Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

July 17, 2013

FAA Pre-Emption of State Law Limits on Arbitration: The Ninth Circuit Grapples with Concepcion

In the Concepcion case in 2011 [AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740], five Justices of the Supreme Court of the United States agreed that the FAA pre-empts a rule of state law that makes an arbitration agreement unconscionable if the agreement prohibits class arbitration.  The actual implications of Concepcion for class arbitration remain murky, as the Supreme Court’s other recent decisions relating to class arbitration have been context-specific. Thus in Stolt-Nielsen the Court’s decision (5-3) was “anti-” class arbitration [Stolt-Nielsen S.A. v. Animalfeeds International Corp., 559 U.S. 662 (2010)], because the tribunal had no basis in the contract…
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June 29, 2013

The Supreme Court Returns to the Playing Field of Arbitral Power to Determine Jurisdiction

June was a fertile month for arbitration jurisprudence at the Supreme Court of the United States, and most of you know already that: 1) the Court held, 8-0, that class action arbitration is OK if the arbitrator is even arguably construing the arbitration clause when ruling that the case may proceed as a class action (Oxford Health Plans, LLC v. Sutter, No. 12-135 (Jun. 10, 2013)), (2) the Court held, 5-3, that class arbitration is not OK when the agreement expressly forbids it, even if the consequence is to make pursuit of a federal statutory treble damages claim hopelessly uneconomical…
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May 29, 2013

Enforcement of Interim and Partial Awards: Emerging Coherence in US Law?

Modern institutional arbitration rules encourage international arbitrators to address complex disputes surgically, by issuing partial and interim awards to prioritize solving the most difficult and contentious issues.  But American arbitration law offers arbitrators little helpful guidance about when their non-final awards may be confirmed or vacated.  And counsel in arbitrations seated in the US must do some educated guesswork as they try to fashion effective arbitration strategies with an eye toward judicial review . This is especially so as regards interim measures of protection, as the option of obtaining relief from the arbitral tribunal may be unattractive if the measures…
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May 16, 2013

Vacatur of Convention Awards in U.S. Courts: Fresh Cases and Fresh Thoughts

One of the larger waves crashing on the shores of international arbitration as the result of the Restatement (Third) of the Law of International Arbitration is the position — clearly restating existing law — that the grounds stated in Article V of the New York Convention for refusal of recognition of an award should be the exclusive grounds for U.S. judicial annulment of an award made in the U.S. — notably to the exclusion of the doctrine of manifest disregard of the law, and, for that matter, all of the grounds in FAA Section 10. (This is Section 4-11 of…
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May 12, 2013

Section 1782 and The Tribunal’s Control of the Procedure: Some Recent Experience

Sometimes obscured in the conversation over whether Section 1782 of the U.S. Judiciary Law even applies to private international commercial arbitration is the question of whether such judicially-enabled discovery offends core values of international arbitration —  intruding upon the arbitrators’ control over the proceedings, and tilting an initially level evidence-gathering playing field in favor of the party that benefits most from evidence located in the United States. A successful ex parte Section 1782 application before a New Jersey U.S. District Court in November 2012 provides a useful point of entry to examine this question. (In re Mesa Power Group, LLC,…
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April 30, 2013

May Recognition of An Award Be Revoked Based on Post-Judgment Annulment at the Seat?

Today’s topic is the power of a US District Court, if any, to reconsider its recognition and enforcement of a foreign arbitral award governed by the New York Convention when, after giving a judgment confirming the award here in the U.S., the award is vacated by a competent court at the foreign seat of the arbitration. And if such power exists, when should it be exercised? To set the stage, suppose the award creditor seeks confirmation in the US, and the award debtor opts at that stage not to commence vacatur (annulment) proceedings at the seat and not to request…
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