Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

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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March 20, 2011

Ecuador Must Arbitrate Arbitrability in Chevron BIT Case, Second Circuit Holds

You may learn very little you did not already know, about federal arbitrability law or investor-State arbitration, from the Second Circuit’s decision in Republic of Ecuador v. Chevron Corp., 2011 U.S. App. LEXIS 5351 (2d Cir. Mar. 17, 2011)). But the decision so elegantly combines fundamental principles from these separate domains of arbitration jurisprudence that it serves to enrich our appreciation of some basic precepts. In case you have not subscribed to Arbitration Commentaries or the OGEMID discussion forum before today (for shame), here is a primer on Chevron/Texaco’s travails In Ecuador: Citizen groups from Ecuador sued Chevron in New…
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March 15, 2011

Amex Class Action Waiver Remains Unenforceable After Stolt-Nielsen, Second Circuit Rules

How much did the Supreme Court in Stolt-Nielsen really resolve about arbitral class actions?  No single case can answer that question, but much is to be learned from the US Second Circuit Court of Appeals’ new decision, reaffirming its prior decision issued before Stolt-Nielsen, in In re American Express Merchants’ Litigation, 2011 U.S. App. LEXIS 4507 (2d Cir. Mar. 8, 2011).  Here the Court holds that Stolt-Nielsen does not require any change in the Court’s prior ruling that the class action waiver contained in the arbitration agreement between Amex and it merchants is unenforceable under the FAA, violating public policy…
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March 08, 2011

Hello Dallah: Viewing US Arbitrability Law Through a UK Prism

Many international followers of Arbitration Commentaries will have recently spent time reading, or reading about, the Judgment of the U.K. Supreme Court in the Dallah v. Pakistan case, where, applying French law (and transnational principles as incorporated therein) to the question of whether a foreign state as a non-signatory was bound by the arbitration agreement signed by a state-created entity, found that the answer to that question depended upon the “common intention” of the foreign state and the party demanding arbitration. (In the event, the Court determined — reviewing the question de novo despite the arbitral tribunal’s partial award confirming…
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March 08, 2011

US Second Circuit Denies Rehearing on Ruling Against Corporate Liability for Human Rights Abuses

A commentary on the US Second Circuit Court of Appeals’s recent denial of panel rehearing in the Kiobel case appears on my general website, www.lexmarc.us.  This three-judge Second Circuit panel held in 2010 that the US Alien Tort Statute does not provide for causes of action against corporations, on the grounds that corporate liability for international human rights violations has not achieved the status of a generally-accepted principle of customary international law.