United States

ADR, Arbitration institution, Arbitration Institutions and Rules, International Institute for Conflict Prevention and Resolution (CPR), Interview, Interviews with Our Editors, United States

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

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…

New York, Section 1782 Discovery, Tribunal, U.S. Supreme Court, United States

(Quinn Emanuel Urquhart & Sullivan, LLP)/ /Leave a comment

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.”…

Arbitration, Arbitration Awards, Arbitration Proceedings, Enforcement, International arbitration, Investment Arbitration, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Public Policy, United States, USA

(Albright StoneBridge Group)/ /Leave a comment

The decision made in the case of Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum & Natural Gas (Civ. Action No. 16-140 (D.D.C. 7 June 2018)) (“Hardy case”) is yet another decision in a string of outcomes under the New York Convention proving that the repeated adagio “if it ain’t broken,…

2018 In Review, Enforcement, Enforcement of an arbitration clause, Federal Arbitration Act (FAA), New York, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, SCOTUS, technology industry, U.S. Supreme Court, United States, USA, USMCA

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

As we head into the new year, it is worth reflecting on major international arbitration-related developments in the United States during 2018 and their coverage on the blog.   Early in the year, our authors homed in on the U.S. Federal Arbitration Act (FAA), which embodies U.S. arbitration law, including the New York Convention.  As…

Arbitral seat, Arbitration, United States

(Musick, Peeler & Garrett LLP)/ /4 Comments

“Why don’t you go on west to California? There’s work there, and it never gets cold. Why, you can reach out anywhere and pick an orange.  Why, there’s always some kind of crop to work in. Why don’t you go there?” – John Steinbeck, The Grapes of Wrath Introduction For many years, the answer for international…

Appellate Body, Arbitration, European Union, Trade, United States, WTO

, (Linklaters)/ /Leave a comment
Linklaters

In light of the tariffs on steel imposed by the United States of America (“USA”), the Europe Union (“EU”) has threatened to impose tariffs of its own on American goods. Additionally, the EU has also filed a claim against USA at the World Trade Organisation (“WTO”). However, as discussed below, it may be that this…

Arbitration Agreement, Arbitration clause, Labour Law, United States

(Covington & Burling LLP)/ /Leave a comment
ArbitralWomen

On May 21st, 2018, the Supreme Court of the United States in Epic Systems Corp. v. Lewis (“Epic Systems”) held in a 5-4 majority that one-on-one mandatory arbitration agreements imposed by employers upon their employees must be enforced as written in accordance with the Federal Arbitration Act (“FAA”). The majority opinion, written by Justice Neil…

Arbitration, Summary Judgment, Summary procedure, United States

(Bryan Cave Leighton Paisner LLP)/ /1 Comment
Bryan Cave Leighton Paisner LLP

The recent American case of Weirton Medical Center Inc v Community Health Systems Inc (N.D. W. Va. Dec. 12, 2017) is another reminder that the debate over the place of summary disposal in arbitration has not been settled. This issue has previously been in the spotlight notably through the transatlantic case of Travis Coal Restructured…

Albania, Arbitration, Recognition and enforcement of arbitral award, United States

(Chaffetz Lindsey LLP)/ /Leave a comment

The recent decision by an intermediate New York appellate court in AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A.1)A.D.3d, No. 152679/14, 2018 WL 755355 (N.Y. App. Div. 1st Dep’t Feb. 8, 2018). has sharply curtailed “a procedural loophole in Chapter 2 of the Federal Arbitration Act”2)Commissions Imp. Exp. S.A. v. Republic of Congo, 916 F. Supp. 2d…

Arbitral Award, Awards, Consent awards, United States

(Ava J Borrasso P.A.)/ /1 Comment
ArbitralWomen

The importance of memorializing a settlement agreement into a consent award was recently highlighted in Transocean Offshore Gulf of Guinea Vii v. Erin Energy Corp., Case No. H-17-2623 (S.D. Tex. March 12, 2018). There, a Texas district court addressed whether a consent award is subject to confirmation in the United States pursuant to the New…

Domestic Courts, Domestic law, Federal Arbitration Act (FAA), United States

(Durham Law School)/ /Leave a comment

The central point of this note is that the U.S. law of arbitration is not clear from the text of the Federal Arbitration Act (FAA). The FAA is archaic and in need of updating. The FAA is the oldest – but still functioning – arbitration statute in the world. Case law has rewritten much of…

Brexit, ISDS, NAFTA, UK, United States

(Allen & Overy) and (Jenner & Block LLP)/ /Leave a comment

In the first part of this article, we discussed the need to broaden the debate about the UK’s future trading relationships, touched upon some potential advantages of the UK joining the NAFTA and traced the idea’s limited history. Is there political will? These days, the idea remains on the periphery, even out of sight. Each…

Brexit, ISDS, NAFTA, UK, United States

(Allen & Overy) and (Jenner & Block LLP)/ /Leave a comment

To many, it would seem foolish even to ask whether the UK might join the North American Free Trade Agreement. Yet, the UK should explore all possibilities open in a post-Brexit world. As we explain, the idea that the UK might join the NAFTA is not only conceptually interesting, but also merits entertaining with a…

Domestic Courts, Domestic law, Insurance, Maritime Arbitration, United States

, (BatesCareyLLP)/ /Leave a comment

The U.S. Court of Appeals for the Ninth Circuit has enforced an arbitration clause in a maritime insurance policy, finding the policy subject to the Federal Arbitration Act, and not “reverse preempted” by the McCarran-Ferguson Act.  In so holding, the court determined that the policy’s choice-of-law clause and arbitration provision controlled over somewhat different language…

Annulment, Enforcement of an award that was set aside, United States

(Suffolk University Law School)/ /2 Comments

Several recent circuit-level decisions have shown that U.S. courts are willing to review a foreign court’s annulment of an arbitration award to determine whether the annulment conflicts with U.S. public policy. This exercise inherently involves normative judgments and leads to the question of whether U.S. courts may be “out of their depth” in making such…

Appointment of arbitrators, Canada, Conference, Diversity, national court, North America, Transparency, Transparency in investment arbitrations, UK, United States

(Willoughby & Hoefer)/ /Leave a comment

On the heels of a year that has seen the rise of populist nationalism, skepticism of multilateral trade agreements and calls to tighten in some ways the flow of people across borders – perhaps most visibly in the United States and across Europe, but with manifestations elsewhere – many communities saw a retreat from international…

Anti-arbitration, Anti-ISDS Propaganda, Canada, China, Financial Industry, Investor-State arbitration, ISDS, Mexico, NAFTA, Negotiation, Pro arbitration, United States, USMCA

/ /1 Comment

Debates about the propriety of investor-state dispute settlement (ISDS) were revived by a recent letter by U.S. academics, which urged the abandonment of ISDS in the renegotiated North American Free Trade Agreement (NAFTA). This letter repeated arguments that are familiar from prior ISDS debates, such as that ISDS “grants foreign corporations and investors rights to skirt domestic…

Arbitration, Calvo Doctrine, ISDS, NAFTA, United States, USMCA

(Richard Levin Arbitration)/ /Leave a comment

After the US election, it was a certainty that in my inbox every morning there was at least one, if not more, email with a discussion on the future of arbitration in our changing society today. And this debate has continued in halls of university law schools to GAR events to law firm seminars. I…

Arbitration, Brexit, China, Hong Kong, United States

(Hong Kong International Arbitration Centre )/ /Leave a comment
HK45

Recent political developments have resulted in considerable geopolitical uncertainty and presented challenges to the international order. With the UK’s vote to exit the European Union, the election of Donald Trump as US president, the Western sanctions against Russia, and the rising North Korea nuclear tensions, 2017 ushers in a turbulent time where commercial parties’ usual…

Annulment, Anti-arbitration, Enforcement, Enforcement of an award that was set aside, United States

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The finality of an award is a key feature and attraction of arbitration as a method of dispute resolution. When an award is annulled at the seat, however, enforcing courts in secondary jurisdictions must decide between enforcing the award or honoring the seat-court’s nullification. This issue assumes significance in light of the recent judgment of…

Arbitration, Expropriation, Jurisdiction, Sovereign Immunities, United States

(King & Spalding)/ /Leave a comment
Young ICCA

Overview On May 1, 2017, the United States Supreme Court issued its unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co. (137 S.Ct. 1312). In its ruling, the Court addressed the expropriation exception to the Foreign Sovereign Immunities Act (the “FSIA”). The expropriation exception permits plaintiffs to bring claims in…

Arbitration, Arbitration Awards, Enforcement, Enforcement of an award that was set aside, UNCITRAL Arbitration Rules, United States

(Albright StoneBridge Group)/ /2 Comments

The US Court of Appeals for the 2nd Circuit’s Thai-Lao Lignite (Thailand) v. Government of the Lao People’s Democratic Republic The friction between a seat and an enforcement forum, i.e. between annulment and enforcement continues. An arbitral award in the Thai-Lao Lignite (Thailand) v. Government of the Lao People’s Democratic Republic case (“Thai Lao Lignite…

Fair and Equitable Treatment, NAFTA, Trans-Pacific Partnership, United States, USMCA

(Hanotiau & van den Berg)/ /1 Comment
Young ICCA

Despite apparent “America First” language in the US Summary of Objectives for the NAFTA renegotiation which appear contrary to the minimum standards of treatment and fair and equitable treatment, those protections are likely to remain in a new NAFTA. On 17 July 2017, the US Trade Representative published the “Summary of Objectives for the NAFTA…

ADR, ADR Clauses, Appeal, Discovery, Insurance, United States

, , (BatesCareyLLP)/ /Leave a comment

The U.S. District Court for the Southern District of New York has enforced a P&I Club’s internal claims appeal process as a legally binding alternative dispute resolution (“ADR”) method, rejecting allegations brought by one the Club’s Members that the procedure was “fundamentally unfair.” TransAtlantic Lines LLC v. Am. Steamship Owners Mut. Prot. & Indemn. Ass’n,…