International Litigation

The U.S. Supreme Court has decided an issue concerning cases that are subject to arbitration that has divided the federal courts of appeals:  when the claims at issue in a

Continue Reading U.S. Supreme Court Decides that Federal Courts Should Stay, Rather than Dismiss, Cases that Are Subject to Arbitration, If One Party Requests It

The appeals courts for the 3rd, 4th, 7th, 10th, 11th, and D.C. Circuits have ruled that a non-frivolous appeal of

Continue Reading Does An Appeal Of A District Court’s Denial Of A Motion To Compel Arbitration Automatically Stay The Case?

The United States Supreme Court this week resolved an important issue regarding international arbitrations by ruling that, contrary to what at least two appellate courts had previously ruled, a U.S.

Continue Reading The Supreme Court Slams the Door on the Use of Federal Courts to Obtain Discovery in Aid of Foreign and International Arbitrations Before Private, Non-Governmental Adjudicatory Bodies

The U.S. Supreme Court has ruled that, unlike petitions to compel arbitration, petitions to confirm or vacate an arbitration award cannot be brought in federal court simply because the underlying
Continue Reading U.S. Supreme Court Rules That Petitions to Confirm or Vacate Arbitration Awards Cannot Be Brought In Federal Court Simply Because the Underlying Dispute Involves a Federal Question

Sarah Biser and Craig Tractenberg will be presenting a webinar on hop topics on international litigation and arbitration on thursday, November 4, 2021 at 12 pm eastern..  You can register
Continue Reading Overview of International Litigation and Arbitration

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
Continue Reading Strategies to Collect International Arbitration Awards

Erika Levin, Oksana Wright and Michael Lieberman discuss, in a Law360 article, new Article 21 of the 2021 ICDR Rules, which specifically reinforces the tribunal’s authority to rule on
Continue Reading Fox Rothschild’s Attorneys Publish Law360 Article On Recent ICDR Updates

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
Continue Reading 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)