Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

October 28, 2010

Arbitrability Appeal Mooted By ICC Tribunal’s Jurisdiction Award, Third Circuit Holds

Just when you thought the day would never return when a U.S. court would actually show deference to a foreign arbitral tribunal on an issue of that tribunal’s jurisdiction, along comes a new decision of the U.S. Third Circuit Court of Appeals in Philadelphia, holding that an appeal before it on such a jurisdiction issue was moot – moot – because the ICC arbitral tribunal in Paris had ruled upon the issue in a partial award during the pendency of the appeal.  (Invista S.A.R.L. v. Rhodia SA, 2010 U.S. App. LEXIS 21950 (3d Cir. Oct, 25, 2010)). The Invista case…
Read More »

October 24, 2010

Another Look at Competence-Competence American Style

Under compétence-compétence, American style, nothing may be arbitrated if there never was a contract. We were reminded of this last week, when a federal judge in Manhattan (i) denied a motion to compel arbitration, and (ii) refused to stay its own proceedings pending the decision of an ICC arbitral tribunal in London on the contested issue of the existence of a contract containing an agreement to arbitrate. (Dedon Gmbh v. Janus Et Cie, 2010 U.S. Dist. LEXIS 112131 (S.D.N.Y. Oct. 19, 2010).   In Dedon, the parties either did or did not enter into an exclusive distribution agreement. If they…
Read More »

October 21, 2010

Some Thoughts on Arbitral Choice of Law Regarding the Attorney-Client Privilege

International arbitrators are regularly called upon to resolve disputes over the application attorney-client privilege between parties from different countries that have fundamentally different rules concerning the existence and scope of the privilege. When one of the parties is a corporation from a civil law jurisdiction in Europe, or from an Asian nation, the legal function within the corporation may be carried out by lawyers or non-lawyers, or persons with legal training but who have a different professional status and are subject to different regulations than lawyers in private practice.   As a result, when international arbitrators are called upon to…
Read More »

September 30, 2010

A Practice Note….

The 2010 docket of Marc J. Goldstein Litigation & Arbitration Chambers has included engagements as mediator (privately-engaged and court-appointed), sole arbitrator, co-arbitrator, arbitration counsel, litigation counsel, and consulting counsel in foreign litigation. Industry coverage this year has included pharmaceuticals, commercial banking, investment banking, securities, insurance,  aviation, telecoms, software development, and international sales. For advocacy engagements, I submit proposals to work alone, or with teams of desired scale assembled from my local, national, and global networks of professional colleagues.

September 30, 2010

Ninth Circuit Refuses Confirmation of Convention Award, Calling Arbitrator Interpretation “Completely Unreasonable”

The U.S. Ninth Circuit Court of Appeals, in a sharply divided 2-1 panel decision, has overturned a San Francisco federal district court’s confirmation of a New York Convention award, made in California, between a Belarus claimant and a California respondent-counterclaimant. The award dismissed the Belarus company’s claims and awarded the U.S. party more than $4.2 million in damages and costs on its counterclaims. The position of the panel majority was that confirmation of the award should have been refused, under Article V (1)(d) of the New York Convention, because the arbitral procedure was not in accordance with the agreement of…
Read More »

September 28, 2010

Effort to Block Madoff Investors’ Consolidated ICDR Arbitration Is Rejected by New York Federal Court

A federal district judge in New York has rejected an attempt by a securities broker-dealer, involved in ICDR arbitration related to Bernard Madoff’s Ponzi scheme, to change the arbitral forum by a retroactive amendment to its customer agreement. Anwar v. Fairfield Greenwich Ltd., 2010 U.S. Dist. LEXIS 87449 (S.D.N.Y. Aug. 20, 2010). Four months after Madoff had admitted the Ponzi scheme in December 2008, the Standard Chartered Bank sent its account holders a new customer agreement, retroactive to November 2008. The new agreement was with a successor entity, a new broker-dealer, and provided for arbitration before a panel appointed by…
Read More »