Recent Posts

Shame on you (!!), subpoena-issuing international arbitrators sitting in Dallas, Texas. Here in NYC, where we have wrestled, maybe not to the ground but mightily, with the problem of arbitral subpoenas, we are reading about your case (Matter of Arbitration Between Tang Energy Group Ltd. and Catic USA, 2015 WL 4692459 (N.D. Cal. Aug. 6, 2015), and asking ourselves: “How ‘Bout Them Cowboys??!!“ Dear colleagues, if a party in your case wants a subpoena for a non-party witness located in San Francisco — even if he is a recognized international arbitration lawyer in San Francisco — then take your hearts,…
Read More »

All of us had to start somewhere. A few famous people perhaps reading or perhaps declining the invitation to read this post started in this business, sort of, back in the early/mid ’80s in a case-for-the-ages about an aborted hotel venture near the Pyramids. (Your author was, back in the day, doing legal battle with the Ayatollah K, who took our clients’ condo complex in Teheran by force and made a nice living in the real estate business, for a time). Anyway, more about the Pyramids case (Southern Pacific Properties (SPP) v. Arab Republic of Egypt, for you fussy types;…
Read More »

Pity poor Tiffany’s. Teeming with gold. Silver. Diamonds. Basking in the perpetual cinematic afterglow of a youthful Audrey Hepburn. But there is real suffering here at 57th and 5th. Consider: Tiffany’s remains mired in a trademark infringement debacle, in a US court in Manhattan, against online knock-off con artists who keep their accounts in Chinese banks. Legally savvy crooks, they have not bothered to defend the action on the merits, instead absorbing default judgments but wagering, wisely so far, on the ineffectiveness of US judgment enforcement methods to reach their assets in China. In the latest chapter, the federal district…
Read More »

Responding to the anguished cries of readers for a succinct review of the fate of Discounted Cash Flow (DCF) valuation methodology in recent investment arbitrations — a review to be offered without payment of conference fee, airplane fare, or subscription — Arbitration Commentaries steps to the lectern and reports: 1. In the now-legendary Yukos case, the controlling shareholders of the erstwhile oil colossus advanced DCF valuation as one of four alternative valuation methods, along with “comparable companies” and “comparable transactions” valuations as of the same date as the DCF valuation, and a “market capitalization” approach as of an earlier date….
Read More »

When the U.S. Second Circuit Court of Appeals speaks about arbitration, here at Arbitration Commentaries the ignition key turns, and the engine of this rusty old four-by-four squeals, wheezes, and eventually springs to life. This month’s fuel is judicial provisional relief in aid of arbitration. (Benihana, Inc. v. Benihana of Tokyo, 2015 WL 1903587 (2d Cir. April 28, 2015)). First, a few facts about the case. It is about restaurants and hamburgers. In simplified form with some innocent liberties taken: Franchisor asserts menu control rights over franchisee, which franchisee allegedly violates by allegedly selling hamburgers in its franchised restaurant in…
Read More »

Just when you thought America’s international arbitration lawyers had finally moved on from the exhausted (but not quite conclusive) debate over whether the federal international judicial assistance statute codified at 28 USC §1782 (“1782”) applies to private international commercial arbitrations, along come two decisions from two federal district courts, involving essentially one coordinated quest for discovery in the same arbitration.  Each federal district court decision reaches the same result: thumbs down on the proposed use of 1782 for non-party discovery in private arbitration because a private, contract-based Arbitral Tribunal is not the type of “tribunal” Congress had in mind when,…
Read More »