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Arbitration Commentaries has written on more than one occasion on the question, not consistently decided in the US courts, of whether the Federal Arbitration Act (“FAA”) provides authority for a federal court to enjoin a pending arbitration. In a significant recent decision, the US Second Circuit Court of Appeals affirmed a District Court’s order enjoining an arbitration, but did so based on analysis that clearly stops short of saying that an action to enjoin arbitration is an implied cause of action conferred by the FAA. (In Re American Express Financial Advisors Securities Litigation, 2011 WL 5222784 (2d Cir. Nov. 3,…
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In a dream last night, YOU, Dear Wing, received an email from the Chair of the Tribunal, “Re: New Case”: “My Dear Colleague X: I am serving as a Wing in a recently filed ICC Arbitration with an amount in dispute in excess of US $3 Billion. Together with my Fellow Wing Ms. Z, who knows and admires you, as I do, we are charged with the joint selection of the Chair. I would like to put your name forward if OK. The parties and counsel are completely different from our current case together and there is no subject matter…
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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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Here in common law America we do not have much direct and systematic discussion about when and under what conditions international arbitrators may or should conduct their own legal research to ascertain or clarify the applicable law that they should apply. We have a passing familiarity, from contacts with our civil law colleagues, with the civil law term iura novit curia (literal translation, “the judge knows the law”). But the reality is that some American international arbitrators consider the law to be what is found in bound volumes of submissions (briefs and authorities) presented by the parties, while others consider…
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