Recent Posts

This commentator apologizes for his prolonged absence, explained largely in two words: provisional relief. In the representation of the Claimant in an ICDR arbitration seated in New York, there has been occasion to apply successfully for (i) judicial Mareva freezing orders in aid of arbitration in three foreign jurisdictions, (ii) an ICDR Emergency Arbitrator’s Partial Final Award directing access to the property in dispute; (iii) an arbitral Mareva freezing order and order for security for the amount in dispute, given as an Interim Award; (iv) judgments in the U.S. District Court and in the three foreign Mareva jurisdictions, confirming the Interim Award under the New York Convention; and…
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In a recent case, the removal of an action from state to federal court based on Chapter Two of the FAA (Section 205) and the New York Convention raised a question that puzzles this writer but evidently did not cause any hesitation for the US Second Circuit Court of Appeals. The question: does such removal confer subject matter jurisdiction on the federal district courts to decide issues having nothing to do with an arbitration agreement or award governed by the New York Convention. Per the Second Circuit, at least by implication, the answer is yes. (Bakoss v. Certain Underwriters at…
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Add the US Fifth Circuit Court of Appeals to the roster of federal jurisdictions that, like the Second Circuit, hold that when an arbitration agreement adopts rules that empower arbitrators to resolve disputes over the scope of arbitrable issues, the arbitrators’ decision on that matter receives the same very high level of deference as arbitrators’ decisions about the merits of the dispute. (Morgan Keegan & Co. v. Garrett, 2012 WL 5209985 (5th Cir. Oct. 23, 2012). Here the arbitration was brought by 18 investors in a mutual fund, each of whom had signed a client agreement providing for arbitration under…
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Poorly drafted international arbitration clauses often challenge US courts to find pro-arbitration solutions that meet the needs of the parties and are practicable within the bounds of the New York Convention and the FAA. That struggle was on display again recently in a case decided by the US Third Circuit Court of Appeals (Control Screening LLC v. Technological Application & Production Co., 2012 WL 3037824 (3d Cir. July 26, 2012).  Here a “pathological” arbitration clause identified a non-existent European arbitration institution, and the Court’s solution was to require arbitration in New Jersey, home turf of one of the parties, even…
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Some segments of the international arbitration community (particularly those spending their summer holidays in the Blogosphere), are abuzz with speculation that the US Second Circuit Court of Appeals may reconsider its jurisprudence concerning the arbitrability of arbitrability in a case called Thai-Lao Lignite (Thailand) Co. Ltd. v. Gov’t of the Lao People’s Democratic Republic, 2012 WL 2866275 (2d Cir. July 13, 2012) (summary order affirming district court order granting confirmation petition and denying motion to vacate award). A petition for rehearing en banc has been filed by the appellant Government of Laos, challenging the Court’s position that the parties’ agreement…
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In various posts on this site over the three-plus years of its existence, Arbitration Commentaries has reported on court decisions that recognized the power of an arbitrator to decide “arbitrability” questions when the arbitration agreement calls for arbitration under rules that confer power on the arbitral tribunal to decide upon objections to its jurisdiction. Last week the US Fifth Circuit Court of Appeals joined forces with at least the First, Second, Eighth, Eleventh and Federal Circuits, in holding that when parties agree to arbitrate under such rules, there is “clear and unmistakable evidence” that they have agreed to arbitrate arbitrability….
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