Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

June 07, 2010

Second Circuit Denies Enforcement of Website Arbitration Clause

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., Inc., 2010 U.S. App. LEXIS 11265 (2d Cir. June 3, 2010)). 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…
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June 04, 2010

Independence of Party-Appointed Experts Under the Revised IBA Evidence Rules

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,…
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June 03, 2010

Duties of Counsel Regarding Arbitrator Conflicts of Interest

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…
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May 27, 2010

Unconscionability of Class Action Waivers: Who Decides?

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…
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May 21, 2010

Canada’s Supreme Court Applies Alberta’s General Two-Year Limitations Period for Civil Actions to Proceedings to Enforce Foreign Arbitral Award

Yesterday the Supreme Court of Canada held unanimously that Alberta’s two-year Statute of Limitations applicable to actions seeking “remedial orders” applies to an action for recognition and enforcement of certain foreign arbitral awards.  The consequence was to affirm judgments of the Alberta trial and appellate courts that had dismissed as time-barred the application of a Russian oil services company to enforce an award of nearly $1 million against an Alberta supplier made in Russia by an international arbitral tribunal.   Unlike the Federal Arbitration Act in the United States, Alberta’s International Commercial Arbitration Act incorporates both the New York Convention and…
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May 13, 2010

More Support for Limiting Arbitral Subpoena Power

A federal magistrate judge in Chicago last week quashed an arbitrator’s  subpoena for the pre-hearing deposition of a non-party witness, citing with approval decisions of the Second, Third, and Fourth U.S. Circuit Courts of Appeal  that interpret Section 7 of the Federal Arbitration Act to permit an arbitrator to subpoena witnesses only to appear before the arbitrator at a hearing and to bring with them to the hearing requested material documentary evidence. The magistrate judge also quoted with approval from a decision of the Seventh Circuit Court of Appeals: “The choice of arbitration is a choice to trade off certain…
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