Recent Posts

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…
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September 23, 2010

Principles Governing Removal of Convention Cases to Federal Court Clarified in Recent Decision

For arbitration lawyers outside the United States, the allocation of adjudicatory power, in arbitration-related cases, between U.S. federal courts and courts of the individual states, is considered to be a rather arcane subject. But it is a subject of keen interest to American lawyers acting for their foreign clients because of the perceived decisive advantages of litigating issues arising under the New York Convention and the Federal Arbitration Act (“FAA”)  before a federal district court judge. Certain provisions in federal procedural law allow for a defendant in a case brought in a state court to insist that the case proceed…
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September 15, 2010

Arbitral Subpoenas for the Non-Party Witness: Some Problems and Possible Solutions

  This is the initial draft of what will eventually be a longer and hopefully more thoughtful article concerning the difficulties, under existing American law and practice, of arbitral subpoenas in U.S.-seated international arbitrations. Your comments on this draft, on this site or to the author privately, are most welcome.     Parties to international commercial contracts often select New York as the place of their arbitration, and they do so for a variety of reasons, some of them related to the hospitable legal and professional environment for arbitration, including New York’s concentration of skilled arbitrators who are well-versed in…
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September 08, 2010

Second Circuit Adopts “Interest Analysis” Choice of Law Rule in Nazi-Era Stolen Art Dispute

  International arbitrators sitting in New York will from time to time need to apply or at least consider New York choice-of-law rules. It is therefore noteworthy when those rules evolve in a particular direction. New York “conflicts” rules (as New York lawyers call them) have for many years been a hybrid of “traditional” rules — based on such talismans as the place of a transaction or the nationality of a party in interest — and the more modern view that “interest analysis” should control. The shift in favor of interest analysis gained momentum recently in a decision of the…
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August 30, 2010

Arbitral Control Over The Ethics of Advocacy: Thoughts

Enactment of a uniform code of ethics governing the conduct of counsel in international arbitrations is a much-discussed topic. Whether cross-cultural standard-setters such as the International Bar Association can, or should, achieve such a complex and difficult mission remains to be seen. A dimension of the problem that should not be overlooked is that counsel in international arbitrations often will leap at the opportunity to accuse an adversary of an ethical violation. This is rather commonplace in the rough-and-tumble context of American civil litigation, and the problem in international commercial arbitrations exists substantially but not entirely because of the participation…
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