Recent Posts

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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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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