Recent Posts

January 31, 2015

9th Circuit Rescues Gambling Las Vegas Arbitrator

Here in the United States, where most otherwise-retired lawyers, and a fair number of late-career pastry chefs and insurance sellers, seek to reinvent as commercial arbitrators, the warning to aspiring arbitrators “not to give up [their] day job[s],” at least not without a healthy sustaining pension, is often heard. But one arbitrator in Las Vegas heeded this warning a bit too seriously, causing enough “evident partiality” havoc in the federal district court there to move the 9th Circuit Court of Appeals into an immediate rescue action by means of the rarely-used writ of mandamus. In re Sussex, 2015 WL 327558…
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December 02, 2014

The Second Circuit Blinks on Competence-Competence

As the compétence-compétence stare-down continues between the U.S. courts and the drafters of the American Law Institute’s Restatement of the Law of International Commercial Arbitration, rather few seem to have taken notice that the U.S. Second Circuit Court of Appeals may have blinked. The reflexive twitch happened on Halloween (boo!), when the Second Circuit in NASDAQ OMX Group, Inc. v. UBS Securities, LLC, 770 F.3d 1010 (2d Cir. Oct. 31, 2014) affirmed a preliminary injunction — based upon a judicial first instance determination of non-arbitrability — that prevents UBS from arbitrating claims against the NASDAQ for damages allegedly caused by…
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October 31, 2014

Coping With The Party Boycott

An occasionally encountered problem in international commercial arbitration is the Party Boycott. I will use that term here to refer to the situation where a Respondent in a pending arbitration registers its objection to arbitral jurisdiction systematically through a two-pronged strategy: (1) seeking an anti-arbitration injunction in a friendly court, and (2) refusing any participation in the arbitration itself. Formation of the Tribunal When the Tribunal is to be formed according to a list procedure by the administering institution, the Boycotting Party’s refusal to strike-and-rank the listed candidates typically entails that the institution will select the arbitrator or arbitrators. (As…
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October 31, 2014

Food for Thought on Equitable Estoppel of Nonsignatories

Among the common law theories in American law that may permit enforcement of an arbitration clause against a non-signatory, equitable estoppel is perhaps the most elusive. Its application is intensely fact-dependent, and different sets of equitable considerations apply depending on whether the party seeking to invoke arbitration is the non-signatory or the signatory. And when the matter comes before an American court, this is essentially a question of state law, and different states have different refinements of the conduct standards that may trigger estoppel as well as variations in the evidentiary burden that the party invoking estoppel must satisfy. These…
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September 02, 2014

Back From The Beach: Did You Brush Up Your Bazzle?

Before the author of Arbitration Commentaries was deployed to the trenches and thus temporarily lost to his readers (some would say mercifully), it was written in this c-space that the “Next Cool Thing” in U.S. arbitration jurisprudence, after BG Group v. Argentina, would be the question of who decides — court or arbitrator — whether an arbitration clause permits class arbitration, when the parties have no agreement on the “who decides” question itself. See “Brush Up Your Bazzle,” Arbitration Commentaries, July 1, 2014.  A four-judge plurality of the Supreme Court in Bazzle was prepared to hold that the question of…
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September 02, 2014

More Difficulty With Arbitral Subpoenas

The use of subpoenas by arbitrators pursuant to Section 7 of the Federal Arbitration Act remains an evolving area of arbitral practice. There are several sources of difficulty. One is how to adapt the language of a 1925 statute to complex and multinational disputes. Another is that arbitral subpoenas shall be judicially enforced with reference to judicial rules of procedure governing compulsion of the attendance of witnesses. A third issue is how technology and especially video technology should affect the ability to secure evidence from an individual who resides very far from the seat of arbitration and sometimes overseas. Suppose…
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