Awards are final—mostly. Many institutional rules allow arbitrators to correct clerical errors in their awards, but prohibit revisions to the merits of their decisions. The U.S. Court of Appeals for the Fifth Circuit signaled in a recent case that it will defer to arbitrators in interpreting institutional rules regarding the scope of their correction authority,…

On June 1, 2020, the United States Supreme Court issued its opinion in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA. The Court held that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) does not prohibit a Contracting State from applying the domestic law doctrine…

The investor-state dispute settlement (ISDS) arrangements provided in Chapter 14 of the United States-Mexico-Canada Agreement (USMCA) are a radical shift from those that have been in force for the past 25 years under Chapter 11 of the North American Free Trade Agreement (NAFTA). As explored in Wednesday’s post, Canada has effectively opted-out of ISDS under…

The Investment Chapter of the United States-Mexico-Canada Agreement “USMCA,” Chapter 14 has had a controversial trajectory.  Chapter 14 reflects a remarkable evolution in United States (“U.S.”) policy on the protection of its investors and their investments in Canada and Mexico.  It is remarkable because – from 2023 – it will limit the scope of protected…

On July 1, 2020, the United States – Mexico – Canada Agreement (USMCA) will enter into force. Although the media widely refers to the treaty by its American name, USMCA, it also carries two other names: Canada has adopted it as the Canada – United States – Mexico Agreement (CUSMA), while Mexico has settled on…

The COVID-19 pandemic and the ensuing lockdowns have the legal community debating and exploring force majeure. That, however, does not rule out the imminent likelihood of international arbitration locking horns with domestic insolvency law. Arbitration agreements and subsequent awards may possibly be left redundant and award-holders remediless where insolvency proceedings are commenced in respect of…

In January 2020, following the Executive Order of President Trump, the United States imposed additional sanctions targeting predominately Iran’s metals sector including copper, iron and steel manufactures (the “Order”). These sanctions were designed to expand secondary sanctions to cover new industry sectors such as mining, textiles and construction. The secondary sanctions aim to deter and…

A California district court held in February that 28 U.S.C. Section 1782 could be used to seek discovery for use in a private, commercial arbitration, becoming the first district court in the Ninth Circuit to do so, and, following recent decisions in the Sixth and Fourth Circuits, potentially teeing up an even more pronounced split…

In 2019, the United States (‘U.S.’) made six non-disputing Party submissions in investment treaty arbitrations, three of which took place under the NAFTA (Lion Mexico Consol. L.P. v. Mexico; Vento Motorcycles, Inc. v. Mexico; and Tennant Energy, LLC v. Canada), and one each of which took place under U.S. agreements with Korea, Peru and Panama (Jin Hae…

Amid the celebrations that accompanied the conclusion on 14 July 2015 of the Joint Comprehensive Plan of Action (JCPOA) between the E3/EU+3 (China, France, Germany, Russia, the UK and the U.S., with the EU Commission) and Iran, few observers paid attention to the Dispute Resolution Mechanism (DRM) embedded in two paragraphs, ¶¶ 36 and 37,…

2019 was an important year for international arbitration developments in the United States, both in the commercial and investment context.  Some of the more far-reaching developments included the deepening circuit court split on whether “manifest disregard” of the law is a grounds to refuse enforcement of an award, the first U.S. Court of Appeals decision…

Recently, the U.S. District Court for the Northern District of Georgia (the “District Court”) put the problem with emergency arbitration front and center: it refused to confirm and enforce an emergency interim arbitration award (the “Emergency Award”) awarded by an emergency arbitrator (the “Emergency Arbitrator”) under Article 6 of the American Arbitration Association’s International Center…

The progression of arbitration law in the American legal system has been steadfast. Despite a few uneasy rulings, the U.S. Supreme Court (“SCOTUS” or “the Court”) has provided resolute support for arbitration and proclaimed the legitimacy of its enhanced adjudicatory role. The few rulings that strayed from the contemporary judicial evaluation of arbitration eventually were…

Introduction In domestic award enforcement proceedings, the U.S. federal Court of Appeals for the Second Circuit (“Second Circuit”) in New York recently reversed a lower federal trial court’s decision to vacate that award on grounds that the arbitrator manifestly disregarded the law.  See Weiss v. Sallie Mae, Inc., Dkt. No. 18-2362, Slip Op. (2d Cir….

Introduction The United States announced the reinstatement of sanctions on Iran in May 2018. Following that, the EU responded by revising their Blocking Regulation (Regulation 2271/96) in August 2018. The Blocking Regulation was designed to safeguard European entities from the extraterritorial reach of the U.S. sanctions. The uncertainty surrounding the scope of application and the nature of blocking…

The recent decision issued by the United States Court of Appeals for the District of Columbia in Pao Tatneft v. Ukraine reopened the door to whether a country waives sovereign immunity under the Foreign Sovereign Immunities Act (the “FSIA”) by signing the New York Convention or other international treaties. In Pao Tatneft v. Ukraine, Tatneft,…

Writing in 2015 about the need to study the intersection between insurance and dispute resolution, Professor Robert H. Jerry II concluded as follows: “The business of insurance is first and foremost the business of providing financial security against the risk of loss, but when loss occurs, the business of insurance becomes the business of resolving…

Introduction Abdul Latif Jameel Transportation Co. Ltd. v. FedEx Corp., decided by the U.S. Court of Appeals for the Sixth Circuit earlier this month, is arguably the first post-Intel decision from the U.S. Court of Appeals that “permits discovery for use” in a “private commercial arbitration” under 28 U.S.C. § 1782(a). (Case No. 19-5315, at…

Arbitration is often used to avoid the messy processes of national litigation, sometimes involving years of appeals and hearings. But when you want to attach property to support your arbitral award, that itself can result in years-long litigation, as in the case of Stemcor USA, Inc. v. Cia Siderurgica Do Para. The delays in the…

Introduction The enforcement bar is becoming more specialized. This development follows the trend in U.S. litigation towards increasing specialization and the growth of niche practice industries; but it also stems from specific changes to the enforcement regime that are addressed in this article and that have important implications for the life-cycle of an international arbitration….

Mr. André, welcome to the Kluwer Arbitration Blog. We were pleased to have Mr. Hanft join us recently and are thrilled to have the opportunity to also share your perspective with our readers.  To start, can you briefly introduce yourself and explain your role at CPR? Thank you very much for the invitation Kiran.  At…

Mr. Hanft, welcome to the Kluwer Arbitration Blog!  I appreciate the opportunity to share your perspective with our readers at an exciting moment, where conversations about politics, diversity, and technology are intersecting and transforming the way globalized corporations and their lawyers conceive of and approach dispute resolution.   Before we delve in, can you briefly introduce…

United States Code Section 1782 has become the weapon of choice for international litigants seeking discovery in aid of foreign proceedings. Section 1782 allows an “interested person” (such as a foreign litigant) to apply for discovery over a person or entity “found” in the U.S. “for use” in a proceeding “in a foreign or international tribunal.”…