Marc J. Goldstein Arbitrator & Mediator NYC

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January 29, 2024

Arbitrator Disclosure: A Plea for Help to the US Supreme Court

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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Recent Posts

January 08, 2024

Thoughts on the Public Policy Exception to Award Enforcement: Potential Foreign Influences on US Law

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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November 02, 2023

Gotham Novit Curia

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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August 04, 2023

On Contempt and Award Compliance

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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May 30, 2023

Predicting Rain for Spain

I spent a recent weekend in a former Member State of the European Union. You know, the one that didn’t care for all this EU Primacy stuff, and bailed. I was amidst a sizeable group of QCs turned KCs. And they all asked the same question: “What’s up in Washington?” I started in about Tucker Carlson but was quickly cut short. “No, no, young fellow. We mean all this stuff about Spain and the DC Circuit.” So I gave them the two-minutes-over-cocktails version of “Achmea in the US Courts 2023.” But you all have your own beverages, and more time. …
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April 20, 2023

Convention Clarity in the USA

In the world of the New York Convention, it is widely if not universally understood that the grounds for annulment of an Award to which the Convention applies are provided not by the Convention, but by the domestic arbitration law of the arbitral seat (or other lex arbitri agreed by the parties). That principle has also been widely understood in US federal courts, but alas, until last week, not – at least not definitively and clearly — in the important US Eleventh Circuit Court of Appeals. The Eleventh Circuit has now come around. This was foreshadowed in a panel decision…
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March 25, 2023

On Taking Back Land for Pandas 🐼

Readers of this post will fall into two groups. The first and largest don’t pay much attention to investment arbitration. They will wonder why I write this. The second and much smaller group lives and breathes investment arbitration. I will rejoice if they read this.