Recent Posts

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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December 24, 2008

US Appeals Court Upholds Reinsurance Arbitration Clause

The U.S. Court of Appeals for the Fifth Circuit has upheld the arbitration clause in a reinsurance contract between Certain Underwriters at Lloyd’s and a Louisiana-based self-insurance fund. The Court rejected a contention by the Louisiana fund that a 1945 federal statute that commits insurance regulation to state law, permits a state to deny enforcement of arbitration clauses in insurance contracts.  Safety National Casualty Corp. v. Certain Underwriters at Lloyd’s, London, 2008 U.S. App. LEXIS 20917 (5th Cir. Sept. 29, 2008).  The decision represents an important victory for foreign and offshore reinsurance firms, who regularly seek to arbitrate disputes with…
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