Recent Posts

July 02, 2016

One Step at a Time

If you drafted this arbitration clause, ‘fess up: “In the event of any dispute and if the Parties cannot resolve the dispute through negotiation, the Parties agree first to try in good faith to settle the dispute by formal arbitration under the [ICC Rules] before submitting the matter to litigation….” Talk about a step clause to trip over. What is a district court judge to do? The answer: Enforce the arbitration agreement as an agreement for binding arbitration, the only form of arbitration the ICC Rules permit. So held a judge of the US District Court in New York. Celltrace…
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June 29, 2016

Penniless Parties

Get ready for the upcoming conference on Impecuniousness in Commercial Arbitration. No, not another session on third-party funding. Rather, our subject will be the law applicable to the inability of a party to pay its share of the arbitrators’ fees. And our main text will be a new (really) decision from the US Ninth Circuit Court of Appeals, holding that when an AAA commercial arbitration under the Commercial Rules has been terminated by the tribunal due to Claimant’s non-payment of deposits for arbitrator fees, and the reason for non-payment was genuine inability to pay, the federal district court should allow…
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May 02, 2016

Swirling Rumors

Rumors have reached Arbitration Commentaries concerning the recent professional activities and virtual invisibility of our founder and long-time supporter Marc J. Goldstein. It has been said that he is locked in a consuming legal battle on behalf of a European technology client against a once-mighty and still formidable American technology colossus, that the controversy is pending in a federal judicial forum in New York, and that there is as a consequence indeed a measure of truth to the “Litigation” within Marc J. Goldstein Litigation & Arbitration Chambers.   So intensive are the supposed demands of the dispute that Mr. Goldstein has…
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May 01, 2016

Arbitration Deflated

So are we to think that the rightful power of arbitrators has been vindicated as a matter of principle by the US Second Circuit Court of Appeals’ 2-1 panel decision reinstating Tom Brady’s four-game suspension? This commentator says no, and if you think this is mainly because my tailgate party for the Buffalo Bills at New England Patriots game on October 2 will be a less lustrous event with #12 maybe off the premises*, you would be only half right. (Come to the party anyway. We start about 11 am). On the question of whether the four-game suspension was discipline…
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May 01, 2016

After Justice Scalia, The Deluge?

Life does sometimes present good second chances. And Arbitration Commentaries aspires to be more like life. Really. So for all of you who spurned your invitations to the April 21, 2016 meeting of the International Arbitration Club of New York, or failed even to be present in New York on the date, you will find linked HERE. the transcript of remarks delivered on that occasion by our supporter and friend Marc J. Goldstein about the prospects for arbitration jurisprudence at the US Supreme Court in the post-Scalia/possibly Garland era. Only one photograph of the event remains in circulation; Arbitration Commentaries…
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May 01, 2016

Your Next Trip to the Library

What? You have nothing good to read? You been through all the new biographies of Donald Trump but seek something absorbing? Perhaps this space can help. A rumor has reached Arbitration Commentaries that, beginning in the week of May 2, you should be able to read online “Living (Or Not) With the Partisan Arbitrator: Are There Limits to Deliberations Secrecy?” This article has been written by Marc J. Goldstein, a New York attorney (still) and a long-time supporter of Arbitration Commentaries. The online source to read this piece, one surmises, is the website of Arbitration International (http://arbitration.oxfordjournals.org) (last visited April…
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