Recent Posts

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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August 25, 2010

Third Circuit Court Joins Others In Holding That Domestic Standards for Vacating Award Apply to Convention Awards Made in the US

Article (V)(1)(e) of the New York Convention provides that a Court asked to confirm a Convention award may refuse to do so on the ground that the award has been or may be set aside by a competent court of the country in which, or under the law of which, the award was made. While it is sometimes said that the Convention does not concern itself with vacatur of awards but only with grounds for a court to refuse to confirm an award, Article (V)(1)(e) is widely understood to have the effect of incorporating domestic law vacatur standards at the…
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August 19, 2010

D.C. Federal Court Rejects Investor’s Section 1782 Petition As Circumvention of ICSID Tribunal’s Powers

As the debate rages on concerning the potential use of 28 USC 1782 to secure non-party discovery for use in international commercial arbitrations, rather little attention is paid to the fact that judicial assistance under section 1782 is a matter of discretion not of right, and that federal judges may not wish to interfere with the arbitral tribunal’s control over the proceedings. Such reluctance to interfere figured prominently last week in the decision of a federal district judge in Washington to deny section 1782 relief, sought by the American claimant in an ICSID bilateral investment treaty (“BIT”) arbitration against the…
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August 18, 2010

New York Federal Court Sustains Nonsignatory Arbitration Rights in Pharma License Dispute

The recent decision of a US court in New York confirming, under the New York Convention, an ICDR Panel award in favor of Hoffmann La Roche (HLR), and its US subsidiary and customer, comes a good news for at least two important reasons. One concerns arbitration rights of non-signatories; the other, the recovery of legal costs by prevailing parties of foreign and US citizenship in an international arbitration with a seat in New York and New York law applicable to the merits. F. Hoffmann La Roche Ltd. v. Qiagen Gaithersburg, 2010 U.S. Dist. LEXIS 81374 (SDNY Aug. 11, 2010) The…
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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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