Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

May 19, 2009

Arbitral Power to Award Fees As Sanctions

When the arbitration agreement states that each party shall bear its own legal fees, do the arbitrators have authority to award legal fees as a sanction for bad faith conduct in the arbitration? In a recent case in New York, two federal judges said yes, and two said no. But the two votes in favor formed the majority on a three-judge panel of the Second Circuit Court of Appeals, and so that prominent Court has now held, apparently for the first time, that arbitrators do not exceed their powers by awarding fees as a sanction for bad faith conduct in…
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May 14, 2009

Attachment in Aid of Convention Award Enforcement

A U.S. District Court judge in San Francisco recently granted an order of attachment, in aid of enforcement of the award of the ICC tribunal seated in Stockholm. Recognition and enforcement in the U.S. court were therefore governed by the New York Convention and Chapter Two of the Federal Arbitration Act. The Court’s opinion is a useful guide to many of the essential elements of recognition and enforcement of a Convention award in the U.S. federal courts. The case is Sony Ericsson Mobile Communications AB v. Delta Electronics (Thailand) Public Company Limited, 2009 U.S. Dist. LEXIS 36497 (N.D. Cal. April…
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May 13, 2009

Arbitration Clause Held Null and Void Due to Conduct Waiver

Federal district courts have ample power to dissolve a stay of proceedings pending arbitration, and order the parties to proceed with the litigation, where the party that initially invoked arbitration thereafter acts systematically to prevent the arbitration from taking place. A recent federal district court decision makes these powers clear. In Apple & Eve, LLC v. Yantai North Andre Juice Co., 2009 U.S. Dist. LEXIS 32548 (E.D.N.Y. April 27, 2009), the defendant was a commercial entity domiciled in the People’s Republic of China. After plaintiff commenced suit in a New York State Court, defendant removed the action to federal court…
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May 12, 2009


Dear Readers I apologize that there have been no new postings between April 2 and today’s date. In the interim, I prepared for the trial of an international commercial case governed by the UN Sale of Goods Convention (CISG), which was pending in the U.S. District Court for the District of New Jersey. With active encouragement from the Court and assistance with mediation by the assigned U.S. Magistrate Judge, the matter was resolved before opening statements. The client having returned to Italy yesterday, I am at liberty to return to blog-posting for a few days. Warm regards. Marc

May 12, 2009

Supreme Court Decision on FAA Appeals

The Supreme Court of the United States has held that any litigant –-whether or not a signatory of the agreement to arbitrate — who suffers denial of an application to stay the litigation pending arbitration, is entitled to an interlocutory appeal of that order. Section 16(a)(1) (A) of the Federal Arbitration Act, the Court held, clearly provides for such an interlocutory appeal, without reference to the contractual status of the appellant, so long as the District Court order did in fact deny a stay. The Court further held that such a litigant may not have an application for a stay…
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April 02, 2009

Supreme Court Limits Federal Jurisdiction Over Petitions to Compel Arbitration

The Federal Arbitration Act (“FAA”) guarantees the enforceability of private agreements to arbitrate, but guarantees a federal forum to compel arbitration only some of the time. State courts are bound to give effect to the FAA in enforcing agreements to arbitrate, and limitations on federal subject matter jurisdiction often will require that they do so. Section 4 of the FAA provides for a civil action whose sole purpose is to obtain an order to compel a recalcitrant party to arbitrate. No court action concerning the underlying dispute need be pending; the Section 4 petition is an independent proceeding. It permits…
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