Recent Posts

January 19, 2010

Post-Award Reconsideration: Further Comments on the Second Circuit’s Decision in T. Co. v. Dempsey Pipe

Dear Readers: In anticipation of a more formal article to be published elsewhere that will comment upon the T. Co. v. Dempsey decision (2010 U.S. App. LEXIS 893 (2d Cir. Jan. 14, 2010)), and in the interest of the objectivity of that article (this writer was on the losing side of the reconsideration issue), I offer some remarks here for your consideration and comment. The Second Circuit holds that the parties’ adoption of ICDR Rule 30(1), and their submission of applications to the arbitrator under that Rule, constitute “clear and unmistakable evidence” of their intention to allocate to the arbitrator,…
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January 15, 2010

Post-Award Reconsideration by Arbitrators

Dear Readers: It is not often I have the opportunity to write about my own cases. But today I do. The Second Circuit yesterday decided a case called T. Co. Metals LLC v. Dempsey Pipe. It is found on 2d Cir. website, where you may read/download. The portion of the decision that I hope is of interest involves the arbitrator’s issuance of an amended award altering the outcome on the merits, based on the arbitrator’s construction of ICDR Rule 30(1) permitting correction of “clerical” errors. Reversing the District Court, the Second Circuit holds that the arbitrator’s construction of the Rule…
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January 10, 2010

A Legislated Solution to the Class Actions Conundrum?

While the arbitration community awaits the Supreme Court’s decision in the Stolt-Nielsen case, US courts and commercial arbitrators continue to wrestle with the suitability of the arbitral forum for class action litigation. In a recent case, the district judge who decided Stolt-Nielsen in the first instance upheld an arbitrator’s clause construction award in a proposed Title VII class action. The award held that the relevant arbitration clause did not prohibit class actions, and, as this was an adhesion contract between an employer and employees, the employer’s failure to include an express prohibition was dispositive in construing the clause to allow…
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January 10, 2010

Referring Arbitrability Issues to the Arbitrator

A decision from the Southern District of New York reminds us that an agreement to arbitrate under arbitration rules that give the arbitrator power to rule on her own jurisdiction will be “clear and unmistakable evidence” that the parties intended the arbitrator, not a court, to resolve all issues concerning the existence, validity and scope of the arbitration agreement. Here a publisher brought suit for copyright infringement, against the same infringer it had sued in a still-pending arbitration. The publisher claimed the actions concerned infringement in different time periods, one covered by the arbitration clause, the other not. As the…
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December 15, 2009

Joinder of Claims in ICSID Arbitration: What is the Same “Subject Matter”?

Investment law proceduralists will find much room for debate in the recent decision of a divided ICSID Tribunal, denying the application of an American investor to join additional claims in a BIT arbitration against the former Soviet republic of Georgia. (Itera International Energy LLC and Itera Group NV v. Georgia, ICSID Case No. ARB/08/7, Decision on Admissibility of Ancillary Claims, Dec. 4, 2009) In broadest terms, the dispute involved non-performance by Georgia under agreements for payment of unpaid bills for natural gas that the Claimant had supplied to state-owned entities. Under one agreement, Claimant purchased a 90% interest in a…
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December 15, 2009

Arbitral Discretion to Refuse Tactical Adjournment Requests

One of the dilatory tactics commonly employed by litigants in the arbitration process is the tactical request for adjournment of hearings. Many arbitrators, reluctant to invite a challenge to the award based on alleged procedural unfairness, will succumb to adjounment request even if it is transparently tactical and dilatory. Arbitrators whose instincts are to resist such tactics will surely take comfort in a recent decision from the federal court in the Southern District of New York. (Bridgepointe Master Fund v. Biometrx, 2009 U. S. Dist. LEXIS 115678 (S.D.N.Y. Dec. 11, 2009)). Here, the Court rejected a motion to vacate the…
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