Recent Posts

Last week a respected federal district judge in New York denied a motion for a preliminary injunction in aid of arbitration. The motion had been made by the Claimant in a pending ICC arbitration seated in New York, in which the tribunal is now fully-constituted although it may not have been at the time the motion was filed. More interesting for the arbitration bar than the outcome was an issue mentioned but not resolved in the Court’s decision: Does Chapter Two of the FAA confer subject matter jurisdiction on the Court when the only relief sought is a provisional remedy…
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If there were ever an arbitration case ripening on the US Supreme Court’s certiorari vine for full judicial review, surely it is In re American Express Merchants Litigation, 667 F.3d 206 (2d Cir. Feb. 1, 2012), suggestion for rehearing en banc denied, 2012 WL 1918412 (2d Cir. May 29, 2012). At issue is the validity of a class action waiver in the arbitration clause of Amex’s standard agreement with participating merchants. The basis for challenge to the validity of the waiver is that it is said to effectively prohibit the pursuit of federal statutory antitrust claims by the merchants against…
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Access to US courts to enforce foreign arbitration awards covered by the New York Convention against State-owned companies is increasingly fraught with uncertainty rooted in American procedural doctrine. This difficulty was on display in the Second Circuit’s forum non conveniens decision in December 2011, dismissing an award confirmation action against the Government of Peru. The issue arose again last week, when the federal court of appeals in Washington, D.C., affirmed the dismissal, for lack of personal jurisdiction, of an award confirmation case under the New York Convention against a company wholly-owned by the Government of Liberia. (GSS Group, Ltd. v….
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A decision of the Fifth Circuit US Court of Appeals last week rejected an arbitrator’s award construing an arbitration clause as permitting class arbitration. (Reed v.  Florida Metropolitan University, Inc., 2012 WL 1759298 (5th Cir. May 18, 2012). The Court held that the arbitrator exceeded his powers by finding class arbitration permissible under the clause. The decision expressly parts company with recent decisions of federal appellate panels in the Second and Third Circuit that sustained arbitrators’ clause construction awards in favor of class arbitration. Thus in the wake of the Supreme Court’s decisions in the Stolt-Nielsen, Concepcion, and Rent-a-Center cases,…
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We do not often hear about staying enforcement of an award that is subject to recognition and enforcement under the New York Convention – except of course in the scenario where a vacatur action is pending in a court at the seat of the arbitration. After all, the policy of the Convention and the FAA is to expedite recognition and enforcement by defining narrowly the grounds for opposition, and streamlining the proceedings in which those grounds are to be raised and considered. The Convention of course provides no general authority for courts to stay confirmation proceedings. Article VI of the…
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Today Arbitration Commentaries welcomes Nic Fletcher as its newest foreign correspondent. Nic will report for Arbitration Commentaries, from time to time, on UK law and practice developments. He is the Head of International Arbitration in the Litigation and Dispute Resolution team of Berwin Leighton Paisner, resident in the Firm’s London office. Nic is a member of the ICC Task Force on the New York Convention, is the rapporteur for England and Wales of the Institute for Transnational Arbitration, and is on the executive committee of the Foundation for International Arbitration Advocacy. Nic can be reached at nicholas.fletcher@blplaw.com, and biographical information…
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