Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

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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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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