ICDR 2021: The Role of the Tribunal Secretary
A new Article in the updated ICDR Rules introduces what for many common law lawyers and domestic arbitrators is a curious character: the tribunal secretary. A tribunal secretary, much more common in the realm of international arbitration, is a junior associate who assists the tribunal in limited, non-decisionmaking roles.
Supreme Court Grants Cert in Servotronics Dispute; Likely to Resolve Circuit Split On Key International Arbitration Question
by Andrew Flake
On March 22, the Supreme Court granted cert in the ongoing Servotronics litigation, presenting the likely opportunity for the justices to decide an ongoing and important important question for parties to international commercial arbitrations: whether or not...
ICDR 2021: Third-Party Funding Disclosure in Commercial Arbitration
by Andrew Flake
As the market for alternative litigation financing or third-party funding (TPF) of commercial disputes has matured, more parties to commercial disputes are regularly seeking discovery of underlying funding documents. Depending upon the theory...
Sweeping for Mines: The Injunctive Relief Carve-out in Arbitration
by Andrew Flake
The "injunctive relief" carve-out, which lies quietly in various forms in many arbitration agreements, is a too-often overlooked landmine. Its most frequent purpose, allowing parties to go to court for emergency relief while preserving their right to...
“Absolutely Incensed”: A Foreign Law Twist on Equitable Estoppel in Arbitration
by Andrew Flake
A Ninth Circuit battle between two Indian incense makers over whether their case should be arbitrated has still not burned out. After one correction and remand from the U.S. Supreme Court, the Ninth Circuit considered...
When Does Documents-Only Arbitration Make Sense?
An underutilized dispute resolution process in U.S. commercial disputes is an arbitration conducted only on the exhibits, without a final oral hearing. Such a documents-only arbitral process, much more common internationally, resembles a summary judgment process more than it does a...
Repeat Player Bias in Arbitration: Snuffleupagus or Yeti?
The topic of arbitrator bias came up recently in two completely different settings -- one, a presentation by a law professor to a group of lawyers, and one, in a conversation with a non-lawyer friend, a scientist. In both...
Second Circuit Reaffirms Its View on Section 1782 and Private International Arbitration
Sharpening a split with sister circuits, the Second Circuit has now affirmed its position that private arbitral bodies are not "tribunals" under 28 U.S.C. § 1782. For the time being, then, if your dispute is in international arbitration administered by an entity...
Maintaining Confidentiality in Arbitration
We often hear that arbitration affords a level of confidentiality that courtroom proceedings do not. While that is true to an extent, it requires some qualification: It is the parties who must, by agreement or request to...
Sour Chilean Grapes and Specific Performance of Contracts In International Arbitration
[caption id="" align="alignnone" width="774"] A winery investment dispute gives the Eleventh Circuit a chance to validate District Court powers in confirming arbitral awards.[/caption]
In the second of two cases considering Latin American arbitration arising under the Panama Convention, the Eleventh Circuit reminds us that arbitrators have the same...