Recent Posts

January 15, 2012

An Appellate Rescue for the New York Convention

The US Court of Appeals in Washington, DC holds that the New York Convention supplies the exclusive grounds for a federal district court to adjourn an award confirmation proceeding, and that such grounds do not include a pending proceeding to nullify the award against a foreign State, in its courts, when that State was not the place of arbitration. Not new news you say — quite rightly. But yesterday’s decision by the DC Circuit (Belize Social Development Ltd. v. Government of Belize, 2012 WL 104462 (D.C. Cir. Jan. 13, 2012), is significant for at least two reasons. First, the federal…
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January 03, 2012

What Role for the Courts in Consolidating Related Arbitrations?

Under US arbitration law the question of whether multiple arbitration claims may proceed on a consolidated (or class) basis may well be a question for determination by the arbitral tribunal in the first instance. A recent decision from the US Seventh Circuit Court of Appeals, refusing to rule on the consolidation issue, and thus leaving that question to the arbitral tribunal, reminds us that the procedural posture in which the question is presented will often determine where the power to decide will reside. In Blue Cross Blue Shield of Massachusetts, Inc. v. BCS Insurance Co., 2011 WL 6382203 (7th Cir….
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December 22, 2011

What Basis for Judicial Power Over Counsel Ethics in Arbitration ?

The point of departure for today’s discussion is a pair of decisions by a respected federal district judge in New York, one granting a motion to disqualify counsel in a pending arbitration and the other denying reconsideration of the first decision. The misconduct involved was rather troubling: in a reinsurance arbitration apparently under AAA Commercial and ARIAS Rules, a party-appointed arbitrator resigned in ostensible protest of bias on the part of the other party-appointed, and then proceeded to share covertly with his appointing party’s counsel nearly 200 emails among members of the Tribunal, with the intent of helping that party…
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December 19, 2011

The ‘New York Version’ of the New York Convention: Forum Non Conveniens Again Applied to Refuse Recogntion

Arbitration Commentaries wrote several months ago that the US Second Circuit’s decision in the 2002 Monegasque case (Monegasque de Reassurances S.A.M. (Monde Re) v. NAK Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002)) — holding that the forum non conveniens (“FNC”) doctrine of discretionary dismissal applies to New York Convention summary confirmation proceedings — was a questionable precedent that is ripe for reconsideration.  (See “Denial of Award Enforcement Under Article III ‘Rules of Procedure’: An Expanded Commentary on Zeevi Holdings v. Republic of Bulgaria, Arbitration Commentaries, Apr. 26, 2011). It was argued here (by no means as a new…
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December 14, 2011

Choosing the Unchosen Seat of Arbitration: Coping With FAA Dysfunctionality

Today Arbitration Commentaries writes in praise of a federal district judge in San Francisco, for rejecting a too-clever-by-half arbitration-avoidance argument: that a professed willingness to arbitrate, but only in a particular venue not specified in the contract, is not a “refusal” or “failure” to arbitrate under the Federal Arbitration Act. (Beauperthuy v. 24 Hour Fitness USA, Inc., 2011 WL 6014438 (N.D. Cal. Dec. 2, 2011).  The Court decided that this position was indeed a “failure” and “refusal” to arbitrate under Section 4 of the FAA — as it leads to paralysis rather than a launched arbitration. Accordingly, the court entered an…
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November 30, 2011

Choice of Law Governing Arbitrability: A US Court Faces a Perennial Conundrum

The question of what law is to be applied to determine the existence, validity, or scope of a purported agreement to arbitrate between parties from different nations (and subsidiarily, how the answer might depend on whether the question is presented to a court or an arbitral tribunal) has long attracted considerable attention in the scholarly literature of international arbitration. But American doctrine on the subject is hard to find, there being rather few judicial decisions addressing the question in a systematic way.  So a decision on this question from a US Circuit Court of Appeals (Cape Flattery Ltd. v. Titan…
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