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January 18, 2011

Enforcement of International Arbitration Clauses By Non-Signatories: The Meaning of “Arbitral Equitable Estoppel”

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Today I will attempt to bring some clarity to American federal law concerning enforcement of international arbitration clauses by non-signatories.  I will discuss two recent cases, one in Texas and the other in New York, in each of which a non-signatory sought to compel a signatory to arbitrate claims on which the signatory had commenced litigation.  In the Texas case, a US company (“Licensee”) had an arbitration agreement with a Dutch company (“Licensor”), contained in a technology license agreement. After Licensee rejected a takeover bid from Licensor, the US subsidiary of the Dutch company (“Licensor Sub”), according to Licensee, conspired…
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December 22, 2010

Choice-of-Law Regarding Arbitrability With Non-Signatories: Wading Through the Morass

Before we part ways in flight to family hearths, groomed pistes, and pristine sandy beaches nearer to the Equator, let us return briefly to one of the favorite topics of Arbitration Commentaries and its readers:  arbitrability with non-signatories, and specifically the choice-of-law governing arbitrability in regard to non-signatories.   A war story begins today’s installment. My Hong Kong client contracted to sell software to a New York company and in the contract provided for Hong Kong governing law and the resolution of disputes by arbitration. The contract named no arbitral institution, nor any rules, place of arbitration, or method to…
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December 18, 2010

A Sensible Non-Application of Functus Officio to Divergent Partial and Final Awards

The functus officio doctrine returned to center stage this week, with a new decision in a New York Convention case from the U.S. Fourth Circuit Court of Appeals. Here, a partial award determined that a contract had been breached, but the subsequent final award determined that the same contract was unenforceable. In the circumstances, the Court held, the final award was enforceable and confirmation of the partial award could be (and properly was) refused under the Convention by the district court. (AO Techsnabexport v. Globe Nuclear Servs. & Supply, Inc., 2010 U.S. App. LEXIS 25640 (4th Cir. Dec. 15, 2010))….
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December 14, 2010

Intel “Discretionary Factors” Considered ln Chevron’s Section 1782 Cases

The efforts of Chevron Corporation to obtain evidence under 28 U.S.C. § 1782 for use in litigation in Ecuador’s courts  and in a BIT arbitration against the Government of Ecuador has given U.S. District courts in a number of jurisdictions the opportunity to consider the discretionary factors affecting the availability of section 1782 discovery. Such discretionary factors were identified by the U.S. Supreme Court in the Intel case. (Intel Corp. v. Advanced Microdevices, Inc., 542 U.S. 241 (2004)).   Chevron is the defendant in private environmental litigation in Ecuador, and contends that the Government of Ecuador has improperly colluded with…
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December 07, 2010

Bankruptcy Court’s Rejection of Collateral Attack on Convention Award is Sustained

Observers of the relationship between the New York Convention and U.S. bankruptcy proceedings will take interest in a recent decision of a federal district court in Pittsburgh, in which the Court rejected the bankruptcy trustee’s attempt to collaterally attack an ICC arbitration award and the judgment entered on that award. G&G Investments, Inc. v. Buschmeier, 2010 U.S. Dist. LEXIS 125902 (W.D. Pa. Nov. 30, 2010).   The bankruptcy debtor in G&G Investments had: contracted to purchase a controlling interest in a German company; attempted to rescind and recover its initial payment; and then lost an ICC arbitration in which it was…
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October 31, 2010

Confidentiality of Settlement Communications in the Arbitral Context: Thoughts Motivated by a New UK Decision

The decision earlier this week of the UK Supreme Court, that facts disclosed in confidential settlement discussions are admissible to interpret the settlement agreement achieved (Oceanbulk Shipping & Trading SA v. TMT Asia Ltd. & Ors, [2010] UKSC 44 (27 October 2010)), may contribute in a useful way to current discussions about ethical rules of conduct for counsel in international arbitrations. The decision is useful to the debate over arbitration counsel ethics, because it re-focuses our attention on the reasons for what is known in the UK as the “without prejudice” rule. That rule, as the decision reminds us, is…
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