Recent Posts

February 25, 2010

Reinsurance Award Vacated for Evident Partiality of Two Arbitrators

A judge in the U.S. District Court in Manhattan has vacated a reinsurance arbitration award on grounds of evident partiality of the presiding arbitrator and one party-appointed co-arbitrator. The award was signed by these two arbitrators, with the third arbitrator registering dissent. During the course of the proceedings, the two arbitrators who ultimately signed the award had been appointed to sit together on a second case. Their disclosures about the new appointments failed to mention that parties in the two cases were affiliates, that there was a common witness whose testimony had already been heard and evaluated in the second…
Read More »

February 25, 2010

Principle of Separability of the Arbitration Clause Reaffirmed

Adhering to well-settled principles concerning the separability of the arbitration clause, the U.S. Sixth Circuit Court of Appeals reversed an order that had denied a motion to compel arbitration, and held that the lower court improperly relied upon allegations of fraud in the inducement of the entire contract and that there were no sufficient allegations of fraud pertaining specifically to the agreement to arbitrate. The Court also rejected Appellee’s attempt to characterize the dispute as one involving the existence, rather than the validity, of the entire contract, and held that where the position taken is that the signatory to the…
Read More »

February 25, 2010

Reconsideration by Arbitrators: A Canadian Perspective

Readers of these Commentaries will have been exposed recently to Second Circuit decision in January 2010 concerning the powers of an international arbitrator to reconsider and change the outcome under the rubric of correcting “clerical” and “typographical” errors. (T. Co. Metals LLC v. Dempsey Pipe & Supply, Inc., 2010 U.S. App. LEXIS 893 (2d Cir. Jan. 14, 2010)). On the heels of that decision — which sustained the powers of the arbitrator to change the award, as a consequence of the deference due to the arbitrator’s interpretation of the ICDR’s “clerical error” rule — comes a decision of the British…
Read More »

February 24, 2010

Enforcement of Convention Award Against Sovereign Not a Convention Member State

A recent judgment of the Hong Kong Court of Appeal addresses in painstaking detail the sovereign immunity issues implicated when enforcement and execution are sought of a private arbitration award which, while made in the territory of a Member State of the New York Convention, runs against a sovereign state that is not itself a Member State of the Convention. (FG Hemisphere Assocs. v. Democratic Republic of the Congo, CACV 373/2008 & CACV 43/2009, unpublished judgment, copy available from this writer). Two members of the three-judge panel agreed, and held, that (i) at the time of transfer of Hong Kong…
Read More »

February 18, 2010

The Court of Arbitration for Sport: An Olympic Viewer’s Guide

Five-time Olympic champion German speed skater Claudia Pechstein today awaits a decision from an arbitral tribunal of the ad hoc Division of the Court of Arbitration for Sport (“CAS”), hoping for a reprieve from a two-year suspension imposed a year ago when blood tests indicated use of performance enhancing drugs. Respondents in the case are the German National Olympic Committee and the International Olympic Committee. The International Skating Union also appears as an interested party. Ms. Pechstein previously lost an appeal of the suspension before another CAS arbitral tribunal in November 2009, and last month the Federal Supreme Court of…
Read More »

February 11, 2010

Preclusive Effect of Prior Award is Arbitrable Issue

A federal district judge in Indiana last week commendably resisted the temptation to impose a permanent stay of an ICDR arbitration that arguably was brought to reopen and relitigate issues decided in an earlier award that had been confirmed by the District Court and uphed by the US Seventh Circuit Court of Appeals. Citing a decision written by Justice Sonia Sotomayor when she was a federal district judge in Manhattan (North River Ins. Co. v. Allstate Ins. Co., 866 F. Supp. 123 (S.D.N.Y. 1994)), the Court held that the preclusive effect of the prior arbitration award is itself an arbitrable…
Read More »