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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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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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Does an arbitrator exceed her powers when, as a remedy for fraud in the inducement of a limited-duration intellectual property license, she modifies the contract “as a matter of law” to provide the licensor with a perpetual royalty-free license? The U.S. Fifth Circuit Court of Appeals, reversing a Texas district court’s vacatur order, held that the arbitrator’s award should stand. (Timegate Studios, Inc. v. Southpeak Interactive, L.L.C., 2013 WL 1437710 (5th Cir. April 9, 2013)). Even though the question presented was whether the arbitrator could rewrite the contract as a fraud remedy, the Court held that the relevant legal test…
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Evidently undaunted by the Second Circuit’s dismissal of an award confirmation case on grounds of forum non conveniens (Figueiredo Ferraz E Engharia de Projeta Ltda. v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011)) — or at least convinced of the Figueiredo panel majority’s idiosyncratic take on the “public interest” factor in forum non analysis — a federal district judge in New York recently denied a forum non conveniens motion to dismiss a confirmation action between Antiguan parties on both sides, arising from an arbitration that took place in Puerto Rico. (Leeward Constr.  Co. v. American Univ. of Antigua, …
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It has been nearly 45 years since the Supreme Court of the United States decided the Commonwealth Coatings case (Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968)) and addressed for the only time in its history the meaning of the term “evident partiality,” which appears in Chapter One of the FAA as a ground for setting aside an Award. No single opinion or rationale commanded a majority of the Justices in that case, and the legacy of the case has been generally associated with the concurring opinion of Justice White, who was able to support the affirmance…
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Some rules and principles relating to enforcement of international arbitration awards are essentially matters of common sense.  Foremost among them are rules relating to the currency of judgments enforcing awards, and post-award interest. But as they are not often the subjects of reasoned judicial decisions, it is useful to take note when well-reasoned decisions come along. Today’s text is from a federal district court in Washington D.C., which addressed currency conversion and interest issues associated with a judgment enforcing a large arbitration award, made in London and rendered in British pounds and Nigerian niara, against the Federal Government of Nigeria….
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