Archives: Arbitration

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U.K. Arbitral Award Recognized, and Resulting U.K. Money Judgment Enforced, By U.S. Court Against Nigeria; FSIA Issues Ignored

Continental Transfert Technique Limited v. Federal Government of Nigeria, Civil Action No. 08-2026 (D.D.C. Aug. 2011), grants summary judgment in favor of a plaintiff to enforce both an arbitral award and a money judgment. As to both grounds there are interesting international practice rulings in the decision. The matter arose out of an arbitration award … Continue Reading

Even a Year’s Delay Does Not Waive Right To Compel Arbitration Provided No Substantial Invocation of Court Assistance

In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. LA. July 2011) (Rec. Doc. 2169), decides a motion to stay litigation between Anadarko and BP on the basis of the international agreement titled “Macondo Well Joint Operating Agreement” (JOA). The Court … Continue Reading

First Circuit Finds Fraudulent Inducement Claims Arbitrable by Virtue of the “Ambiguity” of “Arising Under” Language — Despite Granite Rock

Dialysis Access Center, LLC, et al. (DAC) v. RMS Lifeline, Inc. (RMS), No. 10-1872 (1st Cir. Mar. 2011), includes a step-by-step refresher of the current state of the law on when in international litigation an arbitration clause can force a party to present validity and enforceability issues to the arbitrator rather than to a court.  The … Continue Reading

Rejecting Claim of Unconscionability To Avoid Arbitration, District Court Reaffirms New York as a Center for International Commerce and Standardized Contracting

Where would an international practitioner or law firm or even a purely domestic corporate lawyer or go for a recent, succinct, lucid articulation of New York law on the subject of the circumstances under which a party can invoke the ground of unconscionability to avoid a dispute resolution provision in a contract calling for arbitration? … Continue Reading

Second Circuit Requires Arbitrator To Detemine Statute of Limitations Despite Specific Reference in Contracts Invoking New York Law and Procedure and Despite New York Law That the Issue Is For the Court, Not the Arbitrator; Conflict with New York’s Highest Court Apparent

Bechtel Do Brasil Constucoes LTDA., et al. v. UEG Araucaria LTDA, 10-0341-cv (2d Cir. Mar. 2011), decides whether, under federal arbitration law of the FAA as well as specific New York law principles, the court or arbitrator decides a statute of limitations defense. The decision holds that the arbitrator decides the issue given the language … Continue Reading

D.C. Circuit Finds 3-Month Period To Move To Vacate Arbitral Award Statutory and Thus Incapable of Being Extended Under Fed. R. Civ. P. 6.

Argentine Republic v. National Grid PLC, No. 10-7093 (D.C. Cir. Mar. 2011), is a per curiam decision of the D.C. Circuit addressing an important issue that affects international practice particularly:  can a federal court extend time deadlines imposed by statute when dealing with the exercise of a right under international convention or treaty, here the … Continue Reading

New York Federal Court Confirms that Issue of Joinder/Consolidation Is for Arbitrator, Not the Court, Notwithstanding Stolt-Nielsen

In Safra Nat’l Bank (SNB) v. Penfold Investment Trading, Ltd., 10 Civ. 8255 (S.D.N.Y. Apr. 2011),  the plaintiff sought an injunction to enjoin a AAA arbitration and sever Penfold’s separate claims into separate arbitration proceedings.  Each defendant was allegedly induced to purchase an investment security by the SNB broker.  The arbitration agreement apparently did not … Continue Reading

New York Federal Court Enforces Forum-Selection-Clause Requiring Enforcement of Arbitral Award in Bulgaria; Specifically Targeted Evidence of Corruption Required and Not Proferred

Zeevi Holdings Ltd. v. Republic of Bulgaria, No. 09 Civ. 8856 (S.D.N.Y. Apr. 2011), decides whether a party with a valid arbitral award may invoke the provisions of the New York Convention to enforce the award in the U.S. or rather must comply with the forum-selection clause of the underlying agreement, which the Court here … Continue Reading

Applying Federal Common Law, Court Finds Matter Should Be Arbitrated; Simultaneously Upholds Forum Selection Clause

Farrell v. Subway Int’l, 11 Civ. 08 (S.D.N.Y. Mar. 2011), is a decision on a motion to stay arbitration and simultaneous invalidation of a negotiated forum selection clause. Farrell is a citizen of Ireland and operates three Subway franchises in Dublin. Subway filed a demand for arbitration with the American Dispute Resolution Center and requested … Continue Reading

Second Circuit Affirms Enforcement of Arbitral Award; Reaffirms “Manifest Disregard” Legal Availability, But Inapplicability

STMicroelectronics, N.V. (ST) v. Credit Suisse Securities (USA) LLC (CS), Dkt. No. 10-3847-cv (2d Cir. June 2011), affirms in major part the District Court’s confirmation of an arbitral award against CS. The arbitration arose from alleged and apparently proven improprieties in trading auction rate securities. The award, issued unanimously, undid the trades; ST would return … Continue Reading

Fifth Circuit Grants and Then Withdraws Mandamus, But New York Convention Removal By Non-Defendant Still Improper

The Fifth Circuit’s decisions in In re Chrystal Power Co. Ltd, No. 11-40115 (5th Cir. 21 March 2011), on rehearing (16 May 2011), address whether mandamus lies for a District Court order erroneously permitting removal of a case to federal court under the New York Convention, as codified in 9 U.S.C. secs. 201, et seq. Crystal … Continue Reading

New York’s First Department Makes New Law In New York By Permitting Pre-Arbitration Award Attachment Despite No Subject Matter or Personal Jurisdiction

Sojitz Corp. v. Prithvi Info Solutions Ltd., 602511/09, 3841 (First Dep’t 3/10/11), is a decision from New York’s intermediate appellate court.  It addresses a matter of first impression in New York, which is one of importance to the development of the law and practice in international litigation:  Whether a creditor may lawfully and constitutionally attach assets … Continue Reading

The Principal-Agency Conundrum For Securing U.S. Jurisdiction (Part IV)

Bernardus Henricus Funnekotter, et al. v. Republic of Zimbabwe, 09 Civ. 8168 (S.D.N.Y. 2/10/11), sought to modify a judgment so that it would run against certain alleged instrumentalities of the government of the Republic of Zimbabwe. The District Court denied the request with leave to renew once service was properly effected.  The example is the … Continue Reading

U.S. Supreme Court’s AT&T Mobility Decision Holds that FAA Preempts State Law Prohibition on Arbitration Clause Preclusion of Class-wide Arbitrations

We recently reported on the Second Circuit’s decision in  In re: American Express Merchants’ Litigation, Dkt. No. 06-1871-cv (2d Cir. Mar. 2011), in which the Court of Appeals revisited the issue of whether contractual prohibition of arbitrating federal antitrust claims as class actions was valid under the Federal Arbitration Act (FAA).  The Court of Appeals held that the waiver was invalid. Enter … Continue Reading

Ninth Circuit Holds that Defense Based on Prior Arbitration Creates “Relates To” Jurisdiction To Support Removal of Litigation To Federal Court Under New York Convention

Infuturia Global Ltd. v. Sequus Pharmaceuticals, Inc., et al., No. 09-16378 (9th Cir. Feb. 7, 2011), addressed what the Court of Appeals described as the “novel question” whether, under the U.S.’s statutory embodiment of the New York Convention in 9 U.S.C., “removal” jurisdiction exists over a case where the defendant raises an affirmative defense related to … Continue Reading

On Remand from Supreme Court, Second Circuit Adheres To View that Waiver of Class Action Treatment in Antitrust Arbitration Is Invalid

Last year, in the antitrust litigation brought by merchants against American Express (Amex), the Second Circuit Court of Appeals decided that (1) the question of the enforceability of the class action waiver provision was properly decided by the court rather than the arbitrators, and (2) the class action waiver provision was unenforceable under the Federal … Continue Reading

Denial of Section 1782 Discovery Based on District Court’s Discretion Highlights Differences in Judicial Approaches

In re Application of Caratube, 10-0285 (D.D.C. 2010) [730 F.Supp. 2d 101] (In re Caratube op on Reconsideration) merits a short discussion in light of our posting on the Third Circuit’s  decision concerning Chevron’s § 1782 discovery efforts.  Caratube involved a § 1782 petition by the oil company directed at persons and entities in the U.S., … Continue Reading

Second Circuit Permits the Assertion of But Rejects on the Merits a New York Convention Challenge To Chevron’s Commencement of International Arbitration

The Second Circuit Court of Appeals decision in Republic of Ecuador, et al. v. Chevron Corp., Docket Nos. 10-1020-cv(L), 10-1026 (Con) (2d Cir. Mar. 2011), is not an appeal from the celebrated litigation now going on in the Southern District of New York and the Second Circuit involving Chevron and an Ecuadorian judgment of environmental liability … Continue Reading

New York’s Highest Court Keeps A Crack in the Door: Overturns Arbitration Award on Grounds Suspiciously Akin To “Manifest Disregard”

We have followed the door closing by the federal courts in essentially shutting out the means of challenging arbitral decisions on the basis of “manifest disregard” of the law (see the discussion of the questionable vitality of the “manifest disregard” standard in our e-book, International Practice: Topics and Trends).  (See also our blog discussions of … Continue Reading

D.C. Circuit Affirms District Court Authority To Sanction Non-U.S. Sovereign For Failure To Make Ordered Discovery – Enforcement Dispute Deferred

FG Hemisphere Associates, LLC v. Democratic Republic of Congo (DRC), et al., No. 10-7040 (D.C. Cir. March 2011), addresses whether a District Court has authority to sanction a non-U.S. Sovereign for willful failures to comply with discovery orders made in connection with enforcement proceedings. Although the Court of Appeals states that it is the first court … Continue Reading

Court Determines Arbitrability; Voids Arbitration Clause Containing Choice-of-Law Clause Antithetical to Federal Claim

We have before discussed  the confluence of factors leading to a court’s acceptance of jurisdiction to resolve the question of enforceability of an arbitration provision and simultaneously finding that the arbitration clause is unenforceable (see our posts of 8/9/10 and 8/11/10; see generally the discussion of choice of law/choice of forum and their impact on … Continue Reading

Non-U.S. Arbitral Award Recognized by U.S. Court – Argentina v. BG Group PLC

Republic of Argentina v. BG Group PLC, Civil Action No. 08-485 (D.D.C. Jan. 2011), involved an application to confirm an arbitral award in the amount of $185 million plus other costs against the Republic of Argentina. The proceeding was brought under the Federal Arbitration Act 9 U.S.C. § 207 (2000), and the New York Convention … Continue Reading

Second Circuit: It’s the Court, Not the Arbitrator, Who Determines Contract Formation Issue of Whether There Exists An Agreement To Arbitrate

In Dedon GmbH, et al. v. Janus et Cie, 10-4331-cv (2d Cir. Jan. 2011) (unpublished), the Second Circuit addressed the argument that it was the arbitral panel and not the court that was to address its own jurisdiction. The Court of Appeals issued a short but important reminder that, in the Second Circuit at least, … Continue Reading

District Court Rejects Res Judicata and International Comity, Refusing To Give Effect to Non-forum Judicial Decision Overturning Arbitral Award

International Trading and Industrial Investment Co. v. Dyncorp Aerospace Technology,  09-791 (D.D.C. Jan. 2011), provides a long and detailed decision touching on several important international practice principles. International Trading was a proceeding to confirm a non-U.S. arbitral award rendered in favor of International Trading and against DynCorp Aerospace Technology. The petitioner moved for confirmation under … Continue Reading