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January 09, 2018

Thinking About Arbitral ESI Retention Orders

In the United States, federal and state trial courts recognize a legal duty of a litigant to retain documents, a duty that comes into existence upon coming into possession of facts providing the party with actual or constructive notice of the reasonable possibility of litigation. The scope of the duty, i.e. the documents to which the duty applies, are those documents that would be subject to production under the court’s discovery rules in response to a (properly-framed and timely-presented) document request made by the adverse party. Documents potentially shielded from the obligation to produce them because they are covered by…
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Recent Posts

January 09, 2018

Toward a Uniform Position on US Arbitral Subpoenas

American arbitration law in force since 1925 empowers arbitrators to issue subpoenas to non-parties. This power is found in Section 7 of the US Arbitration Act (FAA). This provision is essentially the only provision of the FAA that directly states a micro-level rule of procedure concerning how proceedings shall be conducted in  an arbitration involving interstate or international commerce. Therefore authoritative decisional law about the meaning of FAA Section 7 has considerable importance to the day-to-day work of arbitrators in domestic and international cases that are seated in the United States (or by agreement are governed by US arbitral procedural…
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November 01, 2017

Mediation for Catalonia and Spain?

In the past two days, the international news media following the Catalonia independence movement crisis have reported that the independence leader and deposed Catalonia President Carlos Puidgemont has arrived in Brussels, possibly eventually to seek asylum, conceivably to form a “government in exile,” perhaps only, and ostensibly, to secure assurances of fair judicial process for his potential criminal prosecution in Spain.  The New York Times reports that “Belgium is virtually the only national government in Europe that has been even remotely sympathetic to Mr. Puidgemont’s pleas for mediation, not least perhaps because the country has faced separatist tensions of its…
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October 31, 2017

Do Arbitrators Know the Law? Or Find It?

Here in common law America we do not have much direct and systematic discussion about when and under what conditions international arbitrators may or should conduct their own legal research to ascertain or clarify the applicable law that they should apply. We have a passing familiarity, from contacts with our civil law colleagues, with the civil law term iura novit curia (literal translation, “the judge knows the law”). But the reality is that some American international arbitrators consider the law to be what is found in bound volumes of submissions (briefs and authorities) presented by the parties, while others consider…
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October 03, 2017

First Monday in October

By law, since 1917, the Supreme Court has opened its single annual term on the first Monday in October. This came about by an act of Congress, modifying the federal Judicial Code, on September 6, 1916 (see article at www.constitutioncenter.org). Sixty-five years later, in 1981, Paramount Pictures released a film feature entitled First Monday in October, starring Jill Clayburgh as the Court’s first woman Justice, a conservative, who enters into a romantic relationship with her liberal colleague and mentor played by Walter Matthau. Fast forward 36 years. On the first Monday in October 2017, at 10:00 a.m., the Supreme Court…
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October 03, 2017

Funder, Thy Name Is …

I learned from reading the draft ICCA-Queen Mary Report on third-party funding in international arbitration a significant industry fact that perhaps is already well-known to many of you: that prominent third-party funders now engage prominent international arbitrators to work with (or perhaps indeed for) them to assist in the screening of cases for potential investment. I did not find in the draft report, however, any specific discussion of how this development in the market might affect the arbitration community’s views on the precise contours of disclosure of third party funding in international arbitration, now that a consensus appears to have…
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September 28, 2017

If Only These Conflicts Could Be Mediated …

The past week was a challenging week for all of us, including those of us who consider ourselves to be mediators. What does the mediation profession have to offer toward resolution of national and international disputes that have not been submitted to mediation (so far as we know)? Some of the attributes that an effective mediator might bring to the table if such disputes were mediated, and in turn might bring to the discussion of these disputes even if they are not mediated, include: (1) an interest in identifying the fundamental interests of both sides, (2) an ability to understand…
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