Recent Posts

Arbitration lawyers might justifiably have thought, before reading last week’s decision from the US Fifth Circuit Court of Appeals, that any uncertainty about the legal basis for a US court to issue an injunction in regard to a potentially arbitrable dispute had been favorably resolved many years ago. But in finding that a legal basis for such relief does exist even if the arbitrability of the dispute remains undecided and is sub judice at the time of the injunction order, the Fifth Circuit reminds us that the Federal Arbitration Act is a framework not a code, and that arbitration law…
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Dear Readers: On my general website you will find a short case comment on the Seventh Circuit’s recent decision, written by Judge Richard Posner, holding that corporations may be civilly liable for damages under the Alien Tort Statute.  The decision comes only a few days after the D.C. Circuit so held, in disagreement with the Second Circuit panel majority position in the Kiobel case last year.   Your attention to these comments is invited, under the Legal Developments column on my website, www.lexmarc.us. Best wishes. Marc Goldstein

With the decline and perhaps eventual demise of “manifest disregard of the law” after Hall Street Associates v. Mattel, Inc., more attention has been devoted by counsel and the courts to what it means for an arbitrator to “exceed [her] powers” (FAA Section 10 (a) (4)) such that vacatur is warranted of an award made at a place of arbitration in the United States. In the Stolt-Nielsen case, the Supreme Court held that an arbitrator exceeded powers in ordering class arbitration when the parties had made no agreement about class arbitration. That conclusion was reached for essentially two reasons. First,…
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The Supreme Court’s decision in AT&T Mobility v. Concepcion may be narrowly conceived as a decision about pre-emption of State law by the Federal Arbitration Act (“FAA”).  If that view prevails, class arbitration may have continuing vitality, particularly in regard to federal statutory claims.   There are reasons to conceive of Concepcion as a case more about limitations on State power in arbitration and less about the problematic features of class arbitration.   Indeed, the question presented for decision in Concepcion, as stated by Justice Scalia in the majority opinion, was “[w] hether the FAA prohibits States from conditioning the enforceability…
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Dear Readers: On July 8, 2011 the U.S. Court of Appeals for the District of Columbia Circuit held, in a divided 2-1 panel decision, that Exxon Mobil is not immune from claims of civil damages liability under the Alien Tort Statute  for torture and extrajudicial killing allegedly committed at its behest by the Indonesian military forces against civilian tribesmen in Indonesia.  The outcome on the issue of ATS liability of corporations is the opposite of that reached last year by a  divided panel in the U.S. Second Circuit Court of Appeals. An analysis of one of the key issues in…
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Dear Readers: The U.S. Second Circuit Court of Appeals today issued its second significant decision under the Foreign Sovereign Immunities Act of the current week. With apologies that I have not yet provided you with synopsis or analysis of the earlier ruling, I invite you to read the account of the decision today, posted to my general website. www.lexmarc.us Warm regards. Marc Goldstein