Recent Posts

Perhaps it is an indication that the rehabilitation of air conditioning systems in certain US Courthouses has proceeded apace, an unheralded early accomplishment of the current US Administration’s vaunted infrastructure program, that this summer has so far produced an impressive output of federal appellate decisions concerning international arbitration. Whereas a beach-and-boat reading guide is something of a mid-summer tradition at Arbitration Commentaries, here, dutifully, are reviews and recommendations: Non-Enforcement of Annulled Awards — Decisions last month in the US Courts of Appeals for the Second and District of Columbia Circuits further entrenched the US position that enforcement under the New…
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Canada celebrated Canada Day two weeks early in Washington DC, completing its NAFTA Chapter 11 arbitration takedown of T. Boone Pickens’ Mesa Power with a New York Convention award confirmation in the US District Court of a NAFTA Arbitral Tribunal’s rejection of Mesa’s unfair treatment claims against the Government of Ontario in regard to Ontario’s procurement of wind-powered electricity from Mesa’s Canadian renewable energy venture.  (Mesa Power Group, LLC v. Government of Canada, 2017 WL 2592414 (D.D.C. June 15, 2017)). Your Commentator, having failed despite mighty efforts to determine if Mr. Pickens called his friend the incumbent President to affirm…
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Linked below is my article “A Glance Into History for the Emergency Arbitrator”, published last month in the Fordham International Law Journal. The article was written in conjunction with my presentation on the same topic at the Fordham Conference in New York in October 2016. http://ir.lawnet.fordham.edu/ilj/vol40/iss3/3

It has been fashionable in some international arbitration circles of late to bemoan the shortcomings of a staple of the arbitral diet: the written testimonial statement of a fact witness, submitted in advance of the merits hearing and intended to stand as the testimony-in-chief (direct). For arbitrators who thrive on a constant regimen of procedural nourishment, this pot-stirring resonates like an anti-croissants diatribe at a conference of the French bakery association: too flaky, too buttery, too … prévisible! (Francophobes, use your Google Translator!). Avid readers of the burgeoning literature on this subject, and even workaday arbitrators and advocates, will be…
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Surely you sometimes wonder why Elena Kagan is a Justice of the Supreme Court and a former Dean of the Harvard Law School, while you, on the other hand, plod along in your quotidian existence as a world-renowned, universally-esteemed, brilliant and magnificently accomplished international arbitrator.  Well, you should read Justice Kagan’s masterful opinion for the nearly-unanimous* Supreme Court in Kindred Nursing Centers v. Clark, 137 S.Ct. 1421, 2017 WL 2039160 (May 15, 2017). If you could write such compelling prose, you might have had a different destiny. (Note: It helps to breathe the air of Manhattan’s Upper West Side, as…
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You are not finished learning from the ICSID annulment committee’s non-annulment of the Suez/Vivendi v. Argentina award, at least not if you actually read these posts (a covert activity that leaves cookies, and suggests you probably did not heavily annotate the latest issue of the ICSID Review). Some number of you will remember that Argentina turned up at the US Supreme Court a few years back, trying to sell the idea that the Supremes should tell British investors they had to spend 18 months cooling off in the Argentine courts day-by-day (with an allowance for Tango and Malbec at night)…
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