of arbitrability (including the existence, vel non, of a valid agreement to arbitrate). The difficulty is acute in international arbitration cases where recognition and enforcement are sought under the New York Convention and its statutory implementing […]

Arbitral Power to Award Fees As Sanctions

When the arbitration agreement states that each party shall bear its own legal fees, do the arbitrators have authority to award legal fees as a sanction for bad faith conduct in the arbitration? In a recent case in New York, two federal judges said yes, and two said no. But the two votes in favor […]

Attachment in Aid of Convention Award Enforcement

A U.S. District Court judge in San Francisco recently granted an order of attachment, in aid of enforcement of the award of the ICC tribunal seated in Stockholm. Recognition and enforcement in the U.S. court were therefore governed by the New York Convention and Chapter Two of the Federal Arbitration Act. The Court’s opinion is […]

Arbitration Clause Held Null and Void Due to Conduct Waiver

Federal district courts have ample power to dissolve a stay of proceedings pending arbitration, and order the parties to proceed with the litigation, where the party that initially invoked arbitration thereafter acts systematically to prevent the arbitration from taking place. A recent federal district court decision makes these powers clear. In Apple & Eve, LLC […]

Return

Dear Readers I apologize that there have been no new postings between April 2 and today’s date. In the interim, I prepared for the trial of an international commercial case governed by the UN Sale of Goods Convention (CISG), which was pending in the U.S. District Court for the District of New Jersey. With active […]

Supreme Court Decision on FAA Appeals

The Supreme Court of the United States has held that any litigant –-whether or not a signatory of the agreement to arbitrate — who suffers denial of an application to stay the litigation pending arbitration, is entitled to an interlocutory appeal of that order. Section 16(a)(1) (A) of the Federal Arbitration Act, the Court held, […]