Recent Posts

August 10, 2009

U.S. Judicial Discovery Assistance for Private Foreign Arbitrations: The Fifth Circuit Says “No”

The Fifth Circuit U. S. Court of Appeals last week reaffirmed its position that 28 U. S. C. 1782, which provides for federal assistance in obtaining discovery for use in foreign and international tribunals, does not apply to private commercial arbitration tribunals. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 2009 U. S. App. LEXIS 17596 (5th Cir. Aug. 6, 2009). The Fifth Circuit had adopted that position ten years ago in Republic of Kazakhstan v. Biedermann Int’l, 168 F. 3d 880 (5th Cir. 1999). In that case, the court examined the legislative history of the 1964…
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July 31, 2009

Newly-Discovered Evidence in Post-Award Proceedings

Dear Readers: A recent commentary by Dr. Georg von Segesser of Schnellenburg Wittmer, Zurich, posted on the Kluwer Arbitration Blog (www.kluwerarbitrationblog.com) discusses a recent Swiss Federal Supreme Court case in which the Court denied a motion to vacate an award based on new evidence presented to the Court on an issue of fact determined by the Arbitral Tribunal. I posted on the Kluwer Blog a comment concerning how the same issue might be addressed by an American federal court. That comment is republished here. Georg, I believe a U. S. Court would have reached the same result given this procedural…
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July 31, 2009

Hall Street and the Problem of Post-Award Litigation — Conference Paper for ABA Business Law Section Panel, Chicago, August 2, 2009

Hall Street v. Mattel, and the Problem of Post-Award Litigation By Marc J. Goldstein Sixteen months after the Supreme Court’s decision in Hall Street Assocs. v. Mattel, Inc., 128 S. Ct. 1396 (2008), and despite the rivers of “ink” that have flowed in commentary on the implications of the decision, one may seriously ask whether the realm of post-Award judicial proceedings has really changed very much. And one may well ask, should that realm change more dramatically than it already has, and if so, how do we get from here to there? For those who desire full-bore judicial review on…
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July 28, 2009

Replacement of the Deceased or Disabled Arbitrator

The death or health-related resignation of an arbitrator during the course of the proceedings is a vexing problem that admits of no easy or fully satisfactory solution. If proceedings have been extensive in a complex case, the substitute arbitrator may never fully “catch up,” and may never fully gain the parties’ confidence that he or she understands the case. Yet starting the case over, or recycling to an early stage, may be a sacrifice of time and cost that one or both parties find unacceptable. A recent federal district court case in New York (In re Ins. Co. of North…
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July 15, 2009

Judicial Power to Change the Place of Arbitration?

The US Fifth Circuit Court of Appeals, acting in a long-running contract dispute between an American shipbuilder and the Republic of Venezuela, has held that the Federal Arbitration Act (“FAA”) might permit a District Court, in proper circumstances and with sufficient statement of justification, to compel arbitration at a place of arbitration other than the one established in the contract, or to deny enforcement of the arbitration clause entirely based on political conditions at the agreed place of arbitration. Northrop Grumman Ship Systems Inc. v. Ministry of Defense of the Republic of Venezuela, 2009 U. S. App. LEXIS 15260 (5th…
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July 07, 2009

U.S. “Public Policy” As Basis to Nullify Arbitration Agreement: Beyond the Bounds of Mitsubishi?

The U. S. Court of Appeals for the Eleventh Circuit has held that an arbitration agreement between a foreign seaman and his U.S. employer, proving for arbitration outside the U.S. under foreign law, was null and void becuase it prospectively waived the seaman’s rights under the federal Seamen’s Wage Act. Thomas v. Carnival Corp., 2009 U. S. App. LEXIS 14406 (11th Cir. July 1, 2009). In Thomas, the court of appeals relied centrally on the much-discussed footnote dictum of the U. S. Supreme Court in Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth, 473 U. S. 614 (1985). The Mitsubishi footnote states…
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