Recent Posts

Today I briefly note two recent arbitrability decisions of US federal district courts, one in Los Angeles and one in Connecticut. In Los Angeles, the Court granted a motion to compel arbitration filed by an affiliate of Roche Pharmaceuticals, and stayed the action pending completion of an ongoing arbitration in Zurich, but did not dismiss the case entirely. The Court evidently found that plaintiff’s single cause of action for a declaratory judgment of patent invalidity was outside the scope of the agreement to arbitrate, but that whether the parties’ patent license agreement required patent validity to be determined by the…
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In a not infrequent scenario in international commercial arbitration, the Claimant seeks to be paid for services rendered or goods delivered or intellectual property licensed to the Respondent, and the Respondent offers a series of defenses and counterclaims that, according to Claimant, are merely contrivances designed to obscure the fact that Respondent is in financial distress and so it cannot or rather would prefer not to pay the obligation. If the Claimant then asks the Tribunal to grant an interim measure in the form of security to satisfy an eventual award of money damages, the first line of opposition will often…
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A US district judge in Manhattan held last week that a party’s right to appoint a replacement co-arbitrator upon resignation of its original appointee is inherent in an arbitration agreement that provides for party-appointed arbitrators, even when there is nothing specifically stated about replacement of an arbitrator who resigns. The Court so ruled in an ongoing reinsurance arbitration  (Northwestern Nat’l Ins. Co. v. Insco, Ltd., 2011 U.S. Dist. LEXIS 50789 (S.D.N.Y. May 12, 2011)). In an arbitration marked by charges of bias and conflict of interest against the presiding arbitrator and the respondent reinsurer’s party appointee, the latter eventually resigned…
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We are reminded by a painstaking recent opinion issued by a federal district judge in Manhattan that New York State arbitration law often will have a very limited role to play when the parties elect to conduct arbitration in New York under a contract that contains a general choice of law provision selecting New York law. This is certainly true for U.S. domestic arbitration, and should apply equally to international arbitration where the parties’ choice of New York as a seat of arbitration should reasonably imply that they have selected U.S. federal arbitration law, and not also the laws of…
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Written witness statements in lieu of oral testimony on direct examination have long been a staple of international arbitration hearing practice.  Civil trial practice in the United States, however, has long followed the custom of oral direct examination of witnesses on each party’s case-in-chief.  Practice in U.S. domestic arbitration has followed the custom in the trial courts. But adoption of written direct testimony as a civil trial convention may be the new wave in U.S. trial practice. Among the 16 judges of the U.S. District Court for the Southern District of New York who revised their individual rules of practice…
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On April 27, 2011, some 86 years after the passage of the US Federal Arbitration Act (“FAA”), five justices of the United States Supreme Court declared that arbitration “as envisioned by the FAA” does not include class arbitration because class arbitration cases (i) predictably involve high stakes which arbitrators are not suited to handle, (ii) predictably involve an unacceptable risk of unreviewable arbitral error because of the high stakes, (iii) invariably require procedural formality that is at odds with arbitration’s “principal advantage” of informality, and (iv) invariably require that formal rules be applied by arbitrators who, as a group, are…
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