Implied Waiver Of the Right to Arbitrate
In February 2011, the United States Supreme Court granted certiorari in Stok & Associates, P.A., v. Citibank, N.A, (No. 10-514). The question presented was whether, under the Federal Arbitration Act (“FAA”), a party should be “required to demonstrate prejudice after the opposing party waived its contractual right to arbitrate by participating in litigation, in order for such waiver to be binding and irrevocable” – an issue on which the United States Courts of Appeals are divided. However, the parties settled their dispute before any merits briefs had been filed and the Court accordingly dismissed the case on June 2, 2011.
Stok and Associates (“Stok”) is a small Florida law fi [...]
The U.S. Supreme Court and Class Arbitration: A Tragedy of Errors
This post addresses the U.S. Supreme Court’s misadventures with class arbitration over the past decade. Those misadventures have resulted in striking confusion and waste of resources by litigants, courts and arbitral institutions. More broadly, the Court’s conflicting and often ill-considered decisions on the subject now threaten to undermine U.S. arbitration law more generally – turning a field where U.S. courts once pioneered international developments, in decisions like Mitsubishi and Scherk, into one where the U.S. Supreme Court’s decisions stand out as examples of how not to deal with the arbitral process.
U.S.-style class actions are by now familiar, if only by reputation, in [...]
Trans-Pacific Partnership Negotiations: Waiting for U.S. Proposals
The seventh round of TPP negotiations will take place in Vietnam the week of June 20 but caution on the part of U.S. negotiators makes it highly unlikely that after fifteen months of ongoing negotiations any of the major issues will be resolved or even fully opened to discussion. In particular, the United States Trade Representative (USTR) is likely to avoid presenting definitive U.S. views on labor, environment, state owned enterprises (SOEs) and intellectual property. (Limited proposals on both environmental issues and IP have been offered by the United States in the past, but apparently lacked detail, and do not address the data exclusivity, extended patent term and patent linkage issue [...]
New York Court Grants Pre-Award Attachment in Aid of a Foreign-Seated International Arbitration
The recent decision of the New York Supreme Court, Appellate Division (an intermediate state appellate court) in Sojitz Corp. v. Prithvi Information Solutions Ltd., 2011 N.Y. Slip Op. 1741; 2011 N.Y. App. Div. LEXIS 1709, bolsters New York’s reputation as a jurisdiction friendly to international arbitration. In this case, which involved two non-U.S. parties in an arbitration seated in Singapore, the appellate court held that a petitioner can attach a respondent’s assets located within New York in anticipation of an arbitral award, even where the New York courts have no personal jurisdiction over the respondent. The appellate court upheld the attachment of a debt owed by a New York-domi [...]
Fault Lines in International Commercial Arbitration
On March 23, in Washington, DC, the Institute for Transnational Arbitration and the American Society of International Law will co-host a conference on “Fault Lines in International Commercial Arbitration.”
Building on the American Law Institute’s draft Restatement of the U.S. Law on International Commercial Arbitration, Gary Born, Jan Paulsson, J. William Rowley, QC, Linda Silberman, and Judge Diane P. Wood will discuss controversial themes that have emerged in the course of the drafting process. These include: (1) How National Is International Arbitration?; and (2) The Limits of Party Autonomy.
Although the themes for the conference may have an abstract tone, they encompass a host [...]
US Supreme Court Denies Cert for Lloyds v Lagstein
On Monday, December 13, 2010, the United States Supreme Court denied cert for Certain Underwriters at Lloyd’s, London v. Lagstein, and in so doing denied the opportunity to further clarify the debate surrounding manifest disregard. The central issue is whether this doctrine survived after Hall Street Associates LLC v. Mattell, Inc. In Lloyds v. Lagstein, a medical doctor filed a claim under his insurance policy, but after 2 years he still had not received a payment. The doctor initially filed in district court, but the district court stayed the case to allow for arbitration according to the disability policy. The arbitral tribunal awarded the doctor full policy benefits as well as punitive [...]
