Recent Posts

A commentary on the US Second Circuit Court of Appeals’s recent denial of panel rehearing in the Kiobel case appears on my general website, www.lexmarc.us.  This three-judge Second Circuit panel held in 2010 that the US Alien Tort Statute does not provide for causes of action against corporations, on the grounds that corporate liability for international human rights violations has not achieved the status of a generally-accepted principle of customary international law.

n  Breaking no new ground, but adding rich fertilizer to the garden of  US compétence-compétence jurisprudence, a recent decision by the Chief Judge of the U.S. District Court in Manhattan, nominally applying New York contract law but with the substantial influence of federal arbitral “common law,” held that the arbitrator, not a court, should decide whether particular disputes are within the scope of an admittedly valid arbitration clause, when (1) the language of the clause is very broad, encompassing “any and all disputes” or “any controversy” or similar language, and (2) the parties have agreed to arbitrate under rules that…
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In a variation on the theme of Hall Street Associates v. Mattel, Inc., the US Ninth Circuit Court of Appeals held in a recent case that the Federal Arbitration Act forbids an agreement of the parties to bypass initial judicial review of the award by a federal district court in favor of first instance review in the Court of Appeals.  (Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011). The parties in Johnson made their agreement to arbitrate in the later stages of a prolonged federal lawsuit alleging unfair credit practices by…
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Rarely may an arbitrator serve in consecutive arbitrations involving the same issues under the same contracts, as one party or another will object that the arbitrator who has once decided an issue cannot re-decide the same issue impartially in a second case. But sometimes, notably but not exclusively in U.S. domestic arbitration, it is agreed that the party-appointed arbitrators in a three-member tribunal will not be impartial. That may change materially the analysis of whether the arbitrator may serve in consecutive related arbitrations upon appointment by the same party. A new decision of the U.S. Seventh Circuit Court of Appeals…
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In another blow to the misconceptions of  foreign arbitration lawyers about U.S. arbitration jurisprudence, a U.S. federal judge in Washington, in a searching scholarly opinion, has systematically dismantled, and summarily rejected, all arguments advanced for applying “manifest disregard of the law” to refuse confirmation of an arbitration award under the New York Convention. That doctrine, the Court held, if it survives and in whatever conception it survives, is no more than a ground permitting vacatur of an award that a U.S. Court may lawfully vacate, i.e. one that is made in or under the arbitral law of the United States….
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Article V(1)(e) of the New York Convention has withstood another attempted assault in the U.S. court system.   A federal district judge in Washington, D.C. last week rejected the proposition that a court of the country whose substantive contract law but not its arbitral procedural law applied to the arbitration could, by the consent or stipulation of the parties, become a “competent authority” whose purported vacatur of an award may furnish a basis for a judicial refusal to grant recognition and enforcement of an award under Article V(1)(e).  (International Trading and Industrial Investment Co. v. DynCorp Aerospace Technology, 2011 U.S. Dist….
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