Recent Posts

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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June 22, 2010

The US Supreme Court’s Decision in Rent-A-Center v. Jackson: A Reinvention of Federal Arbitration Law?

    Godfather buffs will remember Johnny Fontane’s contract with the famous bandleader. Don Corleone’s most feared enforcer, Luca Brasi, held a gun to the bandleader’s head, and the Don assured him that either his brains or his signature would shortly be on the contract. The bandleader signed, and Johnny Fontane’s singing career was re-launched. Now we know the rest of the story. The written contract was nothing but an arbitration clause covering all disputes arising from the relationship. The clause also provided that disputes concerning the making or validity of the agreement would be decided by the arbitrator.  Fontane…
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June 16, 2010

Judicial Interim Measures in Aid of Arbitration: New York’s Muddled Landscape

New York’s arbitration statute, Article 75 of the New York Civil Practice Law and Rules (“CPLR”), addresses in section 7502(c) the circumstances in which a New York court may give a provisional measure in aid of arbitration. Section 7502(c) is a particularly significant provision of state law in the world of international arbitration, given New York’s role as host to many international commercial arbitrations. The Federal Arbitration Act includes no sections concerning provisional relief, so when interim measures are sought in a New York court under CPLR 7502(c) there is no issue of federal law pre-emption.  Several years ago CPLR…
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June 11, 2010

US Court Rejects Motion to Vacate Investment Treaty Award

  Investment treaty arbitration awards rarely find their way into the US courts for review, as the ICSID Rules under which many such arbitrations occur include their own appellate process (see, in particular, Rules 50 and 52-54 of the ICSID Arbitration Rules concerning annulment proceedings). The grounds for annulment under the ICSID Rules overlap substantially with the grounds to set aside an award under Chapter 1 of the Federal Arbitration Act, and so a set aside motion following denied of an annulment application would most likely be rejected based on collateral estoppel principles.   So on the rare occasion when an…
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June 11, 2010

A Note to Readers: Subscribing to Arbitration Commentaries

Dear Readers: As many of you know, I announce new posts on Arbitration Commentaries in a number of Linked In Discussion Groups relating to international litigation and arbitration. Recently many of those announcements may have escaped your attention because the emails you receive from the Linked In groups of which you are a member have a “subject” headline bearing the name of another person who has also  started a discussion or made a job or news posting .  Please know that you may “subscribe” to Arbitration Commentaries by clicking on the “RSS Feeds” link at the top of the Home…
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June 11, 2010

“Evident Partiality or Corruption” — The Connection Requirement

“Evident partiality or corruption in the arbitrators” is one of the statutory grounds for vacatur of an arbitration award made in the United States, as provided on Section 10(a)(2) of the Federal Arbitration Act. I take brief note here of a decision this week in the Ninth Circuit US Court of Appeals that usefully reiterates aspects of the meaning of those terms. (Lagstein v. Certain Underwriters at Lloyd’s, 2010 U.S. App. LEXIS 11836 (9th Cir. June 10, 2010)).   In this case, the Lloyd’s underwriters, after receiving a large award against them from a tribunal composed of retired Nevada state…
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