One of the larger waves crashing on the shores of international arbitration as the result of the Restatement (Third) of the Law of International Arbitration is the position — clearly restating existing law — that the grounds stated in Article V of the New York Convention for refusal of recognition of an award should be [...]
Sometimes obscured in the conversation over whether Section 1782 of the U.S. Judiciary Law even applies to private international commercial arbitration is the question of whether such judicially-enabled discovery offends core values of international arbitration – intruding upon the arbitrators’ control over the proceedings, and tilting an initially level evidence-gathering playing field in favor of [...]
Today’s topic is the power of a US District Court, if any, to reconsider its recognition and enforcement of a foreign arbitral award governed by the New York Convention when, after giving a judgment confirming the award here in the U.S., the award is vacated by a competent court at the foreign seat of the [...]
Does an arbitrator exceed her powers when, as a remedy for fraud in the inducement of a limited-duration intellectual property license, she modifies the contract “as a matter of law” to provide the licensor with a perpetual royalty-free license? The U.S. Fifth Circuit Court of Appeals, reversing a Texas district court’s vacatur order, held that [...]
Evidently undaunted by the Second Circuit’s dismissal of an award confirmation case on grounds of forum non conveniens (Figueiredo Ferraz E Engharia de Projeta Ltda. v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011)) — or at least convinced of the Figueiredo panel majority’s idiosyncratic take on the “public interest” factor in forum non [...]
It has been nearly 45 years since the Supreme Court of the United States decided the Commonwealth Coatings case (Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968)) and addressed for the only time in its history the meaning of the term “evident partiality,” which appears in Chapter One of the FAA as [...]
Some rules and principles relating to enforcement of international arbitration awards are essentially matters of common sense. Foremost among them are rules relating to the currency of judgments enforcing awards, and post-award interest. But as they are not often the subjects of reasoned judicial decisions, it is useful to take note when well-reasoned decisions come [...]
This commentator apologizes for his prolonged absence, explained largely in two words: provisional relief. In the representation of the Claimant in an ICDR arbitration seated in New York, there has been occasion to apply successfully for (i) judicial Mareva freezing orders in aid of arbitration in three foreign jurisdictions, (ii) an ICDR Emergency Arbitrator’s Partial Final Award directing access [...]
In a recent case, the removal of an action from state to federal court based on Chapter Two of the FAA (Section 205) and the New York Convention raised a question that puzzles this writer but evidently did not cause any hesitation for the US Second Circuit Court of Appeals. The question: does such removal [...]
Add the US Fifth Circuit Court of Appeals to the roster of federal jurisdictions that, like the Second Circuit, hold that when an arbitration agreement adopts rules that empower arbitrators to resolve disputes over the scope of arbitrable issues, the arbitrators’ decision on that matter receives the same very high level of deference as arbitrators’ [...]