Recent Posts

March 29, 2010

The Arbitrator’s Instinct for Confidentiality of the Proceedings

Practitioners and arbitrators in both commercial and investment arbitrations may profit from studying the thorough and sensitive treatment of confidentiality found in a procedural order issued January 27, 2010 in an ICSID arbitration arising under the BIT between Italy and Argentina. (G Beccara et al v. Argentine Republic, ICSID Case No. ARB/07/5, Procedural Order of 1/27/10, published on ICSID website) The order deals with confidentiality on several levels. The first and perhaps most generally applicable category concerns public discussion of the case during the course of the proceedings. Here the Tribunal’s approach implicitly recognizes a point to which experienced advocates…
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March 24, 2010

In New York, A New Anti-Suit Injunction In Aid of International Arbitration

Yesterday a federal judge in New York granted an anti-suit injunction, in aid of arbitration, barring Indian corporate entities from continuing litigation in India over arbitrable disputes with a U.S. company — litigation in which the Indian parties have already obtained ex parte orders enjoining the U.S. party from continuing with pending ICDR arbitration in New York. (Amaprop Ltd. v. Indiabulls Financial Servs. Ltd., 2010 U.S. Dist. LEXIS 27117 (S.D.N.Y. Mar. 23, 2010)). The arbitration community should be encouraged by the swift and decisive support for international arbitration from the U.S. District Court in Manhattan. But the Court’s anti-suit injunction,…
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March 24, 2010

Arbitration With Nonsignatories: A New Dimension

Shipowners typically agree with their typically-offshore insurers to arbitrate disputes over coverage, and those arbitration agreements are governed by the New York Convention. And the laws of some U.S. states, including Louisiana, allow injured ship workers to bring claims in court against those insurers directly when their employers are bankrupt. Could this mean that the injured worker must arbitrate his direct action claim against the insurer, as a third-party beneficiary of the employer-insurer agreement to arbitrate? Could this mean that such direct action statutes violate the FAA to the extent they require the direct action to proceed in court? The…
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March 18, 2010

Arbitrator Responsibility for Efficiency Gains

An excellent article in the most recent issue of Arbitration International (Vol. 25, No. 4) discusses the challenges facing all participants in international arbitrations (and indeed all arbitrations) to rein in costs. The article, entitled “Inside Out: A User’s Perspective on Challenges in International Arbitration” is written by Jean-Claude Najar, General Counsel France for General Electric. I take a quote from Mr. Najar’s article as the theme for this Commentary: ” “(A)rbitral tribunals should be assessed on the robustness of their cost-saving procedures. While the parties do exercise a fair amount of control over an arbitral proceeding, arbitrators should play…
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March 11, 2010

Non-Party Evidence Under the U.S. Arbitration Act: The Trend Against “Discovery” Continues

A new federal district court decision from Dallas embraces the position of the U.S. Second and Third Circuit Courts of Appeals that the U.S. Federal Arbitration Act (“FAA”) does not permit non-party subpoenas for pre-hearing document discovery, but only permits such subpoenas if they require the non-party to appear at an arbitration hearing and to bring the documents to the hearing. In those earlier cases, the courts concluded that this result was required by the clear language of FAA Section 7. (The Second Circuit’s decision in the Life Receivables case was discussed in an Arbitration Commentaries posting on January 15,…
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March 11, 2010

Application of “Estoppel” and “Alter Ego” Theories to Nonsignatories

In a practical demonstration of how rigorous are the standards under New York law for compelling a non-signatory to arbitrate under the “estoppel” and “alter ego” doctrines, the Chief Judge of the U.S. District Court in Manhattan has issued a decision denying a motion to compel Deutsche Bank AG (“DB”) to arbitrate before a FINRA panel claims relating to the marketing of Auction Rate Securities (“ARS”). (Oppenheimer & Co. v. Deutsche Bank AG, 2010 U.S. Dist. LEXIS 19655 (S.D.N.Y. Mar. 2, 2010). The case is one of many that arose in the wake of the collapse of the ARS market….
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