Recent Posts

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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Not so long ago, there was controversy among federal courts in the United States about whether the New York Convention ousted the courts of jurisdiction to provide injunctive relief in aid of international arbitration. Just as that issue was sorted out in favor of judicial power to grant provisional relief, controversy arose over whether institutional rules conferring power on arbitrators to grant provisional relief, when adopted by parties, left courts without power to grant such parties provisional relief, or at least when viewed in light of the Federal Arbitration Act strongly suggested that courts should wield discretion against granting provisional…
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A new decision of the US Second Circuit Court of Appeals holds when a vacancy on an arbitral tribunal occurs due to resignation of an arbitrator, and the parties’ agreement does not address that situation, a district court has broad discretion under Section 5 of the Federal Arbitration Act in deciding how the arbitration shall proceed. (Insurance Co. of North America (“INA”) v. Public Service Mut. Ins. Co., No. 09-3640-cv, 2d Cir., slip opinion, June 23, 2010. The decision may be found on the Court’s website: www.ca2.uscourts.gov).   The decision affirms a ruling if the District Court that was reported upon…
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    Godfather buffs will remember Johnny Fontane’s contract with the famous bandleader. Don Corleone’s most feared enforcer, Luca Brasi, held a gun to the bandleader’s head, and the Don assured him that either his brains or his signature would shortly be on the contract. The bandleader signed, and Johnny Fontane’s singing career was re-launched. Now we know the rest of the story. The written contract was nothing but an arbitration clause covering all disputes arising from the relationship. The clause also provided that disputes concerning the making or validity of the agreement would be decided by the arbitrator.  Fontane…
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New York’s arbitration statute, Article 75 of the New York Civil Practice Law and Rules (“CPLR”), addresses in section 7502(c) the circumstances in which a New York court may give a provisional measure in aid of arbitration. Section 7502(c) is a particularly significant provision of state law in the world of international arbitration, given New York’s role as host to many international commercial arbitrations. The Federal Arbitration Act includes no sections concerning provisional relief, so when interim measures are sought in a New York court under CPLR 7502(c) there is no issue of federal law pre-emption.  Several years ago CPLR…
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  Investment treaty arbitration awards rarely find their way into the US courts for review, as the ICSID Rules under which many such arbitrations occur include their own appellate process (see, in particular, Rules 50 and 52-54 of the ICSID Arbitration Rules concerning annulment proceedings). The grounds for annulment under the ICSID Rules overlap substantially with the grounds to set aside an award under Chapter 1 of the Federal Arbitration Act, and so a set aside motion following denied of an annulment application would most likely be rejected based on collateral estoppel principles.   So on the rare occasion when an…
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