Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

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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February 20, 2012

E Mail Contracting and the “Agreement in Writing” Requirement of the New York Convention

1999 was not so very long ago. And over the last dozen years some areas of the law have necessarily moved rapidly to keep pace with developments in technology and their impact on how business is conducted.  That has not necessarily been the case in every corner of the law of international commercial arbitration.  Until a few weeks ago, counsel looking for guidance in US law on the “agreement in writing” requirement of the New York Convention could read, unhelpfully, a 1999 decision of the US Second Circuit Court of Appeals in Kahn Lucas Lancaster, Inc. v. Lark International, Ltd.,…
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February 08, 2012

US Second Circuit’s View of “Evident Partiality”: Out of Synch With International Practice?

A tale from the Second Circuit: Two reinsurance executives regularly sitting as arbitrators were appointed, respectively, as party-appointed arbitrator and “umpire” (presiding arbitrator) in a reinsurance arbitration. While the case was pending but before the hearing, the same individuals were appointed, again as party-appointed arbitrator and umpire, in a second arbitration that bore certain relationships to the first. There was a similar but not identical issue of contract interpretation. There was a common witness whose testimony was important in each case. And there was a business connection, essentially successorship, between Claimant in Arbitration 1 and Respondent in Arbitration 2. These…
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January 31, 2012

Second Circuit Explains Decision to Vacate Chevron’s Global Anti-Enforcement-of-Judgment Injunction

Last year Chevron, as judgment debtor for a $17.2 billion environmental damages judgment issued by an Ecuador court, convinced a US district judge in New York to issue a global anti-enforcement injunction preventing the Ecuadorean parties from seeking enforcement of that judgment anywhere.  Late last year the US Second Circuit Court of Appeals issued an order vacating that injunction, but its written opinion, explaining why the injunction was improper, was not issued until now.   As you will see http://www.ca2.uscourts.gov/decisions/isysquery/83c7e33b-75ca-4735-acec-95593be09f03/2/doc/11-1150_op.pdf , the Court states that New York’s statute providing for recognition of foreign country money judgments cannot be invoked affirmatively…
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