Ancillary Judicial Proceedings

Forum non conveniens is one of several judicial abstention doctrines, applied from time to time by U.S. courts, that permit a court to dismiss (without prejudice) a plenary action in its discretion.  In a forum non conveniens case, the court’s jurisdiction is not in question, but the relative legal “inconvenience” of having the matter heard in that court, as opposed to another court of competent jurisdiction, is deemed sufficient for the U.S. court to abstain from exercising its authority.  A defendant seeking abstention on forum non conveniens grounds typically is required to establish that an adequate alternative forum is available, and that a balancing of interests strongly favors dismissal by the U.S. court in favor of that other forum.  

But can – or should – such a court-made doctrine properly be a defense in a non-plenary proceeding brought by an arbitration awardee seeking enforcement vis-à-vis assets in the United States?  Could a court outside the U.S. grant that remedy instead?  And in any case, do the applicable international conventions afford U.S. courts the latitude to enforce arbitral awards in their discretion?

Continue Reading Enforcement of International Arbitral Awards in the U.S. – Could a Court Abstain Due To “Inconvenience”?

For nearly thirty years, federal and state appellate courts have been split on the issue of whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, November 15, 1965 (“Hague Service Convention” or “Convention”), permits service of process by mail. In Water Splash, Inc. v. Menon, 197 L. Ed. 2d 826, 830 (2017), the Supreme Court resolved that issue, holding that the Convention does not prohibit such service.

Continue Reading Supreme Court Holds That the Hague Service Convention Does Not Prohibit Service of Process Abroad by Mail

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., does not contain an express preemption provision, nor was it intended to be the exclusive codified arbitration law in all circumstances.  However, the United States Supreme Court has repeatedly taught that where the FAA applies, it is deemed to supersede state laws that are inconsistent with its provisions and purposes.  Yet recent decisions by the highest courts of North Carolina and New Hampshire provide examples of continued efforts by state courts to chip away at the preemptive effect of the FAA concerning the interpretation and enforcement of arbitration agreements and the confirmation or vacatur of arbitral awards.

Continue Reading State Supreme Courts Continue to Try to Chip Away at FAA Preemption; The United States Supreme Court Is Not Amused

In most countries, it is uncontroversial that a court sitting at the situs of an arbitration has jurisdiction to adjudicate a petition to confirm or vacate or modify an award issued in that arbitration. In the United States federal courts, however, the mix of issues concerning subject matter jurisdiction and personal jurisdiction, respectively, has made for bewilderment galore.

Continue Reading Only in America: The Controversy Concerning Federal Jurisdiction Over Motions to Confirm, Vacate, or Modify Arbitral Awards

In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2017 U.S. App. LEXIS 3815 (2d Cir. Mar. 2, 2017), the U.S. Court of Appeals for the Second Circuit provides something of a primer regarding enforcement in the United States of a foreign-issued arbitral award, which is subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and Chapter 2 of the Federal Arbitration Act (“FAA”).  In an effort to clear up confusion, the court (i) defined several pertinent terms and explained their significance, (ii) urged practitioners and judges to use consistent terminology, (iii) examined when a district court sits in primary jurisdiction versus in secondary jurisdiction, (iv) explained the differences between a non-domestic arbitral award and a foreign arbitral award, and (v) described the treatment of each when brought to a U.S. district court for enforcement.

Continue Reading A Primer for Enforcement in the U.S. of Foreign-Issued Arbitration Awards (Courtesy of the Second Circuit)

Last month, we described the split among Federal Circuit Courts regarding the question of whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 3, mandates a stay rather than dismissal of a judicial proceeding after a district court compels arbitration of all of the claims in an action before it. (LINK) But what is the practical significance of the district court’s retaining jurisdiction?  Among other things, it may thus be able to grant interim relief in order to preserve the status quo pending arbitration.

Continue Reading Powers of a District Court to Grant Interim Relief After Compelling Arbitration of All Claims Before It

You presented your case, and the arbitration tribunal came back with a reasoned decision and an award in your favor. You even had the award confirmed here in the United States.  You want to enforce it.  But you find that the award-debtor’s assets are all held in or have been moved to a country that is not a party to the New York Convention.  Now what?

Continue Reading Enforcement of an International Arbitration Award in a Non-New York Convention Country

Under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., if a District Court compels arbitration of all of the claims that are before it, and thereupon dismisses the suit, its order compelling arbitration is final and appealable; but if the District Court stays the suit, its order compelling arbitration is “non-final” and not immediately appealable.  So what’s a right and proper court to do? The Federal Courts of Appeal are divided on the question of whether the FAA requires a stay or dismissal of judicial proceedings after a District Court sends all of the claims in suit before it to arbitration.  Currently, some parts of the U.S. are in effect more “arbitration friendly” in this regard than others.

(Note that we are not considering here the case of an “independent” motion to compel or to stay arbitration.  In that case, a petition under FAA § 4 commences a special proceeding, and no ordinary claim in suit is before the court.)

Continue Reading Does the Show Stop For Appeal After a Court Compels Arbitration? The Federal Circuit Courts Are Split

Published in Law 360 (Jan. 23, 2017)

A Federal court in New York recently opened the door there for U.S.-style discovery of evidence in aid of foreign or international commercial arbitrations, in accordance with a unique American statute – 28 United States Code (“U.S.C.”) § 1782.

Continue Reading Yes We Can: The Door Opens in the Second Circuit to Discovery in Aid of International Commercial Arbitration