Recent Posts

August 07, 2010

Arbitral Award Final Despite Reserved Power to Reconsider, Seventh Circuit Holds

What is the status of a purported final arbitral decision on the merits, when the arbitrator declares her decision to be “final” but also states that she reserves the right to change her mind based upon new evidence? The US Seventh Circuit Court of Appeals in a new decision held that the arbitrator’s decision in such circumstances was a final award, or at least that it became final once the 90-day period provided in section 12 of the FAA, for asking a federal court to modify an award, expired without there having been a request to the arbitrator to modify…
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August 05, 2010

Contract Formation Issues Are For Court Not Arbitrator, Federal Appeals Court Holds

The US Seventh Circuit Court of Appeals has held in a new decision that the question whether a contract containing an arbitration clause ever existed should be decided by a federal district court when it is asked to compel arbitration, and not by the arbitrator in the first instance, unless the arbitration clause indicates that the parties delegated that specific issue of contract formation to the arbitrator. (Janiga v. Questar Capital Corp., 2010 U.S. App. LEXIS 15983 (7th Cir. Aug. 2, 2010)). The Court observed that any doubt on this question appears to have been resolved recently by the Supreme…
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July 16, 2010

Federal Court Denies Confirmation of CIETAC Award, Finding No “Agreement in Writing” Under New York Convention

Call it the “Comma Clause” of the New York Convention.   Article II(1) of the Convention requires each Contracting State to recognize an “agreement in writing” for arbitration. And Article II(2) — the Comma Clause, for this discussion — states: “The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.”   The interpretive significance of the comma in Article II (2) has divided US Circuit Courts of Appeals. The Second Circuit held in the Kahn Lucas case (186 F.3d 210 (2d…
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July 11, 2010

Security for Costs: Dealing with Manipulation in the Arbitral Process

Security for costs is scarcely the most popular partner on the arbitration dance floor. Derains and Schwartz note in their treatise on the ICC Rules, for example, that ICC arbitrators have ordered parties to provide security for costs, although such cases are “exceptional.” They observe that the ICC Rules do not expressly provide for security for costs, but add that “parties may apply to the Arbitral Tribunal for the same under Article 23” — a phrasing that stops short of placing the writers in the camp of those who consider that a security for costs order is indeed an interim measure…
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July 10, 2010

Ninth Circuit Confirms Judicial Power to Issue Injunctions in Aid of International Arbitration

Not so long ago, there was controversy among federal courts in the United States about whether the New York Convention ousted the courts of jurisdiction to provide injunctive relief in aid of international arbitration. Just as that issue was sorted out in favor of judicial power to grant provisional relief, controversy arose over whether institutional rules conferring power on arbitrators to grant provisional relief, when adopted by parties, left courts without power to grant such parties provisional relief, or at least when viewed in light of the Federal Arbitration Act strongly suggested that courts should wield discretion against granting provisional…
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July 04, 2010

Second Circuit Clarifies Principles on Replacement of Resigned Arbitrator

A new decision of the US Second Circuit Court of Appeals holds when a vacancy on an arbitral tribunal occurs due to resignation of an arbitrator, and the parties’ agreement does not address that situation, a district court has broad discretion under Section 5 of the Federal Arbitration Act in deciding how the arbitration shall proceed. (Insurance Co. of North America (“INA”) v. Public Service Mut. Ins. Co., No. 09-3640-cv, 2d Cir., slip opinion, June 23, 2010. The decision may be found on the Court’s website: www.ca2.uscourts.gov).   The decision affirms a ruling if the District Court that was reported upon…
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