Recent Posts

  This is the initial draft of what will eventually be a longer and hopefully more thoughtful article concerning the difficulties, under existing American law and practice, of arbitral subpoenas in U.S.-seated international arbitrations. Your comments on this draft, on this site or to the author privately, are most welcome.     Parties to international commercial contracts often select New York as the place of their arbitration, and they do so for a variety of reasons, some of them related to the hospitable legal and professional environment for arbitration, including New York’s concentration of skilled arbitrators who are well-versed in…
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  International arbitrators sitting in New York will from time to time need to apply or at least consider New York choice-of-law rules. It is therefore noteworthy when those rules evolve in a particular direction. New York “conflicts” rules (as New York lawyers call them) have for many years been a hybrid of “traditional” rules — based on such talismans as the place of a transaction or the nationality of a party in interest — and the more modern view that “interest analysis” should control. The shift in favor of interest analysis gained momentum recently in a decision of the…
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Enactment of a uniform code of ethics governing the conduct of counsel in international arbitrations is a much-discussed topic. Whether cross-cultural standard-setters such as the International Bar Association can, or should, achieve such a complex and difficult mission remains to be seen. A dimension of the problem that should not be overlooked is that counsel in international arbitrations often will leap at the opportunity to accuse an adversary of an ethical violation. This is rather commonplace in the rough-and-tumble context of American civil litigation, and the problem in international commercial arbitrations exists substantially but not entirely because of the participation…
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Article (V)(1)(e) of the New York Convention provides that a Court asked to confirm a Convention award may refuse to do so on the ground that the award has been or may be set aside by a competent court of the country in which, or under the law of which, the award was made. While it is sometimes said that the Convention does not concern itself with vacatur of awards but only with grounds for a court to refuse to confirm an award, Article (V)(1)(e) is widely understood to have the effect of incorporating domestic law vacatur standards at the…
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As the debate rages on concerning the potential use of 28 USC 1782 to secure non-party discovery for use in international commercial arbitrations, rather little attention is paid to the fact that judicial assistance under section 1782 is a matter of discretion not of right, and that federal judges may not wish to interfere with the arbitral tribunal’s control over the proceedings. Such reluctance to interfere figured prominently last week in the decision of a federal district judge in Washington to deny section 1782 relief, sought by the American claimant in an ICSID bilateral investment treaty (“BIT”) arbitration against the…
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The recent decision of a US court in New York confirming, under the New York Convention, an ICDR Panel award in favor of Hoffmann La Roche (HLR), and its US subsidiary and customer, comes a good news for at least two important reasons. One concerns arbitration rights of non-signatories; the other, the recovery of legal costs by prevailing parties of foreign and US citizenship in an international arbitration with a seat in New York and New York law applicable to the merits. F. Hoffmann La Roche Ltd. v. Qiagen Gaithersburg, 2010 U.S. Dist. LEXIS 81374 (SDNY Aug. 11, 2010) The…
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