Dear Readers: Apologies to those of you who enjoy these posts, for a relatively long hiatus. It has been a busy time these past several months. Today’s post is lengthy, warranting its organization into numbered paragraphs. A 2-1 divided panel decision of the US Court of Appeals for the District of Columbia Circuit on August 9, 2024, in an Investor-State award enforcement case implicating the New York Convention and the “arbitration exception” of the Foreign Sovereign Immunities Act (FSIA), deserves serious attention because of what did not happen. Two judges of the Court rejected the dissenting judge’s contention that the…
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Alter ego entities are a pervasive presence in complex international commercial arbitrations If those entities are named as Respondents, and they are non-signatories of the arbitration agreement, two procedural courses are possible. The first, and perhaps the more common, is that the alter egos will raise an objection to arbitral jurisdiction, and participate in the arbitration subject to that objection. This participation may or may not entail an express submission of the alter ego issue to the arbitrators – and whether there has been such a submission of course affects the scope of judicial review of the Tribunal’s decision on…
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There are many good reasons for the Supreme Court of the United States to grant the petitions for writ of certiorari now before the Court in two cases involving the question of whether international arbitrators’ undisclosed professional relationships justify vacatur on the basis of evident partiality.  The main theme of each of those cert. petitions – that there is a “split” among the federal judicial circuits concerning the relevant test derived from the Court’s 1968 decision in the Commonwealth Coatings case – is sensibly crafted to attract the enthusiasm of the Court. But for those of us who, perhaps more…
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This Commentary concerns the scope of judicial review in US courts when an arbitral tribunal in an international case decides whether or not to enforce a contract that is illegal, or is tainted with illegality, whether under the law applicable to the contract or other relevant law such as the law in force at the place of performance. If the losing party in such a case asks a US court to refuse recognition and enforcement of a foreign award, or in a US seated case asks for the award to be vacated, in either situation on the basis that enforcement…
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If you insist that international arbitrators sitting in an environmentally common law case cannot properly look at or consider any legal authorities other than those submitted by the parties, stop reading here. I am here to preach to the convertible. Let’s begin this discussion with a nod toward a legal doctrine that has essentially no shelf space in US arbitration law or US practice of domestic or international commercial arbitration: Jura Novit Curia (“JNC”), or in its arbitral variant, Jura Novit Arbiter (“JNA”).  We start there because among those who arbitrate in a procedural culture called the adversary system, which…
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Arbitral tribunals are in the habit of thinking seriously about how their handling of the case affects the “enforceability” of their Awards. But we mainly think of “enforceability” as the potential for confirmation under the New York or Panama Convention, and/or applicable domestic arbitration law,  and potential vacatur in a court at the arbitral seat. We give less attention to true “enforcement” – the forced compliance of the losing party with a Judgment confirming an Award. When the Award simply orders payment of money, or declares ownership of property, the laws and mechanisms of execution come into play. But if…
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