Recent Posts

April 09, 2012

Third Circuit Ruling Shows Vitality of Commercial Class Arbitration After Stolt-Nielsen

That class arbitration in a commercial context remains viable after, and perhaps despite, the Supreme Court’s 2010 decision in Stolt-Nielsen S.A. v. Animalfeeds Int’l, Inc. (130 S.Ct. 1758), was demonstrated again last week in a decision of the US Third Circuit Court of Appeals. The Third Circuit affirmed a district court ruling that denied vacatur of an arbitrator’s award permitting class arbitration between the Oxford managed care network and a class of doctors on whose behalf the Claimant brought the case under his individual reimbursement contract with Oxford. (Sutter v. Oxford Health Plans LLC, 2012 WL 1088887. (3d Cir. April…
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April 04, 2012

British Columbia Court of Appeal Rules in Favor of Expeditiousness and Finality of Arbitration

  With this post, Arbitration Commentaries begins a new initiative to bring its readers reports on noteworthy arbitration law and practice developments in important jurisdictions outside the United States. In this commentary, Barry Leon, Chair of the International Arbitration Practice Group at Perley, Robertson, Hill & McDougall LLP in Ottawa, Canada (www.perlaw.ca ), and John Siwiec, an associate in that Group, report on a significant recent case from the British Columbia Court of Appeal on the importance of arbitration being expeditious and providing finality — an important appellate court policy pronouncement at a time when users of arbitration, arbitral institutions and…
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April 04, 2012

Failure to Address Currency Conversion During Arbitration Haunts Award Creditor in U.S. Confirmation Case

Exchanges rates and interest rates are interesting, and important, especially in high-value cases. So one might suppose that a (nominally) Nigerian company involved in a high-stakes London-based arbitration against the Government of Nigeria, and anticipating that it might seek recognition and enforcement of the award elsewhere than in Nigeria, would have given attention during the arbitration to (i) the proper currency of the award, (ii) the convertibility of the award currency into the currency of the enforcing jurisdiction upon entry of judgment confirming the award, (iii) the relevant reference date for currency conversion and (iv) the applicability of the interest…
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March 26, 2012

The Persistent Problem of the “Truncated Tribunal” Washes Ashore in New Orleans

The persistent problem of what may be called the “party-disabled arbitrator”  and the resulting “truncated tribunal,” especially in arbitrations involving States, surfaced this month in a federal district court decision from New Orleans.  The party-disabled arbitrator begins the proceedings as the party-appointed arbitrator, but at some point the party determines that its interests are best served by attempting to obstruct the functioning of the tribunal by interfering with the ability of its party-appointee to continue to carry out his or her mandate.  (For a long historical view of the problem, see Judge Stephen Schwebel’s treatment in the 1994 Lord Goff lecture, “The…
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March 20, 2012

Dismissal of Confirmation Cases for Lack of Personal Jurisdiction: An Avoidable Problem

Each time a US court declines to entertain a petition to confirm a foreign arbitration award, there are at least two questions that we as practitioners in the field should ask: (1) Was the Court’s decision correct?; and (2) What lessons can we learn from the experiences of the parties that we can use as arbitrators or as counsel?  Last week a Federal District Court in New Orleans denied the petition of a group of American companies to obtain confirmation of an award made in consolidated London arbitration proceedings against a shipbuilding firm domiciled in China.  The Court held that…
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February 29, 2012

DC Circuit’s Iran Decision Spurns Invitation to Fashion Federal Common Law Expropriation Claims

For those whose careers in international arbitration have origins connected to the Iran-US Claims Tribunal (Tribunal) — and I am one of many — yesterday’s decision by the federal court of appeals in Washington, allowing a US company to recover damages for expropriation from the Islamic Republic of Iran under the 1955 US-Iran Treaty of Amity, as interpreted under Iranian law, resonates like a fondly-remembered ballad from the American Songbook. (McKesson Corp. v. Islamic Republic of Iran, 2012 WL 615831 (D.C. Cir. Feb. 28, 2012)). I leave it to others to consider the potential for future US litigation against Iran…
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