Category Archives: Arbitration

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New York State Court Applies Rules To Sequence Simultaneous Litigation and Arbitration

Boz Export & Import, Inc. v. Karakus, Dkt. No. 8738/11 (N.Y. Sup. Ct. Kings Cty. 2011), expounds on several current and timely topics in international practice but from the perspective of a state court jurist (called a Justice in New York courts).  The decision was filed by a New York State judge sitting in a … Continue Reading

Federal Arbitration Act Preempts State Law; Action Stayed Pending Arbitration In Canada Under Canadian Law

Audio Visual Concepts, Inc. v. Smart Technologies, ULC, et al., Civil No. 11-1551 (JAG-CVR) (D. P. R. 2011), addresses the issue of the staging or sequencing the resolution of disputes pending in an international arbitration on the one hand and in courts of law on the other.   Paintiff sought a preliminary injunction to stop its … Continue Reading

Eleventh Circuit Reverses Prior View and Holds That Forum and Choice of Law Clauses Cannot Be Invalidated Pre-Arbitration Despite the Loss of the Right To Pursue a Federal Claim: New Interpretion of Challenge Mechanism in the New York Convention Offered

An important area within international dispute resolution is the extent to which courts will override parties’ choice of law and forum in the name of public policy.  See generally the discussion of choice of law/choice of forum and their impact on enforceability in our e-book, International Practice: Topics and Trends).  The Eleventh Circuit has now weighed … Continue Reading

Petitioner Seeking To Vacate International Arbitral Award Has Choices Concerning How To Serve Respondent

Mafidis v. Subway International, B.V., Case No. 3:10-CV-119 (PCD)(D. Conn. 2011),  involves an attempt by a Subway franchisee under an international franchise agreement to vacate an international arbitral award against Subway.  The Franchise Agreement contained a dispute resolution clause requirement arbitration and that proceedings would follow the United Nations Commission on International Trade Regulations and … Continue Reading

Panama Convention and New York Convention Interpreted Consistently; Action To Enforce Arbitral Award Stayed Pending Litigation in Honduras

DRC, Inc. v. Republic of Honduras, Civil Action No. 10-0003 (PLF) (D.D.C. Mar. 2011), involves efforts by DRC to confirm and enforce a $51 million arbitral award against the Republic of Honduras.  The arbitrations and litigations arose out of a construction contract.   DRC attempted to confirm its Award in a proceeding before the Honduran Supreme … Continue Reading

Non-U.S. Corporation, “Independent” But Wholly Owned By Non-U.S. Sovereign, Entitled to Avoid U.S. Jurisdiction To Enforce Non-U.S. Arbitral Award Under the New York Convention When Its Parent Could Not

GSS Group v. National Port Authority (NPA), Civil Action No. 09-1322 (PLF) (D.D.C. Mar. 2011), presents another example of how the corporate lawyer or draftsman might have avoided a conundrum that prevented a non-U.S. arbitral award from getting the significant benefits of the New York Convention’s provisions permitting enforcement in the U.S. of international arbitral … Continue Reading

Petition To Vacate Arbitral Award Untimely, But Same Defenses Can Be Raised In Opposition Confirmation

Ornela Cere v. Subway International B.V., Index No. 111998/2010 (N.Y. Sup.Ct.  Aug. 2011), is a brief and lucid discussion by a New York state court of first instance of an important issue in international litigation practice.  Cere and Subway had a dispute involving a Subway restaurant in Athens, Greece.  Their agreement called for New York City arbitration under … Continue Reading

Section 1782 Discovery Ordered Against Chevron’s Environmental Expert for Use in UNCITRAL Arbitration Relating to Ecuador

A decision from a Magistrate Judge in Colorado includes some useful learning on international practice under 28 U.S.C. Section 1782.  Republic of Ecuador, et al. v. Bjorkam (Chevron), Civil Action No. 11-cv-01470-WYD-MEH (D. Colo. Aug. 2011). The underlying international litigation is related to the Chevron litigation we have posted on many times.  This proceeding relates … Continue Reading

Non-U.S. Arbitral Award Confirmed Against Non-U.S. Sovereign Under FSIA Exception

Thai-Lao Lignite (Thailand) Co., et al v. Government of the Lao People’s Democratic Republic, 10 Civ. 5256 (S.D.N.Y Aug. 2011), presents a recent analysis of cross-motions to vacate and confirm arbitral awards, a mainstay in the international dispute resolution play book.  The decision provides learning on several timely topics that we address more fully in … Continue Reading

Courts Continue To Resist Confidentiality in Filing Arbitral Vacatur/Confirmation Proceedings; Other Rulings Lead To Confirmation of Award

Harper Ins. Ltd. v. Century Indemnity Co., 10 Civ. 7866 (S.D.N.Y. July 2011)(NRB), addersses cross-petitions to vacate and confirm an arbitral award.  The case addresses several typical issues arising in such proceedings but also others of note to topics we have posted about recently and that are important to international litigation and dispute resolution. The … Continue Reading

Post-Arbitral Award Proceeding To Pierce Corporate Veil Correct Procedure But Fails on the Merits

Ahcom, Ltd. v. Hendrik Smelding, et al., Case No. 07-1139 SC (N.D. Cal. Aug. 2011), presents two interesting issues for international litigation and dispute resolution.   Nuttery Farms, Inc., a U.S. corporation, defaulted in connection with a series of contracts for the sale of almonds to Ahcom, Ltd., a U.K. limited liability corporation in the business of … Continue Reading

As More “Confidential” International Arbitral Awards Made Public, the Pracitioner’s Need To Consider Alternatives Increases

We recently posted on the peril to the intended confidentiality accorded the arbitration of international disputes by the necessity of having to file in open court arbitral awards in order to enforce or challenge them.  The issue can be addressed in a number of ways, two of which we suggested being: Enlisting the judicial system … Continue Reading

Combination of Arbitration and Non-U.S. Choice of Law Provisions Contrary To Public Policy; Defendant Permitted To Stipulate to U.S. Law To Compel Arbitration

Alcalde v. Carnival Cruise Lines, Case No. 10-24457-Civ-Moore/Torres (S.D. Fla. July 2011), is another in the line of recent cases struggling with the interplay between the public policy favoring arbitration of international disputes and the freedom of contract permitting parties to select non-U.S. law to govern their dispute even where a U.S. statutory claim is … Continue Reading

Choice of Law Determines Arbitrability; “Clear and Unmistakable” Standard Adopted; “Arising Under” Deemed a Narrow Arbitration Clause.

The recent decision by the Ninth Circuit in Cape Flattery Limited (Cape) v. Titan Maritime, LLC, et al. (Titan), No. 09-15682 (9th Cir. July 2011), discusses several important issues in international litigation practice.  The suit involves claims by Cape against Titan for gross negligence in connection with the salvage operation done on Cape’s vessel, the M/V … Continue Reading

How To Keep Confidential Arbitral Awards Confidential Even When Seeking To Enforce/Vacate Them

One of the promises made by international dispute resolution is that when the forum of the dispute is an arbitration the proceedings are, and can remian, confidential (see generally the discussion of the confidential nature of arbitrations in our e-book, International Practice:  Topics and Trends).  What happens, however, if an arbitral award needs to be enforced, or if … Continue Reading

Arbitration Compelled for Industry-wide Antitrust Claim Made Against A Single Defendant Despite Active Participation in Multidistrict Litigation for Over A Year

Nokia Corp., et al. v. AU Optronics Corp. (AUO), et al., MDL No. 1827 (N.D. Cal. July 2011), orders arbitration on the basis of reasoning that is noteworthy for the litigation of international disputes.  Nokia’s complaint alleges a price-fixing conspiracy by suppliers of liquid crystal display (LCD) panels.  AUO asserted, as its fifty-second affirmative defense:  To the extent Nokia … Continue Reading

New York’s Intermediate Appellate Court, Vacating Earlier Ruling, Reaffirms that It Is the Court, Not the Arbitrator, Who Decides Threshold Issue of Arbitrability

We earlier blogged on the Appellate Divisions decision in Jalas v. Halperin.  The Appellate Division subsequently granted a motion to reargue that decision, vacated the earlier decision, and rendered a new one, Jalas v. Halperin, 2009-00362, 2009-111726 (2d Dep’t  June 2011).    In the revised decision, the Appellate Division reaffirms the important international litigation ruling from … Continue Reading

Second Circuit Affirms Direction To Arbitrate But Holds the Arbitration Panel Determines Scope of Contractual Forum Clause

UBS Financial Services, Inc., et al. v. West Virginia University Hospitals (WVUH), et al., Dkt. No. 11-235-cv (2d Cir. Sept. 2011),  involves three issues of relevance to the development of international dispute resolution and international litigation.  UBS acted as an underwriter and broker of auction rate securities and was a member of the Financial Industry Regulatory Authority … Continue Reading

Another Court Compelling Arbitration Based On AT&T Mobility; Extending the Supreme Court’s Analysis Yet Further?

Kaltwasser v. AT&T Mobility LLC, Case No. C 07-00411 (N.D. Cal. Sept. 2011), involves claims similar to those that the Supreme Court addressed in its significant decision of earlier this year, AT&T MobilityLLC (ATTM) v. Conception, 131 S.Ct. 1740 (2011), which we discussed in the context of our frequent discussion, crucial in the international litigation context, … Continue Reading

International Arbitral Tribunal (ICSID) Approves “Mass” — Class Action-Like — Claims Approach by Creditors Against Argentina

We have posted on the role of class or other collective actions in international litigation, both in the U.S. and elsewhere.   The issue is also pertinent to the question we have also discussed in various contexts:  whether class or collective actions are available in the arbitration context.  Comes now an arbitral panel in the International Centre for … Continue Reading

Florida District Court Adheres To Holding that No-Class-Action Provisions in Five Agreements’ Arbitration Provisions Are Unenforceable as Unconscionable Despite U.S. Supreme Court and Eleventh Circuit Precedent

In re Checking Account Overdraft Litigation, MDL No. 2036 (S. D. Fla. Sept. 2011), decides renewed motions to compel arbitration of nationwide class-action litigation consolidated for multidistrict litigation purposes in South Florida.  The Court denies again the motions to compel arbitration.  The international litigation issues in the case are similar to those in Cruz, et al. v. … Continue Reading

Eleventh Circuit Follows Supreme Court Decision in ATT Mobility To Preempt Florida Law Purporting To Limit Party’s Right To Preclude Assertion of Class Claims in Consumer Arbitration

Cruz, et al. v. Cingular Wireless, LLC, No. 08-16080 (11th Cir. Aug. 2011), is among the first Court of Appeals decisions since the U.S. Supreme Court’s decision in AT&T MobilityLLC (ATTM) v. Conception, 131 S.Ct. 1740 (2011), to address the issue whether a state law imposing limits on a contracting party’s ability to prevent class … Continue Reading

Clause Requiring Arbitration of “Any Controvesry” Broad Enough To Encompass Claims Pre-dating the Agreement or Having Nothing To Do the Agreement Containing the Arbitration Provision

Nanosolutions, LLC, et al. (Nano) v. Prajza, et al., Civil Action No. 10-1741 (EGS) (D.D.C. June 2011), grants a motion to stay litigation in favor of pending arbitration.  The rationale bears on international litigation disputes generally in the several respects. Nano is a biotech company that develops “technology involving tissue-like nano-encapsulation delivery sytems, providing instant … Continue Reading

Court Adheres To Earlier Ruling that Arbitration Clause Is Unenforceable Because It Interfered With Federal Right, Despite Supreme Court Ruling in Conception

H. Cristina Chen-Oster, et al. v. Goldman, Sachs & Co., et al., 10 Civ. 6950 (S.D.N.Y. July 2011) (Francis, M.J.), denies reconsideration of an earlier decision by that Court denying a motion to compel arbitration.  The earlier decision followed the Supreme Court’s decision in Stolt-Neilsen S.A. v. AminalFeeds International Corp., 130 S.Ct. 1758 (2010), finding … Continue Reading
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