Recent Posts

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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November 22, 2011

“Clerical Error” and the Functus Officio Doctrine: Common Law Limits on Amendments to Awards?

As arbitrators we think quite a lot about “functus officio,” this being a quaint latin expression for our status on the morning after delivery of a final award. But we do not often enough think about or discuss where this disempowered status fits within the scheme of arbitration law — a question to which the answer would advance analytical clarity when courts must resolve controversies over an arbitrator’s actions in modifying a purportedly final award.  US courts often refer to “functus officio” as a “doctrine,” as did the US Fifth Circuit Court of Appeals in a decision earlier this month….
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November 14, 2011

Judicial Power to Enjoin Arbitration: Clear Analysis from the Second Circuit

Arbitration Commentaries has written on more than one occasion on the question, not consistently decided in the US courts, of whether the Federal Arbitration Act (“FAA”) provides authority for a federal court to enjoin a pending arbitration. In a significant recent decision, the US Second Circuit Court of Appeals affirmed a District Court’s order enjoining an arbitration, but did so based on analysis that clearly stops short of saying that an action to enjoin arbitration is an implied cause of action conferred by the FAA. (In Re American Express Financial Advisors Securities Litigation, 2011 WL 5222784 (2d Cir. Nov. 3,…
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October 29, 2011

Arbitrators’ Anti-Arbitration Injunctions: Beyond the Limits of Power?

Today’s topic is the power of the international arbitrator, or lack of it, to issue an anti-suit/anti-arbitration injunction in a final award.  Assume the parties have a commercial contract, and that an arbitrable dispute has arisen over whether Party A may as a remedy for a default foreclose upon common shares owned by Party B. Party B commences the arbitration to block the foreclosure. In the years leading up to the arbitration, Party B had also sought related provisional and final relief from courts in the US and abroad and in some cases had pursued appeals when relief was denied. Party…
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October 17, 2011

Can We Discern a Section 1782 Jurisprudence From the Chevron-Ecuador Cases?

Numerous federal district courts and a handful of federal courts of appeals have played a part in the ongoing investment treaty arbitration between Chevron Corporation and the Republic of Ecuador. They have entertained and for the most part have granted discovery applications addressed to non-parties residing in the United States, made pursuant to 28 U.S.C. Section 1782. (For the latest installment known to this writer, see In re Applications of the Republic of Ecuador, 2011 WL 4434816 (N.D. Cal. Sept. 23, 2011)). This surfeit of judicial decisions from different district courts in different parts of the country, but involving the…
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