Marc J. Goldstein Arbitrator & Mediator NYC

Recent Posts

August 26, 2009

Draft UNCITRAL Rules Revisions: Interim Measures

The proposed new text of Article 26 concerning interim measures of protection is a considerable expansion from the 1976 rule. It reflects the extensive practical experience of arbitrators with different types of interim measures. It also reflects the convergence of legal standards into a set a generally applicable transnational norms. The 1976 version of the rule was concise, perhaps to a fault. It permitted the arbitral tribunal to “take any interim measures it deems necessary in respect of the subject matter of the dispute. ” The only specific example mentioned, although not by way of limitation, was “measures for the…
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August 20, 2009

Draft UNCITRAL Rules Revisions: Arbitral Power to Rule on Jurisdiction

The Working Group on Arbitration of the United Nations Commission on International Trade Law (UNCITRAL) will convene for its 51st session in Vienna, Austria, from September 14-18, 2009. For the past two years, the Working Group has been engaged in developing a proposed revised draft of the UNCITRAL Arbitration Rules (“Rules”). When completed, this will be the first wholesale revision of the Rules since their initial adoption in 1976. I will attend the Working Group session as a member of the observer delegation of the Association of the Bar of the City of New York. In this post and ensuing…
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August 14, 2009

International Litigation: Pleading Under the Alien Tort Statute

A new commentary on this subject is posted under Legal Developments at my general website. Click-through on the link under “Links and Resources” at the left margin, for Marc J. Goldstein Litigation and Arbitration Chambers (

August 14, 2009

Challenging the Replacement of a Party-Appointed Arbitrator

The Seventh Circuit U. S. Court of Appeals has addressed one of the difficult issues arising from the mid-stream replacement of a party-appointed arbitrator. The Court held that the Federal Arbitration Act (“FAA”) generally requires that a party who contests its opponent’s appointment of a replacement party-arbitrator, on the ground that the substitution is not within the agreement if the parties, must do so by an application to the Court at the time of the substitution, or else the objection will be forfeited. WellPoint, Inc. v. John Hancock Life Ins. Co., 2009 U.S. App. LEXIS 17841 (7th Cir. Aug. 7,…
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August 10, 2009

U.S. Judicial Discovery Assistance for Private Foreign Arbitrations: The Fifth Circuit Says “No”

The Fifth Circuit U. S. Court of Appeals last week reaffirmed its position that 28 U. S. C. 1782, which provides for federal assistance in obtaining discovery for use in foreign and international tribunals, does not apply to private commercial arbitration tribunals. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 2009 U. S. App. LEXIS 17596 (5th Cir. Aug. 6, 2009). The Fifth Circuit had adopted that position ten years ago in Republic of Kazakhstan v. Biedermann Int’l, 168 F. 3d 880 (5th Cir. 1999). In that case, the court examined the legislative history of the 1964…
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July 31, 2009

Newly-Discovered Evidence in Post-Award Proceedings

Dear Readers: A recent commentary by Dr. Georg von Segesser of Schnellenburg Wittmer, Zurich, posted on the Kluwer Arbitration Blog ( discusses a recent Swiss Federal Supreme Court case in which the Court denied a motion to vacate an award based on new evidence presented to the Court on an issue of fact determined by the Arbitral Tribunal. I posted on the Kluwer Blog a comment concerning how the same issue might be addressed by an American federal court. That comment is republished here. Georg, I believe a U. S. Court would have reached the same result given this procedural…
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