Marc J. Goldstein Arbitrator & Mediator NYC
August 31, 2022

Comity Unhinged?

Dear Readers, you have a lengthy double-feature here on the Blog, for the soon-to-be-departed month of August. And in the movie-going days of our parents’ youth that usually meant the rest of the show would consist of “short subjects” – maybe a newsreel and Woody Woodpecker cartoon.
So I bring you one short subject, and it would be longer but I have to go back to work.
Most of you are Chromalloy buffs. That is, you crave new developments in the evolution of the law concerning recognition and enforcement, or not, of foreign awards that have been set aside by a court at the place of arbitration.
So, dear readers, please read Esso Exploration & Production Nigeria Ltd. v. Nigerian National Petroleum Corp., 40 F.4th 56 (2d Cir. July 8, 2022) and, if you can retrieve it (which I have done but cannot link it), Professor Bermann’s amicus brief that presented arguments tending to support potential US enforcement of the vacated award, where he wrote by way of introduction that “US international arbitration law would benefit if the Court were to take this opportunity to confirm that courts must holistically consider all circumstances before them in deciding whether to give effect to a foreign annulment decision.”
And if you are organizing a little Chromalloy Coffee Klatsch, or maybe a chat group around the 18th tee at Gleneagles, take up the question of when and how the burden may shift to the proponent of a foreign annulment judgment that favors the host State as a party, to demonstrate the entire fairness of and the absence of corruption influencing the judicial process by which the foreign judgment was rendered.

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