Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

October 31, 2014

Coping With The Party Boycott

An occasionally encountered problem in international commercial arbitration is the Party Boycott. I will use that term here to refer to the situation where a Respondent in a pending arbitration registers its objection to arbitral jurisdiction systematically through a two-pronged strategy: (1) seeking an anti-arbitration injunction in a friendly court, and (2) refusing any participation in the arbitration itself. Formation of the Tribunal When the Tribunal is to be formed according to a list procedure by the administering institution, the Boycotting Party’s refusal to strike-and-rank the listed candidates typically entails that the institution will select the arbitrator or arbitrators. (As…
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October 31, 2014

Food for Thought on Equitable Estoppel of Nonsignatories

Among the common law theories in American law that may permit enforcement of an arbitration clause against a non-signatory, equitable estoppel is perhaps the most elusive. Its application is intensely fact-dependent, and different sets of equitable considerations apply depending on whether the party seeking to invoke arbitration is the non-signatory or the signatory. And when the matter comes before an American court, this is essentially a question of state law, and different states have different refinements of the conduct standards that may trigger estoppel as well as variations in the evidentiary burden that the party invoking estoppel must satisfy. These…
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September 02, 2014

Back From The Beach: Did You Brush Up Your Bazzle?

Before the author of Arbitration Commentaries was deployed to the trenches and thus temporarily lost to his readers (some would say mercifully), it was written in this c-space that the “Next Cool Thing” in U.S. arbitration jurisprudence, after BG Group v. Argentina, would be the question of who decides — court or arbitrator — whether an arbitration clause permits class arbitration, when the parties have no agreement on the “who decides” question itself. See “Brush Up Your Bazzle,” Arbitration Commentaries, July 1, 2014.  A four-judge plurality of the Supreme Court in Bazzle was prepared to hold that the question of…
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September 02, 2014

More Difficulty With Arbitral Subpoenas

The use of subpoenas by arbitrators pursuant to Section 7 of the Federal Arbitration Act remains an evolving area of arbitral practice. There are several sources of difficulty. One is how to adapt the language of a 1925 statute to complex and multinational disputes. Another is that arbitral subpoenas shall be judicially enforced with reference to judicial rules of procedure governing compulsion of the attendance of witnesses. A third issue is how technology and especially video technology should affect the ability to secure evidence from an individual who resides very far from the seat of arbitration and sometimes overseas. Suppose…
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July 01, 2014

Brush Up Your Bazzle

If you don’t remember Bazzle, you had best put it on the beach-and-boat-reading list. Come September, you will need to know it well for survival at every luncheon and cocktail reception on the arbitration circuit. Why? Because the Next Cool Thing in US arbitration law, now that BG Group v Argentina is just . . . So Last Term, is the question whether interpretation of the arbitration agreement to determine if it permits class arbitration presents a “gateway” issue of (or akin to) “arbitrability” that a court not an arbitrator should, presumptively and thus quite often,  decide. In Bazzle (Green…
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June 25, 2014

Some Thoughts On Improving the Arbitrator Vetting Process

All of you who have not heard or read about publication of commercial arbitration awards in the last six months, please raise your hands. …. I see just one or two hands, all the way in the back of the classroom.  Yes, this seems to be a hot topic. An important element of the multi-faceted conversation about publication of awards (and other arbitral decisions) concerns whether the arbitrator(s) who authored the awards should be identified in the publication. Let’s call that Identity Transparency.  An argument in favor of Identity Transparency is that parties will make more intelligent selections of arbitrators,…
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