Dispute Review Boards: Overview

Problems, disagreements and claims arise in most large and complex construction projects regardless of the project delivery method — design-build, design-bid-build, construction manager at risk, construction manager not at risk and integrated project delivery system. These disputes can and do delay and significantly increase the cost of the project. Dispute Review

International Arbitration and Cross-Border Insolvency – Common Scenarios Encountered by Practitioners

When:
Hosted By:
ABA International Law Section and Russian Arbitration Association
People:
Location:
Radisson Collection Hotel, Moscow

2/1 Kutuzovskiy Avenue Bld. 1, Moscow

The conference will be accessible in person and virtually.  You can register here.

The topic of whether an arbitrator or a court should decide the question of arbitrability has been the subject of long-standing debate among international scholars and practitioners.  In First Options of Chicago Inc. v. Kaplan, the Supreme Court stated the general rule that “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakabl[e]’ evidence that they did so.”  514 U.S. 938. But what constitutes clear and unmistakable evidence of the intent to arbitrate arbitrability?

The U.S. District Court for the District of Delaware recently provided an example of an arbitration clause that contains such “clear and unmistakable” evidence to delegate questions of arbitrability to an arbitrator. In Nidec Corporation v. Seagate Technology LLC, Civ. Action No. 21-52 (D. Del. July 20, 2021), Nidec Corporation (“Nidec”) brought a patent infringement action against Seagate Technology LLC (“Seagate”) and other defendants.  Seagate, relying on the arbitration clause in the parties’ agreement, moved to compel arbitration.  Seagate argued that the arbitration clause requires the Court to delegate to an arbitrator the decision whether the agreement applies to the claims at issue.  Seagate relied on the following language in the agreement:

If the parties are unable to resolve any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, whether the dispute, controversy or claim asserted is able to be arbitrated … then either party will have the option to request that the dispute be finally determined by arbitration in accordance with the JAMS International Arbitration Rules.

Nidec argued that it only agreed to arbitrate disputes that arise under the agreement and Seagate should not be allowed to compel arbitration by declaring that each dispute between the parties is a dispute arising out of or relating to the agreement.    
Continue Reading Delaware Federal Court Must Abide By The Parties Decision To Delegate The Arbitrability Of The Dispute To The Arbitrator Even If The Arbitration Agreement Is Irrelevant To The Dispute

Strategies to Collect International Arbitration Awards

One of the problems that parties to international arbitration face is that the opposing party may attempt to move its assets so that if an award it entered against it, the assets will no longer be available to satisfy the award.  Here, we discuss a recent case in which

Objectives and Considerations

The majority of international arbitrations are decided by three-member arbitration panels. Each party selects its “party-appointed” arbitrator, and the president or chair of the three-member panel is selected by the two party-appointed arbitrators, by a neutral authority or by other agreement of the parties.[1] This blog discusses some of the more

For the second time in four years, the U.S. Supreme Court has declined to resolve an arbitration-related issue that state and federal courts have been wrestling with over the last decade:  whether the Federal Arbitration Act (“FAA”) precludes courts from invoking public policy as a ground for refusing to enforce arbitration awards.  While public policy

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

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

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