Marc J. Goldstein Arbitrator & Mediator NYC

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March 05, 2019

TAR: How Shall We Treat This Sticky Subject?

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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Recent Posts

January 15, 2019

Suspended in Sweden: The Achmea Controversy Visits Washington

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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December 11, 2018

Issue Preclusion in the Holiday Season

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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October 30, 2018

When Is Arbitral Jurisdiction Over Non-Signatories Delegated To the Tribunal?

At a recent gathering of arbitration lawyers that I attended, the leader of a seminar concerning the arbitration rights and duties of non-signatories asked if anyone in the audience disagreed with the proposition that under US arbitration law it is for the courts not arbitrators to decide whether and when a non-signatory may or must arbitrate. Not being totally at ease with the stated categorical proposition, I ventured the comment that the delegation of arbitrability issues to arbitrators pursuant to the “First Options” case law may operate as an exception to that rule, and potentially a rather broad exception at…
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October 03, 2018

Litigation Conduct Waivers and the New York Convention

Today’s post concerns waiver of the right to arbitrate by an ambivalent plaintiff in a US District Court, and under what conditions it might be appropriate for a US District Court, applying the New York Convention and FAA Section 206 (governing motions to compel arbitration under arbitration agreements covered by the Convention), to decide that such a waiver by virtue of the litigation conduct of the plaintiff renders an arbitration agreement “null and void” (or “inoperative”) under Article II (3) of the Convention*. Every sermon needs its text, and today our text is a recent case from Silicon Valley: Hebei…
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September 11, 2018

New US Law Uncertainty About Nonsignatories

The New York Convention mandates that an “agreement in writing,” as defined in Article II (2), shall be recognized by Contracting States, and that the court of a Contracting State shall refer the parties to arbitration when there is an action before the Court as to which such an agreement has been made. (Article II, subsections (1) and (3)). But if a US District Court has subject matter jurisdiction based on FAA Chapter Two (implementing the Convention), is an “agreement in writing” as defined in Article II the only form of arbitration agreement the Court may enforce?  A decision at…
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July 05, 2018

Our “Notions of Morality and Justice”: How “Basic” Must They Be?

Imagine with me, readers: A sovereign foreign State — India, for the sake of discussion — attracts the interest of a US enterprise to conduct a search for offshore hydrocarbon deposits and, if any are located, to determine their commercial viability. The State cedes aspects of its sovereignty contractually, in a number of ways. First, it gives the exploration outfit rights of occupancy for exploration purposes on a defined block of the State’s offshore waters. Second, it extends the period of the concessionaire’s right to be physically present on the block for an agreed period after hydrocarbon discovery in order…
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