Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

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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October 07, 2011

What We Learn from Canada’s Cargill Case: Judicial Review and the Core Competence of Investment Tribunals

It is the first day of the new hockey season in North America, a suitable occasion for Arbitration Commentaries to bring you content inspired by our neighbors in the Great White North. By now the news will probably have reached you that the highest appellate court of the province of Ontario, the Ontario Court of Appeal, earlier this week affirmed a first instance court’s ruling that denied a motion to vacate in part a NAFTA arbitral tribunal’s award against the Government of Mexico and in favor of the US multinational Cargill, Inc. (Mexico v. Cargill, Inc., 2011 ONCA 622 (Oct….
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October 02, 2011

Reasonable Relationship With A Foreign State: Thinking About the New York Convention’s Application to Disputes Between US Parties

Today Arbitration Commentaries briefly notes a new decision from a respected federal district judge in Houston, Texas, holding that a sale of goods contract that was between two US companies, but which provided for discharge of the shipped goods in a foreign port to be designated by the buyer created a sufficient international nexus to make the New York Convention applicable to the contract’s arbitration clause. (Tricon Energy, Ltd. v. Vinmar International, Ltd., 2011 WL 4424802 (S.D. Tex. Sept. 21, 2011). The issue is litigated from time to time, especially when one party sees a tactical advantage to holding award…
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