Recent Posts

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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If you practice arbitration law internationally from a base of operation outside the United States, you might consider that the arbitrability of cross-border disputes involving insurance is rather non-controversial. After all, arbitration lawyers wish to have large and growing practices, and insurance disputes help enormously. Simple. You would think. But here in the United States, with our great legal tradition of making simple matters difficult, this subject is fertile ground for controversy, large legal fees, and lengthy opinions from appellate courts. To understand this quagmire, readers might study ESAB Group, Inc. v. Zurich Insurance PLC, 2012 WL 2697020 (4th Cir….
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Should we rejoice or commiserate over the decision during the past week, by a panel of the US Eleventh Circuit Court of Appeals, holding that a party to a domestic arbitration in Ecuador could obtain US discovery for the Ecuador case pursuant to Section 1782 of the US Judicial Code? (Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2012 WL 2369166 (11th Cir. Jun. 25, 2012)).  Surely litigation lawyers in Florida will be pleased, as the news will spread rapidly in Central and South America, and whereas US sources of evidence for Latin arbitrations are somewhat more likely…
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It is occasionally the pleasant duty of Arbitration Commentaries to inform its readers that American trial judges do understand the New York Convention and Chapter 2 of the Federal Arbitration Act (“Convention Act”), and that they often apply the Convention and the Convention Act sensibly to advance international arbitration and the predictability and stability of American law that supports it. This post is such an occasion. Within the past two weeks: (1) A federal district judge in New York properly rejected the attempt of a party to an ongoing international maritime arbitration to get judicial relief from the arbitral tribunal’s…
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