Notes from Berlin: U.S. Hospitality in International Arbitration
by Andrew Flake
I had the opportunity to join colleagues last week at the excellent Berlin Dispute Resolution Days, an annual week of dispute-resolution programming put on by the German Ministry of Justice and the German Arbitration Institute (DIS).
I was...
No Sovereign Immunity in Nigerian Trade Zone Dispute; D.C. Circuit Affirms New York Convention Applies to Broad Range of Investor-State Arbitral Awards
by Andrew Flake
When does a foreign government, under its commerce-related treaties, move from acting as a sovereign to acting as a business partner in a deal, thereby submitting to arbitration of claims by private parties involved in the deal?
Another Lock Sealed: Second Circuit Applies ZF Automotive to Foreclose Section 1782 Discovery in ICSID Arbitration
by Andrew Flake
In an earlier post on the ZF Automotive decision, I projected that there was some "play in the joints" for arguing over whether certain tribunals would be considered "foreign or international, but that "for now, we know private commercial arbitration — and even...
Sixth Circuit Revisits “Closely Related” Doctrine in Forum Selection Disputes
by Andrew Flake
For commercial parties entering into a contract, the opportunity to select where a dispute will be heard is an advantage. Thus it is, in a contract entered into before a dispute arises, we have forum-selection clauses in favor of a particular location and court,...
Abogados and Avocados: Section 1782 Nets Early Access to Corporate Records in Mexican Litigation
by Andrew Flake
Reminding us of why 28 U.S.C. Section 1782 matters in cross-border litigation, the Eleventh Circuit in a just-published decision affirmed the validity of subpoenas directed at a U.S. company for records, not of the U.S. company, but of...
Under New York Convention, Separate Service of Summons not Required to Confirm Award
by Andrew Flake
Certain cases can be useful because of their technical guidance; they address nuts-and-bolts issues. In the international arbitration realm, one of those issues is the process of taking an arbitration award and getting it confirmed, or converted...
The Availability of an “Exceeding Powers” Challenge to the International Arbitration Award: 11th Circuit to Revisit Longstanding Precedent
by Andrew Flake
One of the questions that continues to come up in international arbitrations, where they touch U.S. courts, is how Sections 1 and 2 of the Federal Arbitration Act work together. Generally, Section 1 applies to domestic arbitrations -- ones between...
58 years is a good run: In ZF-Automotive, the Supreme Court Curtails Discovery Options for International Arbitration
by Andrew Flake
Visiting for a close friend's wedding, I had a chance this weekend to walk around the beautiful mountain community of Black Mountain, North Carolina. There's a little pond there, "Lake Susan," fed by mountain springs, that a local told me...
Second Circuit: No Inherent Limit on Using Section 1782 Discovery Elsewhere
by Andrew Flake
We try to take advantage of great opportunities when they come along; if work takes us to Rome, and we have extra time, we might head to the Colosseum, take a stroll in...
Leapfrog Petition Granted: Key International Arbitration Question Back on for Supreme Court Decision
by Andrew Flake
Mere days after our last TAOR blog published, wistfully reviewing the dismissal of the Servotronics case, the Supreme Court has decided to take the question up again, this time in a new case involving a subsidiary...