Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

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.

February 28, 2011

Recent Case Law Briefly Noted: Competence-Competence, the Public Policy Defense, and Removal of Convention Cases from State Courts

n  Breaking no new ground, but adding rich fertilizer to the garden of  US compétence-compétence jurisprudence, a recent decision by the Chief Judge of the U.S. District Court in Manhattan, nominally applying New York contract law but with the substantial influence of federal arbitral “common law,” held that the arbitrator, not a court, should decide whether particular disputes are within the scope of an admittedly valid arbitration clause, when (1) the language of the clause is very broad, encompassing “any and all disputes” or “any controversy” or similar language, and (2) the parties have agreed to arbitrate under rules that…
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February 24, 2011

Parties May Not Bypass District Court for Judicial Review of Award, Ninth Circuit Holds

In a variation on the theme of Hall Street Associates v. Mattel, Inc., the US Ninth Circuit Court of Appeals held in a recent case that the Federal Arbitration Act forbids an agreement of the parties to bypass initial judicial review of the award by a federal district court in favor of first instance review in the Court of Appeals.  (Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011). The parties in Johnson made their agreement to arbitrate in the later stages of a prolonged federal lawsuit alleging unfair credit practices by…
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February 10, 2011

Party-Appointed Arbitrator May Sometimes Serve in Consecutive Related Cases — 7th Circuit Holds

Rarely may an arbitrator serve in consecutive arbitrations involving the same issues under the same contracts, as one party or another will object that the arbitrator who has once decided an issue cannot re-decide the same issue impartially in a second case. But sometimes, notably but not exclusively in U.S. domestic arbitration, it is agreed that the party-appointed arbitrators in a three-member tribunal will not be impartial. That may change materially the analysis of whether the arbitrator may serve in consecutive related arbitrations upon appointment by the same party. A new decision of the U.S. Seventh Circuit Court of Appeals…
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