Recent Posts

Dear Readers: As many of you know, I announce new posts on Arbitration Commentaries in a number of Linked In Discussion Groups relating to international litigation and arbitration. Recently many of those announcements may have escaped your attention because the emails you receive from the Linked In groups of which you are a member have a “subject” headline bearing the name of another person who has also  started a discussion or made a job or news posting .  Please know that you may “subscribe” to Arbitration Commentaries by clicking on the “RSS Feeds” link at the top of the Home…
Read More »

“Evident partiality or corruption in the arbitrators” is one of the statutory grounds for vacatur of an arbitration award made in the United States, as provided on Section 10(a)(2) of the Federal Arbitration Act. I take brief note here of a decision this week in the Ninth Circuit US Court of Appeals that usefully reiterates aspects of the meaning of those terms. (Lagstein v. Certain Underwriters at Lloyd’s, 2010 U.S. App. LEXIS 11836 (9th Cir. June 10, 2010)).   In this case, the Lloyd’s underwriters, after receiving a large award against them from a tribunal composed of retired Nevada state…
Read More »

The US Second Circuit Court of Appeals last week added an instructive new chapter to the ongoing tug-of-war, in Congress and the courts, over the use of arbitration clauses by consumer products companies avoid liability to consumers. (Hines v. Overstock.com, Inc., 2010 U.S. App. LEXIS 11265 (2d Cir. June 3, 2010)).   Overstock.com is a well-known internet discount home furnishings merchant.  Plaintiffs alleged that Overstock had sold them a vacuum cleaner, as new, which was in fact “refurbished,” and that when they returned the item they were charged a $30 restocking fee even though Overstock had given assurances they could…
Read More »

A revised and updated version of the International Bar Association Rules for the Taking of Evidence in International Arbitration (“Revised Rules”) is moving rapidly toward formal adoption by the IBA. The draft was published for comment several weeks ago and the comment period ended June 1.   This is the first of perhaps several commentaries on particular aspects of the Revised Rules.    An important new feature of the Revised Rules concerns the contents of the written reports of party-appointed experts. Under the Revised Rules, the Expert Report must contain “a statement of his or her independence from the Parties,…
Read More »

It is essential to the integrity of the arbitral process that arbitrators make complete disclosure, at every stage of the proceedings, of relationships that might reasonably call into question their impartiality or independence in the eyes of the parties. A related principle, less discussed and less articulated in rules and law, is that a party that becomes aware, during the proceedings, of a possibly compromising relationship that an arbitrator has not disclosed, should determine promptly whether the relationship is one that should prevent the arbitrator from continuing to serve, and should raise the issue promptly or be foreclosed from doing…
Read More »

Recently the US Third Circuit Court of Appeals, sitting en banc on its own motion, held that when a motion to compel arbitration is opposed to the extent that the arbitration clause bars class actions, the District Court must resolve the challenge to the class action prohibition, and not refer that issue to the arbitrator. (Puleo v. Chase Bank USA, 2010 U.S. App. LEXIS 9497 (3d Cir. May 10, 2010)).   The Third Circuit en banc majority opinion starts from the premise that a “question of arbitrability” is presented whenever one party challenges in whole or in part the validity…
Read More »