Recent Posts

April 28, 2011

First Thoughts on AT&T Mobility v. Concepcion: An Opportunistic Reformulation of Federal Arbitration Law

On April 27, 2011, some 86 years after the passage of the US Federal Arbitration Act (“FAA”), five justices of the United States Supreme Court declared that arbitration “as envisioned by the FAA” does not include class arbitration because class arbitration cases (i) predictably involve high stakes which arbitrators are not suited to handle, (ii) predictably involve an unacceptable risk of unreviewable arbitral error because of the high stakes, (iii) invariably require procedural formality that is at odds with arbitration’s “principal advantage” of informality, and (iv) invariably require that formal rules be applied by arbitrators who, as a group, are…
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April 26, 2011

Denial of Award Enforcement Under Article III “Rules of Procedure”: An Expanded Commentary on Zeevi Holdings v. Republic of Bulgaria

Recently a US district judge in New York dismissed, for improper venue, a New York Convention award-enforcement action against the Republic of Bulgaria by an Israeli company that had won a $10.3 million award against Bulgaria and its Privatization Agency in an ad hoc UNCITRAL Rules arbitration in Paris. The basis for dismissal was that the sales contract between the Agency and the Israeli firm (for purchase of a controlling stake in Bulgaria’s state-owned airline) contained a forum selection clause providing that “execution” of any Award “against the Seller” would be conducted exclusively in Bulgarian courts. (Zeevi Holdings Ltd. v….
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April 15, 2011

US Court Dismisses Convention Enforcement Case Based on Forum Selection Clause

Last week a US district judge in New York dismissed, for improper venue, a New York Convention award-enforcement action, against the Republic of Bulgaria, by an Israeli company that had won a $10.3 million award against Bulgaria and its Privatization Agency after an ad hoc UNCITRAL Rules arbitration in Paris. The basis for dismissal was that the sales contract between the Agency and the Israeli firm (for purchase of a controlling stake in Bulgaria’s state-owned airline) provided that “execution” of any Award “against the Seller” would be conducted exclusively in Bulgarian courts. (Zeevi Holdings Ltd. v. Republic of Bulgaria, 2011…
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April 11, 2011

A Curious Decision on Article VI Stays of Award Enforcement in US Courts

The New York Convention provides in Article VI that a court may stay or postpone decision on an enforcement petition in case an action to set aside the award is pending in a court at the seat of the arbitration. The less-heralded and less-invoked Inter-American (“Panama”) Convention similarly provides in its Article VI that enforcement proceedings may be stayed or postponed “[i]f the competent authority in Article 5(1)(e)” — i.e., the court at the seat of arbitration — “has been requested to annul or suspend the arbitral decision.” US courts asked to stay enforcement proceedings pending vacatur proceedings in courts…
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March 29, 2011

An FAA Cause of Action to Enjoin Arbitration: Is It Necessary?

The question whether the US Federal Arbitration Act (“FAA”) permits a cause of action that seeks only the relief of a stay or injunction against arbitration proceedings has arisen in several recent cases mentioned in Arbitration Commentaries, including the Chevron v. Ecuador saga, in which the Second Circuit decided not to decide this undecided question, finding that neither Ecuador nor the plaintiffs in the Ecuador environmental litigation against Chevron had shown grounds for such a stay of Chevron’s investment arbitration against the Republic of Ecuador. The question was raised again in a case decided last week, involving a more mundane…
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March 24, 2011

An Important New Chapter in the Second Circuit’s Empowerment of Arbitral Tribunals

For New York’s place in international arbitration world, there is more good news.  The US Second Circuit Court of Appeals, reversing the District Court, has held that time-bar issues in a transnational construction dispute governed by ICC Rules are to be resolved by the arbitral tribunal not the court, even though the contract expressly selects New York law as the lex arbitri and even though New York‘s arbitration law (Section 7502 (b) of the Civil Practice Law and Rules) expressly permits application to the court for a stay of arbitration on the ground that the claim would be time-barred in…
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