Recent Posts

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…
Read More »

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….
Read More »

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….
Read More »

Last month in a decision below the Mason-Dixon Line and perhaps below the radar detection devices of the international arbitration bar, a federal district court in Mississippi enforced in part a contractual agreement for ICC arbitration between a major U.S. defense contractor and the Government of Venezuela, but declined to enforce the agreement insofar as it named Caracas, Venezuela as the seat of the arbitration. Instead the Court directed the parties to reach agreement on another seat within 15 days failing which the Court would name a seat. (Northrop Grumman Ship Systems, Inc. v. Ministry of Defense of the Republic…
Read More »

Today I will attempt to bring some clarity to American federal law concerning enforcement of international arbitration clauses by non-signatories.  I will discuss two recent cases, one in Texas and the other in New York, in each of which a non-signatory sought to compel a signatory to arbitrate claims on which the signatory had commenced litigation.  In the Texas case, a US company (“Licensee”) had an arbitration agreement with a Dutch company (“Licensor”), contained in a technology license agreement. After Licensee rejected a takeover bid from Licensor, the US subsidiary of the Dutch company (“Licensor Sub”), according to Licensee, conspired…
Read More »

Before we part ways in flight to family hearths, groomed pistes, and pristine sandy beaches nearer to the Equator, let us return briefly to one of the favorite topics of Arbitration Commentaries and its readers:  arbitrability with non-signatories, and specifically the choice-of-law governing arbitrability in regard to non-signatories.   A war story begins today’s installment. My Hong Kong client contracted to sell software to a New York company and in the contract provided for Hong Kong governing law and the resolution of disputes by arbitration. The contract named no arbitral institution, nor any rules, place of arbitration, or method to…
Read More »