In cases involving contracts between U.S. companies, courts frequently allow a nonsignatory to a contract to enforce an arbitration provision in the contract against a signatory, when the signatory to the contract relies on the terms of that agreement in asserting its claims against the nonsignatory. On June 1, 2020, the United States Supreme Court
Update on Badgerow Petition for Certiorari: Supreme Court to Review Standard for Determining Federal Court Jurisdiction Over Motions to Confirm or Vacate Arbitration Awards
The Supreme Court has granted certiorari on an issue involving domestic arbitration that has divided the federal courts of appeal (Badgerow v. Walters, Docket No. 20-1143):
Do federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act (FAA) where the only
The D.C. District Court Allows State Sponsored Tribunal to Seek Discovery in Federal Court under 28 USC § 1782(a)
As the U.S. Supreme Court currently considers the issue of whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), the lower courts continue to receive applications for discovery assistance in international arbitration matters. Section 1782(a) authorizes U.S. district courts to provide assistance to foreign or
Petition Seeks Supreme Court Review of Standard for Determining Federal Court Jurisdiction Over Motions to Confirm or Vacate Arbitration Awards
An employee of a Louisiana financial service company who lost in an employment-related arbitration is asking the U.S. Supreme Court to resolve an arbitration-related issue that has divided the circuit courts: Do federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act (FAA)
Insolvency and Arbitration Proceedings – Are They So Happy Together?
Insolvency proceedings can create potential roadblocks for arbitration proceedings that require careful navigation. Arbitration proceedings are private contractual proceedings intended to resolve individual claims. In contrast, insolvency proceedings are public proceedings intended to resolve claims collectively. Yet, an arbitration within an insolvency proceeding can be useful for resolving individual claims that may help resolve the
Revised ICDR 2021 Rules Are Now In Effect
Like some other international arbitration institutions, the International Centre for Dispute Resolution (“ICDR”) recently adopted amendments to its International Dispute Resolution Procedures (the “2021 ICDR Rules”). The ICDR’s amendment became effective on March 1, 2021. The amendments, according to the ICDR, aim to “promote greater efficiency and economy by addressing the early disposition of issues, emphasizing the use of mediation, and expanding the applicability of the expedited procedures. Importantly, the rules also place an increased emphasis on arbitrators’ ethical obligations.” The 2021 ICDR Rules also address challenges and concerns related to the COVID-19 pandemic, including the use of video, audio, and other electronic means of communication.
Notable and significant revisions include:
Authority of International Administrative Council (“IARC”)
Article 5 of the 2021 ICDR Rules expressly authorizes IARC to (1) determine challenges to the appointment or continuing service of an arbitrator; (2) decide disputes regarding the number of arbitrators to be appointed; (3) determine whether a party has met the administrative requirements to initiate or file an arbitration; (4) in case of parties disagreement, determine the initial place of arbitration.
Joinder
The joinder rules have been expanded in Article 8(1) as now the joinder is permitted after the constitution of the tribunal if the tribunal determines that the joinder is appropriate and the additional party consents to be joined.
As we have previously reported, International Court of Arbitration (“ICC”) also recently expanded its joinder rules.
Continue Reading Revised ICDR 2021 Rules Are Now In Effect
U.S. Supreme Court Agrees to Review Whether Federal Courts Can Order Discovery in Aid of Private International Arbitrations under 28 U.S.C. 1782(a)
In our recent post, we discussed the split in the federal appeals courts over whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), which authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district.
Israel Becomes Third Signatory To 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters
On March 3, 2021, Israel signed the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“2019 Convention”). Israel became the third State to sign the Convention, joining Uruguay and Ukraine.
The Hague Conference on Private International Law adopted the Convention to provide a uniform process to HCCH member states for enforcing civil judgments in other countries throughout the world. The convention provides that contracting states will recognize and enforce certain civil or commercial judgments rendered by courts of other contracting states, obviating the need for a review of the underlying judgment on its merits.
The principal tenet of the convention is Article 4, which provides that “a judgment given by a court of a contracting state (state of origin) shall be recognized and enforced in another contracting state (requested state) in accordance with [chapter 2 of the convention].”
Although three States have now signed the 2019 Convention, the Convention has yet to be ratified, which is an important milestone for the Convention to come into full force and effect.
Continue Reading Israel Becomes Third Signatory To 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters
Florida Federal Court to Examine Issues of Alleged Arbitrator Conflicts of Interests in Panama Canal Case
The parties in a $238-million dispute over the construction of the third set of locks for the Panama Canal is raising issues concerning alleged conflicts of interest on the part of the International Chamber of Commerce (“ICC”) arbitrators in the United States District Court for the Southern District of Florida.[1] The case may resolve
Uncertainty Continues Over Whether Federal Courts Can Order Discovery in Aid of International Arbitrations
As we have discussed in previous posts, federal appeals courts in the United States are split over whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), which authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district. In a very recent case, the United States District Court for the District of Columbia recognized this split, and directed the parties to provide additional briefing before deciding this hotly disputed issue.
In In re Application of: Food Delivery Holding 12 S.A.R.L., 1:21-mc-00005, 2021 WL 860262 (Mar. 8, 2021), Food Delivery Holding 12 S.a.r.l. (“FDH”) filed an application under 28 U.S.C. §1782 for an order to issue a subpoena for the taking of deposition and production of documents for use in a matter before the Dubai International Finance Centre-London Court of International Arbitration (“DIFC-LCIA”).
The Court began its analysis by noting that deciding whether to grant discovery under Section 1782 involves a two-step inquiry:
First, the court must determine whether it can order the requested relief—that is, whether it has the authority to do so; second, it must decide whether it should order the requested relief—that is, whether exercising its discretion to do so would further the statute’s “twin aims of ‘providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance in our courts.’”