Recent Posts

By law, since 1917, the Supreme Court has opened its single annual term on the first Monday in October. This came about by an act of Congress, modifying the federal Judicial Code, on September 6, 1916 (see article at www.constitutioncenter.org). Sixty-five years later, in 1981, Paramount Pictures released a film feature entitled First Monday in October, starring Jill Clayburgh as the Court’s first woman Justice, a conservative, who enters into a romantic relationship with her liberal colleague and mentor played by Walter Matthau. Fast forward 36 years. On the first Monday in October 2017, at 10:00 a.m., the Supreme Court…
Read More »

I learned from reading the draft ICCA-Queen Mary Report on third-party funding in international arbitration a significant industry fact that perhaps is already well-known to many of you: that prominent third-party funders now engage prominent international arbitrators to work with (or perhaps indeed for) them to assist in the screening of cases for potential investment. I did not find in the draft report, however, any specific discussion of how this development in the market might affect the arbitration community’s views on the precise contours of disclosure of third party funding in international arbitration, now that a consensus appears to have…
Read More »

The past week was a challenging week for all of us, including those of us who consider ourselves to be mediators. What does the mediation profession have to offer toward resolution of national and international disputes that have not been submitted to mediation (so far as we know)? Some of the attributes that an effective mediator might bring to the table if such disputes were mediated, and in turn might bring to the discussion of these disputes even if they are not mediated, include: (1) an interest in identifying the fundamental interests of both sides, (2) an ability to understand…
Read More »

Perhaps one should have a valid excuse, in the company of intended readers of Arbitration Commentaries, to re-open the well-worn subject of compromise outcomes on damages in international arbitration – “triangulation,” in the parlance of some eloquent and perceptive commentators (e.g., M. Kantor, Avoiding Triangulations and Chimeras Alike, Global Arbitration Review (July 31, 2012))*; but here identified by its colloquial name: “baby-splitting.”  I claim to have such an excuse, having recently been permitted to participate as a speaker in a program about damages before a knowledgeable audience, and for that purpose having tried to compose some thoughts on the matter….
Read More »

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…
Read More »

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…
Read More »