Recent Posts

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…
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February 02, 2010

Evident Partiality: Should Judges Review the Merits for Evidence of Bias?

When a U.S. District Court Judge vacates an arbitration award on grounds of “evident partiality,” it is an occasion for the arbitration community to take a careful look, to see if the arbitrator’s conduct was clearly improper, or if instead there has been an overzealous judicial intrusion. Therefore, I consider here a new decision last week by a federal judge in Detroit, vacating an award on grounds of the presiding arbitrator’s evident partiality. The Thomas Kinkade Co. v. Lighthouse Galleries, Inc., 2010 U.S. Dist. LEXIS 6443 (E.D. Mich., Jan. 27, 2010). After four years of proceedings, after the end of…
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January 30, 2010

Understanding UNCITRAL’s Revised Arbitration Rules: A Spectator’s Guide to the Upcoming New York Working Group Session

On the eve of the 52d Session of the UNCITRAL Working Group II (Arbitration and Conciliation), which convenes at the United Nations in New York on February 1 for a five-day deliberation, arbitration practitioners in the United States have just been reminded, by a decision of the influential Second Circuit U.S. Court of Appeals, that when parties agree to arbitrate under arbitration rules like those of the UNCITRAL, they bargain for the nearly unreviewable discretion of the arbitrator in the interpretation of those rules. As the UNCITRAL Working Group undertakes its “third reading” of the proposed revised UNCITRAL Arbitration Rules,…
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January 27, 2010

Mediator Tactics to Solve the Stubborn Case

(Marc J. Goldstein acts from time to time as a mediator in commercial arbitrations and commercial cases in state and federal courts in the United States. Beginning with this post, Arbitration Commentaries will occasionally be a forum for mediation commentaries as well.) A not unusual dynamic in the mediation of complex cases is that one party insists, through the course of a full day of mediation or even multiple sessions, that it will not make a material move toward settlement, and that it would rather try the case, and yet the same party expresses willingness to continue the mediation and…
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January 22, 2010

Post-Award Reconsideration: More Evolved Thoughts on the Second Circuit’s T. Co. v. Dempsey Decision

Dear Readers: In my continuing quest for objective reactions to my non-objective analysis of T. Co. v. Dempsey, with regard to the reconsideration of the award by the arbitrator, I present the following further provisional thoughts. Your comments are most welcome. ****** Parties adopting the ICDR Rules do not agree to arbitrate the issue of correctible errors in the award to the same degree that they agreed to arbitrate the merits. By adopting the ICDR Rules, they agree that either party may present the correction issue to the arbitrator without prejudice to the right of that party to submit the…
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January 22, 2010

Judicial Enforcement of Arbitral Provisional Measures

Judicial enforcement of arbitral provisional measures orders remains an area of considerable uncertainty and anxiety. But United States law on the subject is becoming clearer. On January 15, a federal district judge in Dallas, Texas entered an order based on Section 9 of the FAA confirming as an award a preliminary injunction order entered by a three-member tribunal. Western Technology Services Int’l v. Caucho Industriales S.A., 2010 U.S. Dist. LEXIS 3279 (N.D. Tex. Jan. 15, 2010). The Court was invited by the party seeking confirmation to find that it had jurisdiction to confirm the preliminary injunction order as an award…
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