Recent Posts

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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What is the status of a purported final arbitral decision on the merits, when the arbitrator declares her decision to be “final” but also states that she reserves the right to change her mind based upon new evidence? The US Seventh Circuit Court of Appeals in a new decision held that the arbitrator’s decision in such circumstances was a final award, or at least that it became final once the 90-day period provided in section 12 of the FAA, for asking a federal court to modify an award, expired without there having been a request to the arbitrator to modify…
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The US Seventh Circuit Court of Appeals has held in a new decision that the question whether a contract containing an arbitration clause ever existed should be decided by a federal district court when it is asked to compel arbitration, and not by the arbitrator in the first instance, unless the arbitration clause indicates that the parties delegated that specific issue of contract formation to the arbitrator. (Janiga v. Questar Capital Corp., 2010 U.S. App. LEXIS 15983 (7th Cir. Aug. 2, 2010)). The Court observed that any doubt on this question appears to have been resolved recently by the Supreme…
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Call it the “Comma Clause” of the New York Convention.   Article II(1) of the Convention requires each Contracting State to recognize an “agreement in writing” for arbitration. And Article II(2) — the Comma Clause, for this discussion — states: “The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.”   The interpretive significance of the comma in Article II (2) has divided US Circuit Courts of Appeals. The Second Circuit held in the Kahn Lucas case (186 F.3d 210 (2d…
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Security for costs is scarcely the most popular partner on the arbitration dance floor. Derains and Schwartz note in their treatise on the ICC Rules, for example, that ICC arbitrators have ordered parties to provide security for costs, although such cases are “exceptional.” They observe that the ICC Rules do not expressly provide for security for costs, but add that “parties may apply to the Arbitral Tribunal for the same under Article 23” — a phrasing that stops short of placing the writers in the camp of those who consider that a security for costs order is indeed an interim measure…
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