Recent Posts

February 03, 2009

Second Circuit Invalidates Arbitral Class Action Waiver

The U.S. Court of Appeals for the Second Circuit has held that a class action waiver in an arbitration clause that operates in practice to stifle prosecution of federal antitrust claims, violates public policy and therefore is invalid under the Federal Arbitration Act (“FAA”). In re American Express Merchants’ Litigation, 2009 U.S. Dist. LEXIS 1646 (2d Cir. Jan. 30, 2009). Whether the decision will affect the economic balance between consumer products companies and their customers is difficult to predict. Consumer services companies have sought over the last decade to limit their exposure to class-wide damages judgments by requiring claims to…
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January 30, 2009

Removal of New York Convention Case from State to Federal Court

I report today on an unusual case, involving a rarely-encountered issue. The case, decided by a U.S. District Judge in New York in the last days of 2008, is Vistra Trust Co. v. Stoffel, 2008 U.S. Dist. LEXIS 106493 (S.D.N.Y. Dec. 29, 2008). The issue: the right of a litigant to transfer a case filed in state court to a federal court (in federal practice parlance, “removal”) when the case involves an arbitration agreement or award governed by the U.N. Convention on Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). In Vistra, a family trust brought fraud claims…
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January 22, 2009

Do-Overs: A New Installment in the Law of Reconstituted Tribunals

“Do-Overs”: A New Installment in the Law of Reconstituted Arbitral Tribunals By Marc J. Goldstein Do-overs are much-discussed in the news, as the President and Chief Justice of the United States decided, in an abundance of caution, to re-enact the administering of the Constitutionally-mandated oath of office in a White House ceremony attended by roughly 500 million fewer people than witnessed the original stumbling performance at mid-day on January 20, 2009. Do-overs in arbitration are again a topic of discussion, after the recent decision of a federal district judge in New York that ordered an arbitration to start anew and…
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January 20, 2009

Corrections to Arbitral Awards and the Functus Officio Doctrine

Dear Readers In the coming weeks I will argue a case in the United States Court of Appeals for the Second Circuit that involves a rarely addressed arbitration issue: the power of the arbitrator to make corrections in a final award by issuing an amended final award. I will therefore not discuss the issue at length in this posting, reserving full commentary until after the Second Circuit decides the case. But a brief synopsis of the issue is in order. Virtually all institutional and ad hoc rules governing international arbitrations provide, in nearly identical terms, that the arbitrator may correct…
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January 15, 2009

Non-Party Discovery In Arbitration

Non-Party Discovery in Arbitration: The Second Circuit Weighs In By Marc J. Goldstein It is an often-overlooked fact that the Federal Arbitration Act (“FAA”) is now a very “old” statute. Enacted in 1925, and not notably amended since then (except to add Chapters 2 and 3, governing matters under the New York and Panama Conventions, respectively), the FAA is 13 years older than the Federal Rules of Civil Procedure. The 83-year-old first chapter of the FAA says either nothing or very little – depending on one’s reading of Section 7 — about pre-hearing discovery in arbitrations subject to the Act….
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January 09, 2009

Manifest Disregard — Colorado Bar Presentation

Hall Street Associates v. Mattel, Inc. and the Uncertain Future of Manifest Disregard of the Law By Marc J. Goldstein The decision of the US Supreme Court in Hall Street Associates v Mattel, Inc. , in March 2008, was possibly the Court’s most important ruling on federal arbitration law in this nine-year-old milennium. The Court granted certiorari to decide, and did decide, an unsettled important question: whether the scope of federal judicial review of arbitral awards may be expanded, by contractual agreement, beyond what the Federal Arbitration Act (“FAA”) provides. That question was answered in the negative. But the provocative…
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