Recent Posts

Today’s post concerns waiver of the right to arbitrate by an ambivalent plaintiff in a US District Court, and under what conditions it might be appropriate for a US District Court, applying the New York Convention and FAA Section 206 (governing motions to compel arbitration under arbitration agreements covered by the Convention), to decide that such a waiver by virtue of the litigation conduct of the plaintiff renders an arbitration agreement “null and void” (or “inoperative”) under Article II (3) of the Convention*. Every sermon needs its text, and today our text is a recent case from Silicon Valley: Hebei…
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The New York Convention mandates that an “agreement in writing,” as defined in Article II (2), shall be recognized by Contracting States, and that the court of a Contracting State shall refer the parties to arbitration when there is an action before the Court as to which such an agreement has been made. (Article II, subsections (1) and (3)). But if a US District Court has subject matter jurisdiction based on FAA Chapter Two (implementing the Convention), is an “agreement in writing” as defined in Article II the only form of arbitration agreement the Court may enforce?  A decision at…
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Imagine with me, readers: A sovereign foreign State — India, for the sake of discussion — attracts the interest of a US enterprise to conduct a search for offshore hydrocarbon deposits and, if any are located, to determine their commercial viability. The State cedes aspects of its sovereignty contractually, in a number of ways. First, it gives the exploration outfit rights of occupancy for exploration purposes on a defined block of the State’s offshore waters. Second, it extends the period of the concessionaire’s right to be physically present on the block for an agreed period after hydrocarbon discovery in order…
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Significant foreign judgments concerning arbitration statutes based upon the UNCITRAL Model Law capture limited attention in the US, because the US is not at the federal level or under the laws of 44 of the 50 states a “Model Law jurisdiction.” But in some of the six states that have adopted international arbitration statutes based on the Model Law (California, Connecticut, Florida, Georgia, Illinois, Texas), the number of locally-seated international arbitrations is said to be on the rise (and there is at least anecdotal evidence that this is so; see, for example, last month’s post: “International Arbitration in the California…
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The decision of one party or group of parties to an international arbitration, more often than not the Respondent(s), to decline to advance their share of the deposits required for the fees and expenses of the arbitrators, has become so common that it may almost be said to be a standard feature of international arbitrations. And this is not necessarily or primarily a function of impecuniousness of the non-paying party. It is more often rather a business decision.  This is less often the case of course when the Respondents assert counterclaims against the Claimants, or cross-claims against one another, for…
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If you have no desire to participate in international arbitrations seated in California; if you systematically shun cases involving the life sciences industry; if you dodge arbitrations that raise persistent and difficult issues about U.S.-style pre-hearing discovery and state arbitration law; then this post is not for you.  Everyone else, please read on. To summarize: A New York State trial court judge last week enforced a deposition subpoena issued by a New York attorney based upon a California Superior Court commission to take the New York non-party witness deposition, where the California court had issued the commission upon an application…
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