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Justice Kagan and the Kindred Spirit

Surely you sometimes wonder why Elena Kagan is a Justice of the Supreme Court and a former Dean of the Harvard Law School, while you, on the other hand, plod along in your quotidian existence as a world-renowned, universally-esteemed, brilliant and magnificently accomplished international arbitrator.  Well, you should read Justice Kagan’s masterful opinion for the […]

What We Learn from the Suez/Vivendi v. Argentina Non-Annulment (2) — Greener Grass in More-Favored Nations

You are not finished learning from the ICSID annulment committee’s non-annulment of the Suez/Vivendi v. Argentina award, at least not if you actually read these posts (a covert activity that leaves cookies, and suggests you probably did not heavily annotate the latest issue of the ICSID Review). Some number of you will remember that Argentina […]

Hot Off the Press ….

Some of you, gluttons for punishment, demand longer, more heavily-annotated versions of these usually short and mainly citation-free posts. Trying to oblige, I draw your attention to: “A Glance Into History for the Emergency Arbitrator” just published in the Fordham International Law Journal as part of the collection of papers presented at the Fordham Conference […]

What We Learn from the Suez/Vivendi v. Argentina Non-Annulment (1) — Arbitrator Disclosure

Engaging in imitation as a sincere form of flattery I begin this post with a warning: very short post, as your author on May 8 is already a week overdue to you, and is threatened with duties not consistent with his devotion to you for the next two weeks. So, let us consider, quickly and […]

In Praise of Small Edits in the ICC Rules!

This month Arbitration Commentaries applauds the ICC for a small but valuable edit made in Article 6(3) as part of the ICC Rules revisions that became effective March 1, 2017. This edit, as explained below, is likely to fix a recent small dent in the armor of compétence-compétence in the US courts. In a recent […]

Crystallex, Crystallized

Specialists of investment arbitration practicing beyond US borders shall take comfort from the decision of a US District Judge in Washington DC confirming a Canadian mining investor’s $1.2 billion award against Venezuela for expropriation and denial of fair and equitable treatment, under the Canada-Venezuela bilateral investment treaty. (Crystallex International Corp. v. Bolivarian Republic of Venezuela, […]

Parsing Protective Orders

Party autonomy and American litigation custom sometimes collide in disconcerting fashion in arbitrations involving American counsel, whether international or domestic. One such collision involves the establishment early in the case of an agreed or imposed order concerning the confidentiality of exchanged information (“Protective Order”).  The parties have an understandable desire for formal confidentiality restrictions applicable […]

Pursuing Alter Egos of the Convention Award Debtor

After the decision of the US Second Circuit Court of Appeals in the Gusa case (CBF Industria De Gusa S/A v. AMCI Holdings, Inc., 846 F.3d 35, 2017 WL 191944 (2d Cir. Jan. 18, 2017)), there is much to know about enforcing foreign arbitral awards against alter egos of award debtors that we did not […]

A New Golden Age For Section 1782?

Received wisdom in selecting an arbitration seat, if the goal is arbitration unencumbered by “American-style discovery,” is to avoid America. Today we take a close look at one factor in that supposedly common calculus — obtaining evidence from non-parties. In an arbitration seated in London (or elsewhere beyond US borders), pre-hearing discovery in the United […]

Yukos: Worth the Wait for the Dutch Appeal

Just when you thought you knew what you needed to know about enforcement (or not) of annulled foreign awards, along comes the Yukos case in yet another chapter. This one is entitled What to Do While We Wait for the Dutch Appeal?. It is written by a US District Court judge in Washington DC. And […]