Recent Posts

October 29, 2012

Deference to Arbitral Jurisdiction Rulings: What If Any Limits?

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’ decisions about the merits of the dispute. (Morgan Keegan & Co. v. Garrett, 2012 WL 5209985 (5th Cir. Oct. 23, 2012). Here the arbitration was brought by 18 investors in a mutual fund, each of whom had signed a client agreement providing for arbitration under…
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August 08, 2012

Where Shall Arbitration Be Compelled If the Agreement Is Unclear: Searching for a Better Solution

Poorly drafted international arbitration clauses often challenge US courts to find pro-arbitration solutions that meet the needs of the parties and are practicable within the bounds of the New York Convention and the FAA. That struggle was on display again recently in a case decided by the US Third Circuit Court of Appeals (Control Screening LLC v. Technological Application & Production Co., 2012 WL 3037824 (3d Cir. July 26, 2012).  Here a “pathological” arbitration clause identified a non-existent European arbitration institution, and the Court’s solution was to require arbitration in New Jersey, home turf of one of the parties, even…
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July 31, 2012

Revisiting Second Circuit Arbitrability Jurisprudence: A Midsummer Night’s Dream?

Some segments of the international arbitration community (particularly those spending their summer holidays in the Blogosphere), are abuzz with speculation that the US Second Circuit Court of Appeals may reconsider its jurisprudence concerning the arbitrability of arbitrability in a case called Thai-Lao Lignite (Thailand) Co. Ltd. v. Gov’t of the Lao People’s Democratic Republic, 2012 WL 2866275 (2d Cir. July 13, 2012) (summary order affirming district court order granting confirmation petition and denying motion to vacate award). A petition for rehearing en banc has been filed by the appellant Government of Laos, challenging the Court’s position that the parties’ agreement…
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July 23, 2012

Pockets of Resistance Remain on Enforcing Agreements to “Arbitrate Arbitrability”

In various posts on this site over the three-plus years of its existence, Arbitration Commentaries has reported on court decisions that recognized the power of an arbitrator to decide “arbitrability” questions when the arbitration agreement calls for arbitration under rules that confer power on the arbitral tribunal to decide upon objections to its jurisdiction. Last week the US Fifth Circuit Court of Appeals joined forces with at least the First, Second, Eighth, Eleventh and Federal Circuits, in holding that when parties agree to arbitrate under such rules, there is “clear and unmistakable evidence” that they have agreed to arbitrate arbitrability….
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July 17, 2012

US Court Upholds Arbitrability of Cross-Border Insurance Dispute, Rejects “Reverse Pre-emption” of New York Convention

If you practice arbitration law internationally from a base of operation outside the United States, you might consider that the arbitrability of cross-border disputes involving insurance is rather non-controversial. After all, arbitration lawyers wish to have large and growing practices, and insurance disputes help enormously. Simple. You would think. But here in the United States, with our great legal tradition of making simple matters difficult, this subject is fertile ground for controversy, large legal fees, and lengthy opinions from appellate courts. To understand this quagmire, readers might study ESAB Group, Inc. v. Zurich Insurance PLC, 2012 WL 2697020 (4th Cir….
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July 02, 2012

Eleventh Circuit Ruling that Section 1782 Applies to Private Arbitral Tribunals Adds to Controversy

Should we rejoice or commiserate over the decision during the past week, by a panel of the US Eleventh Circuit Court of Appeals, holding that a party to a domestic arbitration in Ecuador could obtain US discovery for the Ecuador case pursuant to Section 1782 of the US Judicial Code? (Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2012 WL 2369166 (11th Cir. Jun. 25, 2012)).  Surely litigation lawyers in Florida will be pleased, as the news will spread rapidly in Central and South America, and whereas US sources of evidence for Latin arbitrations are somewhat more likely…
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