Recent Posts

Received wisdom in selecting an arbitration seat, if the goal is arbitration unencumbered by “American-style discovery,” is to avoid America. Today we take a close look at one factor in that supposedly common calculus — obtaining evidence from non-parties. In an arbitration seated in London (or elsewhere beyond US borders), pre-hearing discovery in the United States may quite possibly be had by a subpoena for documents or deposition testimony issued by US counsel in the name of a US court after the grant of an order permitting such discovery issued by the US District Court in the district where the…
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Just when you thought you knew what you needed to know about enforcement (or not) of annulled foreign awards, along comes the Yukos case in yet another chapter. This one is entitled What to Do While We Wait for the Dutch Appeal?. It is written by a US District Court judge in Washington DC. And the Answer is: Just Wait! (Hulley Enterprises Ltd. v. Russian Federation, 2016 WL 5675348 (D.D.C. Sept. 30, 2016)). In case you are recently returned from the Gulag, here are the basics: tagged with a $50 billion award by a Dutch-seated Tribunal, for carrying out a…
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Your commentator can get cranky about arbitrator disclosure. Okay, okay, I can get cranky about many subjects, but still. Party-appointed arbitrators are not going away any time soon, and courts (at least US courts) are not adopting a strong law-and-order stand on “evident partiality.” So, as you think about the disconnect between the disclosure/independence standards of big providers like the AAA, and the test for vacating awards for “evident partiality” in big reviewing courts like the US Second Circuit Court of Appeals, read Merck & Co. v. Pericor Therapeutics, Inc., 2016 WL 4491441 (SDNY Aug. 24, 2016) and maybe weep…
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If you are a casual reader of recent US case law concerning investment treaty arbitration, and have not committed to spending less time following the US presidential election and more time poring through 400-odd page investment arbitration awards, you might have missed this remark by the Arbitral Tribunal (constituted under the Stockholm Chamber of Commerce Rules pursuant to the arbitration clause of the Energy Charter Treaty) in its December 19, 2013 Final Award in Stati v. Republic of Kazakhstan: “[T]here are only a modest number of investment treaty cases on record in which a state’s mistreatment of an investor was…
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Dear foreign readers, this is one of those posts about the architecture of American arbitration law that may leave you convinced that the US could make itself great again by shredding the Federal Arbitration Act (FAA) and installing in its place the UNCITRAL Model Law, or at least the Magna Carta. But do read on. This report concerns one of the infamous “circuit splits” — divergent positions among US federal courts of appeals — that may lead to definitive adjudication in the US Supreme Court. And whereas this split derives from opposite positions about what the Supreme Court has said…
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One may read several times over the long-awaited decision of the US Second Circuit Court of Appeals upholding the confirmation under the Panama Convention of a $300 million commercial arbitration award against Mexico that had been annulled by a Mexican court at its Mexican seat, searching upon each fresh reading for some hint of a more generous opening for US enforcement of annulled foreign awards than the very restrictive case of an annulment that offends fundamental principles of US public policy. The repeated readings are not likely to bear fruit; the Second Circuit evidently is willing to go only this…
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