Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

November 23, 2009

Sanctions Assessed for Meritless “Manifest Disregard” Appeal

A recent decision of the U.S. Tenth Circuit Court of Appeals assesses sanctions in the form of an award of attorneys’ fees against counsel for a party appealing the confirmation of an arbitration award on grounds of “manifest disgregard of the law.” While allowing that “manifest disregard” has some continuing vitality after Hall Street Assocs. v Mattel, Inc., the Court here found the arguments foir vacatur completely meritless. The arbitration community should be encouraged at the Court’s explicit linkage of the attorney’s fee sanction issue to the very limited prospects for vacatur based on manifest disregard, and to the essential…
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November 17, 2009

The Fifth Circuit’s Reverse Preemption Decision: An “Upset Victory” for International Arbitration

An arbitration lawyer immersed in the U.S. jurisprudence of the New York Convention, but not necessarily versed in all of the nuances of the Supremacy Clause of the U.S. Constitution, might be tempted to conclude that international arbitration scored a remarkable upset victory, against long odds, in the U.S. Fifth Circuit Court of Appeals last week. (Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, 2009 U.S. App. LEXIS 24585 (5th Cir. Nov. 9, 2009)). By a vote of 15 to 3, the judges of that Court sitting en banc ruled — sustaining the original decision of a three-judge Fifth…
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November 13, 2009

New York Convention Is Not “Reverse Pre-Empted” By State Insurance Regulation Designating Judicial Forum

Our U.S. Court of Appeals for the Fifth Circuit has issued an important en banc decision, refusing to enforce a Louisiana state insurance law whose effect is to prohibit arbitration of international insurance disputes, on the basis that the Louisiana law is pre-empted by the New York Convention and Chapter Two of the Federal Arbitration Act. This outcome might on the surface appear to be unsurprising. But the federal McCarran-Ferguson Act provides that no Act of Congress shall interfere with the rights of the states to regulate the business of insurance. Therefore the Court had to struggle with the question…
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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.