Recent Posts

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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December 08, 2009

“Investments” in Investment Arbitration: A New Installment in the Jurisprudence

What liberty of contract do State parties to a bilateral investment treaty have to define broadly the category of “investments” that may be the subject of arbitration between one Contracting State and an investor of the other? The arbitral tribunal in Romak S.A. v. Republic of Uzbekistan (PCA Case No. AA280, available at Permanent Court of Arbitration website, www.pca-cpa.org) appears to fix limitations on such freedom of contract in its award, issued November 26, 2009, dismissing the Claimant’s claims on the basis that an account receivable arising from the sale of tens of thousands of tons of grain was not…
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December 02, 2009

Third Circuit Reaffirms Core NY Convention Principles

The U.S. Third Circuit Court of Appeals has issued an important reaffirmation of certain core principles in the American jurisprudence of the New York Convention. In a “non-precedential” opinion that will nevertheless be very persuasive in future cases, the Court: 1. Declared, consistent with prior case law in other federal courts, that Convention Article V(1)(e)’s reference to “a competent authority of the country… under the law of which the award was made” refers “‘exclusively to procedural and not substantive law, and more precisely, to the regimen or scheme of arbitral procedural law under which the arbitration was conducted.’” Here, the…
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December 01, 2009

Exclusive State Court Jurisdiction Over Motions to Vacate Convention Awards?

Does Chapter Two of the Federal Arbitration Act confer federal subject matter jurisdiction, in a federal district court at the seat of the arbitration, over a motion to vacate a Convention award? A senior federal district judge in Chicago has raised this issue, sua sponte, in an action to vacate a Convention award that was brought to the federal court from an Illinois state court by a Notice of Removal. In a published order, the Court expressed doubt that federal subject matter jurisdiction exists, and invited the parties to brief the issue by December 9. Virginia Surety Co. v. Certain…
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