Recent Posts

October 08, 2016

Do Tell

Your commentator can get cranky about arbitrator disclosure. Okay, okay, I can get cranky about many subjects, but still. Party-appointed arbitrators are not going away any time soon, and courts (at least US courts) are not adopting a strong law-and-order stand on “evident partiality.” So, as you think about the disconnect between the disclosure/independence standards of big providers like the AAA, and the test for vacating awards for “evident partiality” in big reviewing courts like the US Second Circuit Court of Appeals, read Merck & Co. v. Pericor Therapeutics, Inc., 2016 WL 4491441 (SDNY Aug. 24, 2016) and maybe weep…
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September 06, 2016

Set Aside Time

If you are a casual reader of recent US case law concerning investment treaty arbitration, and have not committed to spending less time following the US presidential election and more time poring through 400-odd page investment arbitration awards, you might have missed this remark by the Arbitral Tribunal (constituted under the Stockholm Chamber of Commerce Rules pursuant to the arbitration clause of the Energy Charter Treaty) in its December 19, 2013 Final Award in Stati v. Republic of Kazakhstan: “[T]here are only a modest number of investment treaty cases on record in which a state’s mistreatment of an investor was…
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September 05, 2016

Making US Arbitration Law Great Again

Dear foreign readers, this is one of those posts about the architecture of American arbitration law that may leave you convinced that the US could make itself great again by shredding the Federal Arbitration Act (FAA) and installing in its place the UNCITRAL Model Law, or at least the Magna Carta. But do read on. This report concerns one of the infamous “circuit splits” — divergent positions among US federal courts of appeals — that may lead to definitive adjudication in the US Supreme Court. And whereas this split derives from opposite positions about what the Supreme Court has said…
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August 03, 2016

Null But Not Void

One may read several times over the long-awaited decision of the US Second Circuit Court of Appeals upholding the confirmation under the Panama Convention of a $300 million commercial arbitration award against Mexico that had been annulled by a Mexican court at its Mexican seat, searching upon each fresh reading for some hint of a more generous opening for US enforcement of annulled foreign awards than the very restrictive case of an annulment that offends fundamental principles of US public policy. The repeated readings are not likely to bear fruit; the Second Circuit evidently is willing to go only this…
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August 03, 2016

Bluster in the Windy City

Dear Readers, I do like Chicago. It’s my kind of town. The Friendly Confines. The Tarzan Pool.  The Tribune Tower. And of course, not to be missed, the US Seventh Circuit Court of Appeals, usually friendly confines for arbitration awards. But sometimes even the best of friends can be cranky and difficult. They have bad hair days. And today, here in the friendly confines of my New York summer office, I submit to you that the eminent Seventh Circuit jurist Richard Posner had such a day in Bankers Life & Casualty Co. v. CBRE Inc., 2016 WL 4056400 (7th Cir….
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July 02, 2016

Patriot Games

Arbitration lawyers follow Tom Brady’s case as they would track a Patriots game while in dutiful attendance at a painfully mis-scheduled wedding of an in-law’s niece on an otherwise perfect October Sunday. At obsessively frequent intervals, they check the Internet for score updates and game highlights. You are reading this, so how can you disagree? Arbitration Commentaries is your nfl.com. You should know by now that the most popular Ted in Boston is not a Williams, not a Kennedy, but an Olson, as in Theodore C. Olson, the ex-Solicitor General now enlisted by the Brady team for the en banc…
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