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Last week a federal district court judge in New York granted an application made by Chevron Corporation, pursuant to 28 U.S.C. Section 1782, to obtain discovery from a non-party in the United States for use as evidence in a ICSID arbitration between Chevron and the Republic of Ecuador. (In re Application of Chevron Corp., Misc. No. 19-111 (S.D.N.Y. May 6, 2010). A copy of the not- officially-published decision is linked here.) That arbitration is taking place under the UNCITRAL Rules, based on the Bilateral Investment Treaty (“BIT”) between Ecuador and the United States. Two commentaries on a Partial Award in…
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I have reported on three recent occasions concerning judicial decisions on arbitrability in the context of FINRA arbitrations. FINRA is the Financial Institutions Regulatory Authority, successor to the National Association of Securities Dealers, the principal self-regulatory organization of the financial services industry. In yet another such case, a New York federal judge last week denied a motion by J.P. Morgan Securities, Inc. (“Morgan”) (on its own behalf and as successor to Bear Stearns & Co. (“Bear”)) to enjoin a FINRA arbitration pending in Louisiana. However, the Court declined to enter an order compelling arbitration, interpreting Section 4 of the Federal…
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Arbitration practitioners should take note of a trend toward renewed stringency in U.S. judicial application of historical equitable standards for the granting of preliminary and permanent injunctions. The trend is most recently reflected in an important copyright law decision from the US Second Circuit Court of Appeals, discussed today in a new posting that will appear in the Legal Developments section of my website. www.lexmarc.us. Transnational principles governing the issuance of interim measures by international arbitrators are substantially informed by standards in domestic courts of major legal systems. As the recent U.S. trend dictates a return to a more rigorous…
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Those of you who follow developments in U.S. securities litigation may wish to read my commentary on a recent Second Circuit decision concerning liability of professionals for fraudulent statements of their clients. www.lexmarc.us

The Supreme Court’s decision today in Stolt-Nielsen S.A. v. Animalfeeds International Inc., No. 08-1198, slip op., April 27, 2010, ends months of speculation about whether the Court would clarify the status of the “manifest disregard” disregard doctrine. The District Court in Stolt-Nielsen had relied upon the manifest disregard doctrine, before the Hall Street case, in deciding to vacate the arbitration panel’s decision in favor of class arbitration. The Second Circuit in Stolt-Nielsen held, after Hall Street, that the doctrine survives as a “judicial gloss” on Section 10(a)(4) of the FAA, i.e. as a description of the circumstances in which an…
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The Supreme Court of the United States today held that arbitrators exceed their powers under the Federal Arbitration Act when they impose class arbitration on parties that have not expressly agreed to class arbitration. The Court reversed a decision of the U.S. Court of Appeals for the Second Circuit, which held that the parties’ agreement to class action arbitration may be Inferred when their agreement is silent on the matter. Such inference, the Court held today, is “fundamentally at war with the foundational FAA principle that arbitration is a matter of consent. The Court divided 5-3. Justice Alito wrote the…
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