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Unconscionability of Class Action Waivers: Who Decides?

Recently the US Third Circuit Court of Appeals, sitting en banc on its own motion, held that when a motion to compel arbitration is opposed to the extent that the arbitration clause bars class actions, the District Court must resolve the challenge to the class action prohibition, and not refer that issue to the arbitrator. […]

Canada’s Supreme Court Applies Alberta’s General Two-Year Limitations Period for Civil Actions to Proceedings to Enforce Foreign Arbitral Award

Yesterday the Supreme Court of Canada held unanimously that Alberta’s two-year Statute of Limitations applicable to actions seeking “remedial orders” applies to an action for recognition and enforcement of certain foreign arbitral awards.  The consequence was to affirm judgments of the Alberta trial and appellate courts that had dismissed as time-barred the application of a […]

More Support for Limiting Arbitral Subpoena Power

A federal magistrate judge in Chicago last week quashed an arbitrator’s  subpoena for the pre-hearing deposition of a non-party witness, citing with approval decisions of the Second, Third, and Fourth U.S. Circuit Courts of Appeal  that interpret Section 7 of the Federal Arbitration Act to permit an arbitrator to subpoena witnesses only to appear before […]

More Fuel on the Fire Concerning Section 1782 in Arbitration

Last week a federal district court judge in New York granted an application made by Chevron Corporation, pursuant to 28 U.S.C. Section 1782, to obtain discovery from a non-party in the United States for use as evidence in a ICSID arbitration between Chevron and the Republic of Ecuador. (In re Application of Chevron Corp., Misc. […]

Court Injunction Against FINRA Arbitration Again Denied

I have reported on three recent occasions concerning judicial decisions on arbitrability in the context of FINRA arbitrations. FINRA is the Financial Institutions Regulatory Authority, successor to the National Association of Securities Dealers, the principal self-regulatory organization of the financial services industry. In yet another such case, a New York federal judge last week denied […]

Interim Measures: Renewed Stringency in U.S. Injunction Standards

Arbitration practitioners should take note of a trend toward renewed stringency in U.S. judicial application of historical equitable standards for the granting of preliminary and permanent injunctions. The trend is most recently reflected in an important copyright law decision from the US Second Circuit Court of Appeals, discussed today in a new posting that will […]

Securities Fraud Update at Lexmarc.US

Those of you who follow developments in U.S. securities litigation may wish to read my commentary on a recent Second Circuit decision concerning liability of professionals for fraudulent statements of their clients. www.lexmarc.us