Recent Posts

October 27, 2009

Incorporation by Reference of an Arbitration Agreement: Governing U.S. Legal Standards

According to a recent decision of the U.S. Court of Appeals for the Third Circuit, a retrocession agreement (reinsurance of reinsurance) that incorporates by reference all terms of a reinsurannce contract that contains an arbitration clause, does provide for arbitration of disputes under the retrocession contract. Further, the Court held, courts must address the question of incorporation-by-reference of an arbitration clause just as they would address the incorporation of any other contract term. To impose a more stringent legal standard for incorporation of an arbitration clause, as compared to other commercial terms, would violate the command of the Federal Arbitration…
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September 11, 2009

New International Litigation Developments in the United States

On my website I have posted two new commentaries on recent federal appellate cases. One involves the assertion of jurisdiction over the Kingdom of Spain under the Foreign Sovereign Immunities Act. The other involves rejection of alleged personal jurisdiction over DaimlerChrysler AG in a case brought under the Alien Tort Claims Act. The orange box on the left margin of this page is a link to my website.

September 11, 2009

UNCITRAL Arbitration Working Group Session in Vienna, Sept. 14-18

Dear Readers: I am en route to Vienna to attend the UNCITRAL Arbitration Working Group Session, in the status of an observer on behalf of the Association of the Bar of the City of New York. The Working Group is in advanced stages of a proposed revision of the UNCITRAL Arbitration Rules. I have been asked by the editors of Transnational Dispute Management (TDM) to post reports on the proceedings to its website. I hope you will look for those reports. www.transnational-dispute-management.com.

September 10, 2009

Enforcement of Convention Awards Collaterally Attacked in Courts of “Secondary Jurisdiction”

Dear Readers: A posting on the Kluwer Arbitration Blog by Francesca Richmond discusses some recent UK case law on merits review of arbitration awards in the courts, and alludes briefly to a pending US enforcement case in which a District Court in Washington is asked to deny recognition out of respect for a judgment of a Qatari court under Qatari law, notwithstanding that the seat of the arbitration was Paris. Reproduced below is the comment I have posted on the Kluwer website. Francesca — Your posting inspired me to look at the brief for Respondents in the IITIC/Dyncorp enforcement case,…
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September 02, 2009

Public Policy As a Basis to Deny Recognition Under the New York Convention: A Missed Opportunity

US federal district judges who do not frequently grapple with the New York Convention and Chapter Two of the FAA, and in many Circuits lack clear appellate guidance, often struggle to apply the terms of the treaty and the statute to novel and unusual situations. A new case in point comes from the US District Court in Maryland, which reached a correct result in denying recognition of a partial award while confirming the final award, but missed an opportunity to make an explicit and persuasive application of Article V of the Convention to justify denying recognition to the partial award….
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August 31, 2009

U.S. Public Policy as Basis to Deny Enforcement of Arbitration Agreement: More Discussion of the Thomas v. Carnival Corp. case

At the Kluwer Arbitration Blog you will find an interesting comment by Paul Friedland on the Thomas v. Carnival Corp. decision of the Eleventh Circuit. I commented on the Thomas case here on July 7, 2009.Below is the text of my comment today posted on the Kluwer Arbitration Blog. Paul, The concerns you mention are serious ones; yours is a different and insightful reading of a case discussed in my Arbitration Commentaries on July 7, 2009. (http://arbblog.lexmarc.us — “U. S. Public Policy As Basis to Nullify Arbitration Agreement: Beyond the Bounds of Mitsubishi?”) What troubles me most about Thomas is…
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