Recent Posts

The arbitration rules of America’s Financial Institutions Regulatory Authority (FINRA) present a special, and sui generis, but economically significant, species of arbitrability controversies. FINRA, as successor to the National Association of Securities Dealers (NASD) is the self-regulatory organization of the securities industry. Established pursuant to the federal securities laws, FINRA rules provide that member firms agree to resolve certain disputes by arbitration under FINRA’s arbitration rules. Last week the US Second Circuit Court of Appeals ruled against the US arm of the Swiss investment banking giant UBS on a FINRA arbitrability issue, made complicated by the fact that the claims…
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In an American variation on the Dallah v. Pakistan fact pattern (an award enforcement proceeding against a foreign state that did not sign the arbitration agreement), the US Third Circuit Court of Appeals has affirmed a District Court order vacating a sister court’s earlier confirmation of a reinsurance arbitration award rendered against a non-signatory Brazilian state entity. (Aurum Asset Managers, LLC v. Bradesco Companhia de Seguros, 2011 WL 3562897, 3d Cir. Aug. 15, 2011)). But unlike in Dallah, the non-signatory question faced by the District Court in the confirmation proceedings in Aurum involved the court’s ability to exercise the subject-matter…
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The arbitration community should derive much satisfaction from reading a recent thorough and well-annotated application of the New York Convention and the Foreign Sovereign Immunities Act to confirm an arbitration award against a foreign state, authored by an experienced and well-respected U.S. District Court Judge in New York.  Thai-Lao (Thailand) Lignite Coal Ltd. v. Government of Lao People’s Democratic Republic, 2011 WL 3516154 (S.D.N.Y. August 3, 2011)).  I will find one portion of the decision against which to register a complaint: the possibility of applying the doctrine of forum non conveniens to deny consideration of a petition to confirm a…
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Institutional rules governing international commercial arbitration permit (and thereby to some extent encourage) arbitrators to render partial final awards when appropriate. And those rules, institutional guidelines, and published commentaries suggest or recommend (i) the structuring of complex arbitral proceedings by issue, and (ii) the early determination of some key issues whose resolution might advance the prospects of settlement on remaining contentious issues. Parties might assume that if an arbitral tribunal issues its final determination of a particular issue in the form of an award, in a fashion that complies with applicable arbitral rules about the form and content of awards,…
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The rights and obligations of non-signatories to the arbitration clause has been a frequent topic in Arbitration Commentaries since its inception. In American arbitration law, the subject is a difficult one for several reasons. First¸ important distinctions exist in the law, depending on whether the non-signatory seeks to compel arbitration with a signatory or is on the receiving end of a demand for arbitration from a signatory.  Those distinctions can become blurred, even without the assistance of advocates who have an interest in a particular result.  Second, the non-signatories issue is often entangled with the American version of the compétence-compétence…
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Dear Readers: Issues raised by the physical presence of Chinese companies in the U.S. are increasingly prominent in U.S. civil litigation. The jurisprudence is important to a number of consituencies, including international arbitrators who, when they sit in New York, may be asked to issue subpoenas under the Federal Arbitration Act to be served at purported US locations of Chinese companies. A particularly thorough opinion of a US Magistrate Judge in New York, concerning subpoenas served upon non-party Chinese banks in a trademark litigation, is discussed today in the Legal Developments section of my general website. www.lexmarc.us.  A note: If you do…
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