Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

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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May 13, 2009

Arbitration Clause Held Null and Void Due to Conduct Waiver

Federal district courts have ample power to dissolve a stay of proceedings pending arbitration, and order the parties to proceed with the litigation, where the party that initially invoked arbitration thereafter acts systematically to prevent the arbitration from taking place. A recent federal district court decision makes these powers clear. In Apple & Eve, LLC v. Yantai North Andre Juice Co., 2009 U.S. Dist. LEXIS 32548 (E.D.N.Y. April 27, 2009), the defendant was a commercial entity domiciled in the People’s Republic of China. After plaintiff commenced suit in a New York State Court, defendant removed the action to federal court…
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May 12, 2009

Return

Dear Readers I apologize that there have been no new postings between April 2 and today’s date. In the interim, I prepared for the trial of an international commercial case governed by the UN Sale of Goods Convention (CISG), which was pending in the U.S. District Court for the District of New Jersey. With active encouragement from the Court and assistance with mediation by the assigned U.S. Magistrate Judge, the matter was resolved before opening statements. The client having returned to Italy yesterday, I am at liberty to return to blog-posting for a few days. Warm regards. Marc