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Contents
- Preliminary Material
- Main Text
- Introduction: The New York Arbitration Landscape
- Preliminary Material
- A Overview of International Arbitration in New York
- B This Book
- 1 The Law Applicable to International Arbitration in New York
- Preliminary Material
- A Scope of this Chapter
- B The FAA and How it Works
- C The FAA and the New York State Arbitration Statute
- D Applicable Law Regarding Recognition of Arbitration Agreements Under the Conventions
- 1.44
- 1 Separability, the Conventions, and the FAA
- 2 Applicable Law Regarding Formation and Substantive Validity of the Agreement to Arbitrate
- 1.57
- 1.58
- 1.59
- 1.60
- (a) Case law from the Second Circuit applying law of forum
- (b) Consideration of state contract law principles when applying law of forum in the Second Circuit
- (c) Case law from the Second Circuit applying law of the underlying contract
- (d) Consideration of internationally recognized minimum standards
- 3 Applicable Law Regarding Formal Validity of the Agreement to Arbitrate
- 4 Applicable Law Regarding Arbitrability
- 5 Applicable Law Regarding Interpretation and Scope
- 6 Applicable Law Regarding Capacity and Competence
- E Applicable Law Regarding Recognition and Enforcement of Convention Awards
- 1.84
- 1.85
- 1 Application of the Conventions
- 2 Nondomestic Awards Rendered in the United States or Pursuant to U.S. Arbitration Law May Be Vacated Under U.S. Arbitration Law
- 3 Arbitral Awards Rendered Outside the United States or Pursuant to a Foreign Arbitration Law May Not Be Vacated Under U.S. Arbitration Law
- 4 Relevance of New York Arbitration Law to the Arbitral Award
- F Effective Governing Law Clauses
- 2 The Impact of U.S. Litigation
- Preliminary Material
- A Introduction
- B Overview of U.S. Litigation
- C Commencement of the Litigation
- D Procedural Calendar
- E Discovery: Establishing the Facts and Marshaling the Evidence
- F Pretrial Matters and Presentation of the Case
- G Decision and Judgment
- H Costs
- I Appeals: Challenging the Judgment
- J Conclusion
- 3 Drafting Considerations for Clauses Designating New York as the Place of Arbitration
- Preliminary Material
- 3.01
- 3.02
- 3.03
- A Preliminary Drafting Considerations not Particular to Arbitration in New York
- B Drafting Considerations Specific to Clauses Providing for Arbitration in New York
- 4 The Application of New York Law to Contracts
- Preliminary Material
- 4.01
- 4.02
- 4.03
- 4.04
- 4.05
- A Choice-of-Law Rules in New York
- B Contract Formation
- C What Constitutes a Breach
- D Consequences of Breach of Contract
- E Claims Ancillary to Breach of Contract
- F Special Issues Arising under New York Law of Contracts
- 5 The Selection of Arbitrators
- Preliminary Material
- 5.01
- 5.02
- A Tribunal Structure
- B Strategy in Selecting Members of a Tripartite Tribunal
- C Neutrality of Party-Appointed Arbitrators
- D Where to Find Arbitrator Candidates
- E The Selection Process
- F Arbitrator Compensation and Conflicts Waivers
- G Conflicts Checks and Arbitrator Disclosures
- H Challenges and Replacement of Arbitrators
- 6 Jurisdiction: Courts vs. Arbitrators
- Preliminary Material
- 6.01
- A Introduction
- B The “Arbitral Jurisdiction” Scenarios
- C Asserting Arbitral Jurisdiction in Judicial Proceedings Prior to Arbitration
- 6.11
- 6.12
- 6.13
- 1 Choice of Law Governing Interpretation and Enforcement of the Arbitration Agreement
- 2 Severability as a Guide to Validity Questions
- 3 Kompetenz-Kompetenz and the Arbitrators’ Jurisdiction
- 4 Forum-Specific Issues: When and on What Grounds May Courts Avoid Arbitration of Otherwise Arbitrable Disputes?
- 5 Appealability of Courts’ Arbitral Jurisdiction Determinations
- D Arbitral Jurisdiction before the Arbitrators
- 6.39
- 6.40
- 1 Procedural Aspects of Arbitrators’ Jurisdictional Determinations
- 2 Choice of Law Governing Arbitrators’ Jurisdictional Determinations
- 3 Kompetenz-Kompetenz and the Scope and Validity of the Arbitrators’ Jurisdiction
- 4 Preclusive Effect of Prior Judicial Determinations on Forum-Specific Issues
- 5 Appealability of Interim Arbitral Determinations of Arbitral Jurisdiction
- E Arbitral Jurisdiction upon Vacatur
- 6.61
- 1 Confirmation and Vacatur of Awards Rendered in New York
- 2 Law Governing the Interpretation and Validity of the Arbitration Agreement
- 3 Kompetenz-Kompetenz and Judicial Review upon Vacatur
- 6.65
- 6.66
- 6.67
- (a) Review of the arbitrators’ decision as to the parties bound by the agreement
- (b) Review of arbitrators’ determination of scope of arbitration agreement
- (c) Review of arbitral determinations of the validity of the arbitration agreement
- (d) Deference in cases where a court compelling arbitration has ruled on the jurisdictional issue
- (e) Waiver of jurisdictional objections by failure to raise them before vacatur
- 4 Deference to Arbitrators on Forum-Specific Issues
- F Arbitral Jurisdiction at Recognition and Enforcement
- 6.93
- 6.94
- 1 The Place of Arbitral Jurisdiction in Recognition and Enforcement
- 2 Choice of Law Governing the Recognition and Enforcement of an Arbitral Award and Defenses Thereto
- 3 Kompetenz-Kompetenz and Review of Arbitral Jurisdiction in Recognition and Enforcement Proceedings
- 6.97
- 6.98
- (a) Deference to prior arbitral decision as to the parties bound by the agreement
- (b) Deference to the arbitrators’ determination of scope of agreement
- (c) Deference to arbitrators’ determination as to validity of agreement
- (d) Deference to arbitrators on arbitrability and “arbitrability-related” issues
- 4 Deference to Arbitrators and Vacatur Courts on Forum-Specific Issues
- 5 Waiver of Jurisdiction Challenges
- 7 Enforcing International Arbitration Agreements
- Preliminary Material
- 7.01
- 7.02
- 7.03
- A Proceeding with the Arbitration without Court Intervention
- B Court Intervention: Introduction
- C Reading the Kompetenz-Kompetenz Doctrine and the Separability Doctrine Together
- D Court Intervention: Compelling Arbitration
- E Court Intervention: Staying Litigation Commenced in the United States in Breach of an Arbitration Clause
- F Court Intervention: Antisuit Injunctions
- G Damages for Breach of an Arbitration Agreement
- H Conclusion
- 8 Obtaining Preliminary Relief
- Preliminary Material
- A Introduction to Preliminary Relief
- B Preliminary Relief from Arbitral Tribunals in New York
- 8.05
- 8.06
- 1 The Authority of Arbitral Tribunals to Issue Preliminary Relief
- 2 Preliminary Relief from Arbitral Tribunals: Types of Relief
- 3 Preliminary Relief from Arbitral Tribunals: Procedures
- 4 Preliminary Relief from Arbitral Tribunals: Judicial Enforcement
- 5 Preliminary Relief from an Emergency Arbitrator
- C Preliminary Relief from Courts in Aid of Arbitration
- 9 Discovery
- Preliminary Material
- A Introduction
- B Framework for Discovery in International Arbitrations Venued in New York
- 1 Statutory Framework
- 2 Courts in New York Support Party Autonomy: Supremacy of the Parties’ Agreement on Discovery
- 3 In the Absence of an Agreement to the Contrary, Discovery in Arbitration Will Be More Limited than Discovery in Litigation in State or Federal Court
- 4 Arbitration Rules and Guidelines
- 9.13
- 9.14
- (a) International Chamber of Commerce
- (b) International Centre for Dispute Resolution
- (c) JAMS/JAMS International Rules on Evidence
- (d) U.N. Commission on International Trade Law
- (e) International Institute for Conflict Prevention and Resolution
- (f) The International Bar Association’s Rules on Taking of Evidence in International Commercial Arbitration
- 5 The Discretion of the Arbitral Tribunal
- C Discovery Between the Parties
- D Obtaining Discovery from Nonparties
- E Discovery from Expert Witnesses
- F Discovery when Seeking Preliminary Relief in Aid of Arbitration
- G Discovery in New York in Aid of a Foreign Arbitration
- 10 Damages in International Arbitration
- Preliminary Material
- A Introduction
- B Principles Controlling the Proof and Calculation of Damages
- 1 Commercial Damages for Breach of Contract
- 2 Money Damages vs. Specific Performance
- 3 Expectation Damages
- 4 Liquidated Damages and Penalties
- 5 Punitive Damages
- 6 Alternate Theories of Commercial Damages
- 7 A Special Case: Demonstrating Damages for Anticipated Future Profits from a Lost Business Opportunity
- C Calculation of Interest
- D Attorneys’ Fees and Costs
- 11 Class Action Arbitration
- Preliminary Material
- 11.01
- 11.02
- 11.03
- A General Principles Governing Class Actions in Courts in the United States
- B The U.S. Supreme Court’s Decision in Bazzle
- C The Class Arbitration Rules Established by the Aaa and Jams following Bazzle
- D The Effect of Hall St. Associates V. Mattel on Class Arbitrations
- E The Different Sources of Law Which One Must Consider in Determining Whether a Silent Arbitration Clause Permits a Class Arbitration
- F Federal Circuit Court and State Court Decisions Regarding Consolidation of Arbitrations and Class Arbitrations before Bazzle
- G Clause-Construction Decisions by Arbitral Panels Adjudicating Class Arbitrations after Bazzle
- H The U.S. Supreme Court Decision in Stolt-Neilsen S.A. V. Animalfeeds International Corp
- I Post- Stolt-Neilsen Decisions by Arbitration Tribunals Regarding Whether “Silent Clauses” Permit Class Action Arbitrations
- J Class-Certification Decisions by Arbitral Tribunals After Bazzle
- K Arbitral Clauses Prohibiting Class Actions and Public Policy Arguments Against Such Clauses Before the Supreme Court Decisions IN AT&T MobilitY LLC V. Concepcion and American Express Co. V. Italian Colors Restaurant
- L Decisions by Courts, Before AT&T Mobility and American Express , Regarding Whether State Arbitration Laws and Concepts of Public Policy are Preempted by the Faa
- M The Supreme Court Decisions in AT&T Mobility and American Express Regarding Whether Clauses Prohibiting Class Arbitrations are Against Public Policy and Whether a State’s Public Policy is Preempted by the FAA
- N Decisions After AT&T Mobility And American Express Regarding Whether Clauses Prohibiting Class Arbitrations are Against Public Policy or Whether a State’s Public Policy is Preempted by the FAA
- O Legislation Regarding Class-Action Arbitrations
- P Conclusion
- 12 Arbitration Hearings in New York
- Preliminary Material
- 12.01
- A Conducting the Arbitration
- B Who May Appear to Represent Parties in Arbitration in New York
- C Witnesses
- D Logistics
- 13 Challenging and Enforcing International Arbitral Awards in New York
- Preliminary Material
- 13.01
- 13.02
- A Introduction
- B Procedural Issues Involved in Challenging and Enforcing International Arbitral Awards in New York
- 13.12
- 1 Actions in the Federal Courts in New York
- 13.13
- (a) General procedural considerations
- (b) Subject-matter jurisdiction
- (c) Personal jurisdiction
- (d) Establishing venue
- (e) Removal of enforcement proceedings from state to federal court
- 2 Actions in New York State Courts
- C Substantive Issues Involved in Challenging International Arbitral Awards in New York
- 1 Grounds for Nonrecognition under the New York Convention
- 13.78
- 13.79
- 13.80
- (a) Absence of a valid arbitration agreement (Article V(1)(a))
- (b) Denial of opportunity to present one’s case (Article V(1)(b))
- (c) Excess of authority (Article V(1)(c))
- (d) Violations of arbitral procedures or the law of the arbitral situs (Article V(1)(d))
- (e) Awards that are not binding or have been set aside (Article V(1)(e))
- (f) Awards that address nonarbitrable issues (Article V(2)(a))
- (g) Awards that violate public policy (Article V(2)(b))
- 2 FAA Chapter 1 Grounds for Vacating International Arbitral Awards
- 13.111
- 13.112
- (a) Award procured by corruption, fraud, or undue means (Section 10(a)(1))
- (b) Partiality or corruption of the arbitrators (Section 10(a)(2))
- (c) Failure to adjourn or hear evidence; prejudicial misbehavior (Section 10(a)(3))
- (d) Exceeding jurisdiction (Section 10(a)(4))
- (e) Manifest disregard of the law
- (f) Public policy
- (g) Sanctions for frivolous attacks on arbitral awards
- 3 New York State Law Grounds for Vacating Awards
- 4 Choice of Arbitral Law When Resisting Enforcement of an Award Made in the United States
- 1 Grounds for Nonrecognition under the New York Convention
- 14 Enforcing Awards Involving Foreign Sovereigns
- Preliminary Material
- A Introduction: The Unique Characteristics of Arbitrations Involving Sovereigns
- B The Legal Regime Applicable to the Enforcement of Arbitral Awards Against Sovereigns in New York
- C Dealing With the Problem of Recalcitrant States
- Introduction: The New York Arbitration Landscape
- Further Material
- Appendix 1 Schedule of International Arbitration Conventions
- Appendix 2 Federal Arbitration Act
- Arbitration
- Ch.1 General Provisions
- s.1 “Maritime transactions” and “commerce” defined; exceptions to operation of title
- s.2 Validity, irrevocability, and enforcement of agreements to arbitrate
- s.3 Stay of proceedings where issue therein referable to arbitration
- s.4 Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination
- s.5 Appointment of arbitrators or umpire
- s.6 Application heard as motion
- s.7 Witnesses before arbitrators; fees; compelling attendance
- s.8 Proceedings begun by libel in admiralty and seizure of vessel or property
- s.9 Award of arbitrators; confirmation; jurisdiction; procedure
- s.10 Same; vacation; grounds; rehearing
- s.11 Same; modification or correction; grounds; order
- s.12 Notice of motions to vacate or modify; service; stay of proceedings
- s.13 Papers filed with order on motions; judgment; docketing; force and effect; enforcement
- s.14 Contracts not affected
- s.15 Inapplicability of the Act of State doctrine
- s.16 Appeals
- Ch.2 Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- s.201 Enforcement of Convention
- s.202 Agreement or award falling under the Convention
- s.203 Jurisdiction; amount in controversy
- s.204 Venue
- s.205 Removal of cases from State courts
- s.206 Order to compel arbitration; appointment of arbitrators
- s.207 Award of arbitrators; confirmation; jurisdiction; proceeding
- s.208 Chapter 1; residual application
- Ch.3 Inter-American Convention On International Commercial Arbitration
- s.301 Enforcement of Convention
- s.302 Incorporation by reference
- s.303 Order to compel arbitration; appointment of arbitrators; locale
- s.304 Recognition and enforcement of foreign arbitral decisions and awards; reciprocity
- s.305 Relationship between the Inter-American Convention and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958
- s.306 Applicable rules of Inter-American Commercial Arbitration Commission
- s.307 Chapter 1; residual application
- Ch.1 General Provisions
- Arbitration
- Appendix 3 NY Civil Practice Law and Rules, Article 75
- § 7501 Effect of arbitration agreement
- § 7502 Applications to the court; venue; statutes of limitation; provisional remedies
- § 7503 Application to compel or stay arbitration; stay of action; notice of intention to arbitrate
- § 7504 Court appointment of arbitrator
- § 7505 Powers of arbitrator
- § 7506 Hearing
- § 7507 Award; form; time; delivery
- § 7508 Award by confession
- § 7509 Modification of award by arbitrator
- § 7510 Confirmation of award
- § 7511 Vacating or modifying award
- § 7512 Death or incompetency of a party
- § 7513 Fees and expenses
- § 7514 Judgment on an award
- Appendix 4 Supreme Court, New York County Commercial Division, Charles E. Ramos, Justice, International Arbitration Rules (2013) International Arbitration Part Rules—Part 53
- Appendix 5 Schedule of Arbitration Rules and Guidelines
- Appendix 6 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes
- Preamble
- Note on Neutrality
- Note on Construction
- Canon I: An Arbitrator should Uphold the Integrity and Fairness of the Arbitration Process
- Canon II: An Arbitrator should Disclose any Interest or Relationship Likely to Affect Impartiality or which might Create an Appearance of Partiality
- Canon III: An Arbitrator should Avoid Impropriety or the Appearance of Impropriety in Communicating with Parties
- Canon IV: An Arbitrator should Conduct the Proceedings Fairly and Diligently
- Canon V: An Arbitrator should make Decisions in a just, Independent and Deliberate Manner
- Canon VI: An Arbitrator should be Faithful to the Relationship of Trust and Confidentiality Inherent in that Office
- Canon VII: An Arbitrator should Adhere to Standards of Integrity and Fairness when making Arrangements for Compensation and Reimbursement of Expenses
- Canon VIII: An Arbitrator may Engage in Advertising or Promotion of Arbitral Services which is Truthful and Accurate
- Canon IX: Arbitrators Appointed by One Party have a Duty to Determine and Disclose their Status and to Comply with this Code, Except as Exempted by Canon X
- Canon X: Exemptions for Arbitrators Appointed by One Party who are not Subject to Rules of Neutrality
- Appendix 7 Schedule of New York City Bar Association Arbitration Reports
- Index