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Confidentiality of Settlement Communications in the Arbitral Context: Thoughts Motivated by a New UK Decision

The decision earlier this week of the UK Supreme Court, that facts disclosed in confidential settlement discussions are admissible to interpret the settlement agreement achieved (Oceanbulk Shipping & Trading SA v. TMT Asia Ltd. & Ors, [2010] UKSC 44 (27 October 2010)), may contribute in a useful way to current discussions about ethical rules of […]

Arbitrability Appeal Mooted By ICC Tribunal’s Jurisdiction Award, Third Circuit Holds

Just when you thought the day would never return when a U.S. court would actually show deference to a foreign arbitral tribunal on an issue of that tribunal’s jurisdiction, along comes a new decision of the U.S. Third Circuit Court of Appeals in Philadelphia, holding that an appeal before it on such a jurisdiction issue […]

Another Look at Competence-Competence American Style

Under compétence-compétence, American style, nothing may be arbitrated if there never was a contract. We were reminded of this last week, when a federal judge in Manhattan (i) denied a motion to compel arbitration, and (ii) refused to stay its own proceedings pending the decision of an ICC arbitral tribunal in London on the contested […]

Some Thoughts on Arbitral Choice of Law Regarding the Attorney-Client Privilege

International arbitrators are regularly called upon to resolve disputes over the application attorney-client privilege between parties from different countries that have fundamentally different rules concerning the existence and scope of the privilege. When one of the parties is a corporation from a civil law jurisdiction in Europe, or from an Asian nation, the legal function […]