Recent Posts

January 28, 2011

“[U]nder the law of which the award was made.” The Citadel of Article V(1)(e) Survives Another Assault

Article V(1)(e) of the New York Convention has withstood another attempted assault in the U.S. court system.   A federal district judge in Washington, D.C. last week rejected the proposition that a court of the country whose substantive contract law but not its arbitral procedural law applied to the arbitration could, by the consent or stipulation of the parties, become a “competent authority” whose purported vacatur of an award may furnish a basis for a judicial refusal to grant recognition and enforcement of an award under Article V(1)(e).  (International Trading and Industrial Investment Co. v. DynCorp Aerospace Technology, 2011 U.S. Dist….
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January 24, 2011

A U.S. Court Changes the Seat of an International Arbitration

Last month in a decision below the Mason-Dixon Line and perhaps below the radar detection devices of the international arbitration bar, a federal district court in Mississippi enforced in part a contractual agreement for ICC arbitration between a major U.S. defense contractor and the Government of Venezuela, but declined to enforce the agreement insofar as it named Caracas, Venezuela as the seat of the arbitration. Instead the Court directed the parties to reach agreement on another seat within 15 days failing which the Court would name a seat. (Northrop Grumman Ship Systems, Inc. v. Ministry of Defense of the Republic…
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January 18, 2011

Enforcement of International Arbitration Clauses By Non-Signatories: The Meaning of “Arbitral Equitable Estoppel”

Today I will attempt to bring some clarity to American federal law concerning enforcement of international arbitration clauses by non-signatories.  I will discuss two recent cases, one in Texas and the other in New York, in each of which a non-signatory sought to compel a signatory to arbitrate claims on which the signatory had commenced litigation.  In the Texas case, a US company (“Licensee”) had an arbitration agreement with a Dutch company (“Licensor”), contained in a technology license agreement. After Licensee rejected a takeover bid from Licensor, the US subsidiary of the Dutch company (“Licensor Sub”), according to Licensee, conspired…
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December 22, 2010

Choice-of-Law Regarding Arbitrability With Non-Signatories: Wading Through the Morass

Before we part ways in flight to family hearths, groomed pistes, and pristine sandy beaches nearer to the Equator, let us return briefly to one of the favorite topics of Arbitration Commentaries and its readers:  arbitrability with non-signatories, and specifically the choice-of-law governing arbitrability in regard to non-signatories.   A war story begins today’s installment. My Hong Kong client contracted to sell software to a New York company and in the contract provided for Hong Kong governing law and the resolution of disputes by arbitration. The contract named no arbitral institution, nor any rules, place of arbitration, or method to…
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December 18, 2010

A Sensible Non-Application of Functus Officio to Divergent Partial and Final Awards

The functus officio doctrine returned to center stage this week, with a new decision in a New York Convention case from the U.S. Fourth Circuit Court of Appeals. Here, a partial award determined that a contract had been breached, but the subsequent final award determined that the same contract was unenforceable. In the circumstances, the Court held, the final award was enforceable and confirmation of the partial award could be (and properly was) refused under the Convention by the district court. (AO Techsnabexport v. Globe Nuclear Servs. & Supply, Inc., 2010 U.S. App. LEXIS 25640 (4th Cir. Dec. 15, 2010))….
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December 14, 2010

Intel “Discretionary Factors” Considered ln Chevron’s Section 1782 Cases

The efforts of Chevron Corporation to obtain evidence under 28 U.S.C. § 1782 for use in litigation in Ecuador’s courts  and in a BIT arbitration against the Government of Ecuador has given U.S. District courts in a number of jurisdictions the opportunity to consider the discretionary factors affecting the availability of section 1782 discovery. Such discretionary factors were identified by the U.S. Supreme Court in the Intel case. (Intel Corp. v. Advanced Microdevices, Inc., 542 U.S. 241 (2004)).   Chevron is the defendant in private environmental litigation in Ecuador, and contends that the Government of Ecuador has improperly colluded with…
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