Recent Posts

The pro-arbitration foreign anti-suit injunction is not mentioned in the text of the New York Convention or the U.S. Arbitration Act (FAA). But its importance to the enforcement of agreements to arbitrate transnational disputes is considerable. To be reminded of this, read a recent New York federal district court decision granting such an injunction: Bailey Shipping Ltd. v. American Bureau of Shipping, 2013 WL 5312540 (S.D.N.Y. Sept. 23, 2013). Or continue reading this Commentary. A definitional note is a useful place to begin. This brand of injunction is “pro-arbitration” because it is granted to protect the jurisdiction of the arbitral…
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The denunciation in early 2012 of the ICSID Convention by the Venezuelan government of the late Hugo Chavez left some US energy sector investors unaffected, as Venezuela had never seen fit to make a bilateral investment treaty with the United States that would have enable US investors to access ICSID arbitration via a US BIT. And in the absence of an investment treaty to channel disputes into arbitral tribunals, it was predictable that the nationalist economic policies of the Chavez government would attract some afflicted investors to try their luck bringing suits against Venezuela in US federal courts. For those…
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Shall we applaud, or regret, the latest decision from a panel in the US Second Circuit Court of Appeals concerning the quality of proof needed to vacate an international arbitration award for “evident partiality or corruption”? (Kohel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, No. 12-3247-CV (2d Cir. Aug. 30, 2013). Shall we applaud the fact that an arbitral award survived a motion to vacate by the losing side, and see this as another heartening judicial vindication of the arbitral process and an admirable exercise in judicial non-intervention– even though the “process” in this case was an…
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One of the least discussed powers of the Arbitral Tribunal is the power of suggestion. Professor Piero Bernardini, a well-reputed continental arbitrator and scholar, has described the arbitrator’s task in achieving an efficient process as “a balance between ‘proactive and judicious efforts’ to move proceedings forward in an efficient manner while at the same time ensuring respect for party autonomy and equality.” Volumes have been written about arbitral efficiency and party autonomy but rather little about how these themes are harmonized in the day-by-day practice of the craft of arbitrating. One of the presumed character differences between the judge and…
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You may not recall the last time a hearsay objection was sustained by an arbitral tribunal. And understandably so. Arbitrators “take [the hearsay evidence] for what it’s worth,” and steer clear of challenges to their awards on grounds (FAA Section 10 (a)(3)) that they committed “misconduct” by “refusing to hear evidence.” But just suppose: In a real estate arbitration to determine fair value for purposes of a partner buy-out, all of Respondent’s written evidence of fair value is excluded as hearsay by the arbitrator. For example, a written offer to purchase the property was excluded as hearsay, on the theory…
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Last week’s decision by the US Ninth Circuit Court of Appeals that incorporation of the UNCITRAL Rules in an arbitration clause is considered as a matter of federal arbitration law to be a clear and unmistakable delegation to the arbitrators of exclusive power to decide the scope of arbitrable issues — [Oracle America, Inc. v. Myriad Group A.G., 2013 WL 3839668 (9th Cir. July 26, 2013)] — may at first blush appear to be uneventful news, at least for practitioners who do not practice in the 9th Circuit or often frequent its federal district courts to pursue or resist arbitration….
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