Recent Posts

June 10, 2009

Enforcement of Foreign Arbitral Awards in the U.S.: A Primer

The following commentary has been prepared for publication in Canada and will shortly be published there in both English and French. However, the discussion of U.S. law in this commentary is certainly not limited to enforcement of awards involving Canadian parties. Enforcement of Foreign Arbitral Awards in the U.S.: A Primer by Marc J. Goldstein Introduction As Canadian companies, and Canadian arbitrators, participate more often in international arbitrations, they have naturally become eager to know more about enforcement of awards outside Canada, and particularly in the United States. The reasons for this interest in the procedures for award enforcement are…
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June 10, 2009

Setting Aside New York Convention Awards

Does Chapter 1 of the Federal Arbitration Act – the “domestic FAA” – provide the legal standards applicable to a motion to vacate an international arbitration award made in the United States? Just when many arbitration practitioners may have thought the settled answer was “yes,” along has come a new federal district court decision in Virginia taking the opposite view. RZS Holdings AVV v. PDVSA Petroleos, S.A., 2009 U.S. Dist. LEXIS 47126 (E.D. Va. Feb. 5, 2009). The Court in RZS held that the Chapter 1, Section 10 standards to vacate an award do not apply to a motion to…
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June 03, 2009

Nonsignatory Defendants Compelling Arbitration

Common law concepts such as agency and estoppel often come into play when arbitral jurisdiction determined under U.S. law. An intriguing recent example is Leff v. Deutsche Bank AG, 2009 U.S. Dist. LEXIS 41713 (N.D. Ill. May 14, 2009). The case arose from the marketing of allegedly abusive tax shelter schemes. Deutsche Bank allegedly assisted a law firm in creating and marketing the schemes, but apparently was unaware that the contract between investors and investment entities provided for arbitration. The investors sued Deutsche Bank for fraud in the federal district court in Chicago. The bank learned of the arbitration clauses…
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May 22, 2009

Arbitral Determinations of Arbitrability

Courts continue to struggle with the question of how to allocate, between judges and arbitrators, power to decide questions of arbitrability (including the existence, vel non, of a valid agreement to arbitrate). The difficulty is acute in international arbitration cases where recognition and enforcement are sought under the New York Convention and its statutory implementing legislation in the U. S. , Chapter Two of the Federal Arbitration Act. A recent case in point is Four Seasons Hotels and Resorts v. Consorcio Barr, S.A., 2009 U. S. Dist. LEXIS 39802 (S. D. Fla. May 12, 2009). In this case, the Court…
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May 19, 2009

Arbitral Power to Award Fees As Sanctions

When the arbitration agreement states that each party shall bear its own legal fees, do the arbitrators have authority to award legal fees as a sanction for bad faith conduct in the arbitration? In a recent case in New York, two federal judges said yes, and two said no. But the two votes in favor formed the majority on a three-judge panel of the Second Circuit Court of Appeals, and so that prominent Court has now held, apparently for the first time, that arbitrators do not exceed their powers by awarding fees as a sanction for bad faith conduct in…
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May 14, 2009

Attachment in Aid of Convention Award Enforcement

A U.S. District Court judge in San Francisco recently granted an order of attachment, in aid of enforcement of the award of the ICC tribunal seated in Stockholm. Recognition and enforcement in the U.S. court were therefore governed by the New York Convention and Chapter Two of the Federal Arbitration Act. The Court’s opinion is a useful guide to many of the essential elements of recognition and enforcement of a Convention award in the U.S. federal courts. The case is Sony Ericsson Mobile Communications AB v. Delta Electronics (Thailand) Public Company Limited, 2009 U.S. Dist. LEXIS 36497 (N.D. Cal. April…
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