Recent Posts

December 01, 2013

The Duty to Disclose Friendship

Little actual intelligence is available about the decisions of arbitral institutions on challenges to arbitrators. Arbitral institutions tend not to elaborate their procedures for ruling on challenges in their Rules or their publications. And the great majority of the more prominent institutions, probably accounting for a majority of international commercial arbitrations by volume of commerce if not sheer number of cases, do not issue reasoned decisions on challenges and do not publish summaries of their decisions for consumption by practitioners. These features of the arbitration landscape regularly draw criticism, but attract little reform.  The London Court of International Arbitration has…
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November 23, 2013

Getting Ready for the Big Game: A BG Group Preview

All over Arbitrationland, workers are coming off their shifts, feeding their children, walking their dogs, donning their Team Colors — making all final preparations for the Big Game, BG Group v Argentina, to be played December 2 at 10:00 a.m. US East Coast Time, at a neutral venue near Union Station in Washington, D.C. Rabid fans are clamoring for invitations to the best BG Case parties. Party hosts are stocking up on Beef Empanadas and Guinness. Argentina has been on a bit of a winning streak in this long-standing rivalry, masterfully running the First Option(s) offense* with Kaplan, its star…
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November 02, 2013

Judicial Attention to the Powers of Emergency Arbitrators

Is emergency arbitral relief granted by an emergency arbitrator inherently provisional, and therefore not final, and therefore beyond the powers of the emergency arbitrator insofar as the relief ordered would require a party to do something with irreversible consequences, and, finally, not capable of judicial recognition as an Award because of its necessarily provisional nature, being subject to modification by the regular arbitral tribunal in due course? This week’s answers are no, no, no, and no. (Yahoo!, Inc. v. Microsoft Corp., 2013 WL 5708604 (S.D.N.Y. Oct. 21, 2013)).  But tune in again next week. The case will be argued in…
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October 30, 2013

Consumer Arbitration Unconscionability Trumps FAA Pre-Emption in Ninth Circuit Once Again

A California grocery chain, presumably emboldened by Supreme Court decisions that appeared to sustain corporate arbitration policies used to stifle consumer and employee class actions, took a gamble and, at least in the U.S. Ninth Circuit Court of Appeals, lost. This grocer fashioned an arbitration policy, imposed on applicants for employment as a condition for receiving their applications, that: (1) ensured that when an employee demanded arbitration, the grocer would pick the sole arbitrator, and (2) required the arbitrator to obtain advance deposits in equal shares from employee and employer at the start of the arbitration, with no prospect of…
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October 15, 2013

Protecting Arbitral Jurisdiction of The Merits With a Foreign Anti-suit Injunction

The pro-arbitration foreign anti-suit injunction is not mentioned in the text of the New York Convention or the U.S. Arbitration Act (FAA). But its importance to the enforcement of agreements to arbitrate transnational disputes is considerable. To be reminded of this, read a recent New York federal district court decision granting such an injunction: Bailey Shipping Ltd. v. American Bureau of Shipping, 2013 WL 5312540 (S.D.N.Y. Sept. 23, 2013). Or continue reading this Commentary. A definitional note is a useful place to begin. This brand of injunction is “pro-arbitration” because it is granted to protect the jurisdiction of the arbitral…
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September 30, 2013

US Law of Foreign Investment Retains Vitality Where BIT Is Absent

The denunciation in early 2012 of the ICSID Convention by the Venezuelan government of the late Hugo Chavez left some US energy sector investors unaffected, as Venezuela had never seen fit to make a bilateral investment treaty with the United States that would have enable US investors to access ICSID arbitration via a US BIT. And in the absence of an investment treaty to channel disputes into arbitral tribunals, it was predictable that the nationalist economic policies of the Chavez government would attract some afflicted investors to try their luck bringing suits against Venezuela in US federal courts. For those…
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