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International Litigation & Arbitration Blog

Ninth Circuit Joins the Dissenter, Holds that Employers Can Not Prohibit Concerted Actions

The Supreme Court may soon be taking on an issue that has divided several of the federal circuit courts. The circuits disagree on a fundamental question that relates to arbitration and labor law - whether an agreement to arbitrate is valid when an employee waives the right to bring claims against an employer as part of a class or collective. In other words, can an employee be barred from being part of a class action lawsuit where there is an agreement to arbitrate and a waiver of the right to pursue collective claims?

D.C. Circuit Sends Claims Against Airbnb for Discrimination to Arbitration Proceedings

Recently, the #Airbnbwhileblack hashtag started floating around social media as a way to bring awareness to several reported instances of African Americans having issues with booking accommodations through Airbnb, a service that allows peer-to-peer short-term rentals of houses and apartments. Indeed, research has found that African-American users of Airbnb frequently encounter racial discrimination as they try to find a place to stay.

Arbitration: The Symbiosis of Statute and Contract

Arbitration continues to gain in popularity as a dispute resolution method, primarily due to the time and cost savings it offers to parties. While Massachusetts recognizes arbitration as "a creature of contract," the Massachusetts Arbitration Act (G.L. c. 251) (the "MAA") provides the legal framework (1) to compel parties to adhere to agreements to arbitrate; (2) to enforce arbitration awards through the courts; (3) to define the powers of arbitrators; and (4) to vacate arbitration awards under certain circumstances.  

China v. the Philippines: Can Countries Ignore International Arbitration?

As President Obama meets with Asian leaders this week, his conversations with Chinese president Xi Jinping will surely touch on what has become a contentious topic with deep implications in the international community - namely, the rise of Chinese expansionism into the South China Sea. This, in turn, will reverberate on the international order and ability of countries to hold each other accountable under international treaties.

Massachusetts SJC Issues Important Decision Curtailing The Availability Of Attorney's Fees In Arbitration

In Beacon Towers Condominium Trust v. Alex, 473 Mass. 472 (2016) ("Beacon Towers"), the Massachusetts Supreme Judicial Court decided that an arbitral tribunal had overstepped the bounds of its authority when it awarded attorney's fees pursuant to the Commonwealth's frivolous claims statute. The SJC ultimately vacated the arbitral tribunal's fee award, despite noting that arbitration awards enjoy an exceptionally narrow scope of judicial review.

Mediation Strategy: The First Plenary Session

I recently participated in a panel discussion for a mediation course at a local law school. A well-known full time mediator and a U.S. federal magistrate judge who regularly conducts mediations in the federal court were with me. A highly engaged class of law students asked us to address a range of practical questions on the mediation process. 

Alternative Dispute Resolution In Massachusetts: What Is Conciliation?

Supreme Judicial Court Rule 1:18 encompasses the Uniform Rules on Dispute Resolution ("Rules"). The Rules govern court-connected dispute resolution services provided in civil and criminal cases in the Commonwealth's trial courts. One of the express purposes of the Rules is to "foster innovation" in the delivery of court-connected dispute resolution services. Conciliation is an alternative dispute resolution process offered in many of the Commonwealth's Probate & Family Courts, and in some District and Superior Courts.

Judge Vacates Major League Baseball Arbitral Award

As this blog has chronicled in the past, it is extremely difficult for an arbitral award to be vacated. The Federal Arbitration Act and many state arbitral acts provide very limited grounds for vacatur, as courts are reluctant to second-guess an arbitrator's decision. Indeed, courts have even refused to vacate awards when the arbitrator erred in his application of the law. Even a "grave error" made by the arbitrator is insufficient to vacate an award, as it is not amongst the grounds for vacating a decision.

Offering Testimony By Videoconference in International Arbitration

Testimony by videoconference in international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.

Tenth Circuit Upholds Refusal to Stay Court Proceedings due to Arbitration Default

The Tenth Circuit Court of Appeals recently affirmed a district court's decision to lift the stay in federal proceedings due to the arbitrator's decision to terminate proceedings based on a party's failure to pay the arbitration fees. It reached this decision by concluding it had proper jurisdiction to hear the appeal and that the district court had reached the correct decision on the merits - that the employee was in default of his obligation to pay the arbitrator's fees and that the proceedings were properly terminated.

International Jurisdiction and the FIFA Indictment

Shortly after New York Attorney General Loretta Lynch's 47-count indictment involving FIFA (Fédération Internationale de Football Association) was announced in May, legal insiders and outsiders alike were asking how the U.S. was able to coordinate the arrests of foreign citizens in foreign countries for violating U.S. laws. The question--one of jurisdiction--is likely to be examined closely as the FIFA case plays out in federal district court.  At the center of the indictment is the claim that FIFA was engaged in a "pattern of racketeering activity," which provides the backbone for the charges under the Racketeer Influenced and Corrupt Organizations Act ("RICO").   

Getting To Arbitration

Massachusetts law recognizes arbitration as "a remedy created by statute which limits its availability to the parties to an arbitration agreement."  Rae F. Gill, P.C. v. DiGiovanni, 34 Mass.App.Ct. 498, 503 (1993).  In other words, a statute - the Massachusetts Arbitration Act (G.L. c. 251) ("MAA") - creates the ability for parties to settle their legal disputes through arbitration, but those parties also must have a prior agreement to do so.  But what happens when one party refuses to arbitrate? 

Swedish Court of Appeals Overturns $173 Million Arbitration Award On Grounds That Arbitral Panel Exceeded Its Authority

One of the advantages of arbitration is the certainty that comes with it. While arbitration awards can be challenged in court, it is extremely difficult to overturn an award. In fact, courts will vacate, or refuse to confirm an arbitration award only if there was a serious conflict of interest or corruption on the part of a neutral arbitrator, or the arbitrators exceeded their powers. This latter ground, the arbitrators exceeding their authority, is most frequently used as a basis for setting aside an arbitral award. A recent decision by the Swedish Court of Appeals setting aside a US $173 million arbitration award provides some guidance on how this standard may be applied.

Family Law Arbitration

I recently returned from the American Academy of Matrimonial Lawyers Arbitration Training Institute as a Certified Family Law Arbitrator.  A few words about family law arbitration: Arbitration falls within the category of alternative dispute resolution ("ADR").  It can be a very helpful tool to resolve family conflict.  Contested litigation is the traditional method to resolve legal disputes arising from family law matters, but contested litigation can be a time consuming and expensive process.  As a result of the frustration and expense that many have experienced from being engaged in contested family law litigation, there has been a push in recent years to resolve family law matters through various ADR procedures, such as mediation, conciliation, and arbitration.  

Translating Written Documents in International Arbitration and Litigation

An inherent challenge of cross-national business endeavors is that, once a deal or business relationship is in place, the actual terms of the contract will be carried out in different countries. Despite the fact that the trans-national agreement or contract was written in one language and that the terms of the agreement likely specify that such language is the "controlling" language in the event of a dispute, the execution of the terms of that contract will, in almost all cases, be carried out in different languages.

Appeals Court Clarifies What Constitutes Exceeding An Arbitrator's Authority, Approves Arbitration of Statutory Claims

The Massachusetts Appeals Court has ruled that an arbitrator exceeds her authority only when "she awards relief beyond the scope of the arbitration agreement, beyond that to which the parties bound themselves, or enters an award prohibited by law." Conway v. CLC Bio, LLC, 2015 WL 9883907, Mass. App. Ct. No. 14-P-350 (June 12, 2015), at 5-6. The Court also reiterated that the Federal Arbitration Act ("FAA") requires enforcement of an agreement to arbitrate statutory claims "absent a question of arbitrability, countervailing Congressional command, or cognizable challenge to the validity of the agreement to arbitrate." Id., at 10. 

One Step Closer to Enforcing Foreign Child Support Orders: U.S. Ratification of the Hague Convention on the International Recovery of Child Support is Near

The cross-border enforcement of child support has long bedeviled parents and children who seek a delinquent parent's compliance with a court order. Given the many difficulties inherent to the enforcement of court orders in foreign jurisdictions, as well as the heavy costs associated with those efforts, many parents had a difficult time registering and enforcing child support orders if the debtor was in another country.

Differences Between International Arbitration and Litigation in U.S. Courts

There are fundamental differences between international arbitration and litigation in the U.S. courts that can impact the cost of resolving your dispute, the time to resolution, and each party's respective level of comfort with the process. Below, I set out a few important distinctions between the two processes.   

Issues With Interpretation In International Arbitration

A central feature of international arbitration is the presence of counsel, parties, and even arbitrators who hail from several different countries. Frequently, more than one nationality is represented at the arbitral hearing, and with that diversity come a host of issues that are not immediately apparent -- chief among them is the variety of different languages being spoken. Since a hearing will only be conducted in one language, it is often the case that many people in the room will need the services of both translators and interpreters in order to be present and fully understand the proceedings.

What Happens When Your Selected Arbitral Forum Is Unavailable?

Arbitration agreements often name a particular arbitral forum to conduct an arbitration, but what if, when a dispute arises, that arbitral forum no longer exists or is otherwise unavailable? In Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1350 (11th Cir. 2014), the Eleventh Circuit held that "the failure of the chosen forum precludes arbitration whenever the choice of forum is an integral part of the agreement to arbitrate, rather than an ancillary logistical concern." This ruling reinforced Eleventh Circuit precedent and reflects the law in the majority of Circuit Courts that have considered the question. 

Direct Benefits Estoppel -- Compelling Non-Signatories to Arbitrate

The Seventh Circuit recently ruled that a party was bound to an arbitration award despite not being a signatory to the agreement to arbitrate. The court based its decision on the doctrine of "direct benefits estoppel," ruling that, even though the plaintiff was a non-signatory to the franchise agreement that contained an arbitration clause, she had received a direct benefit from the franchise agreement, and thus was bound under the terms of the arbitration award.

Top 10 Reasons to Choose International Arbitration in Dispute Resolution Clauses

In the negotiation of complex cross-border commercial contracts, the parties too often pay scant attention to the terms of dispute resolution clauses.  The clear advantages of choosing international arbitration over court forums can be overlooked.

New Study Provides Important Empirical Data on Arbitration

The private nature of arbitration means that there is typically less information available-- to lawyers, their clients, and the public -- about the practices and preferences of arbitrators.  A recently published study on arbitration, described by authors Thomas J. Stipanowich and Zachary P. Ulrich as "a wide-ranging, thoroughgoing empirical survey of practices and perspectives among experienced commercial arbitrators" sheds light on current trends in domestic and international arbitration.   

Application of the CISG in International Sale of Goods Contracts

When handling a commercial case between parties from different countries, it is important to consider what impact, if any, the United Nations Convention on Contracts for the International Sale of Goods ("CISG") may have on the dispute. If it applies to a contract dispute, the CISG will supplant the Uniform Commercial Code and other state law concerning sales of goods.

The Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") is a multilateral treaty.  The signatory countries cooperate in returning children to their home country for custody proceedings. The United States assisted in drafting the Hague Convention and became a signatory in 1981.

Who Decides the Arbitrability of Class Action Lawsuits?

In a recent case, the California Court of Appeal for the Fourth Appellate District handed down a decision involving the question of whether the court or the arbitrator decides if a case involving a class action can be arbitrated when the arbitration agreement is silent as to that issue. Specifically, the court asked: "Who decides whether an agreement to arbitrate disputes between the parties to the agreement authorizes class and/or representative arbitration when the contract is silent on the matter--the arbitrator or the court?"

No Long-Arm Jurisdiction Over Out-of-State Internet Author

A judge recently held that the Massachusetts Superior Court did not have long-arm jurisdiction to hear a defamation claim against several non-residents who allegedly published false, defamatory statements about a Massachusetts resident on the Internet. See Arthur v. Doe, 32 Mass. L. Rptr. 296 (2014), 2014 WL 4364850. The opinion -- while not binding authority -- may be of interest to foreign litigants who find themselves facing Internet-based defamation claims in the Commonwealth. 

Overcoming Language Barriers in International Arbitration

As with any cross-border endeavor, language barriers can become a hurdle to overcome in international arbitration and litigation. The dispute resolution clause in a contract may compel the client to arbitrate or litigate in a country other than their own. Arbitrators, parties, and even counsel may all hail from countries that speak different languages. Thus, a successful practitioner must give due consideration to the opportunities and challenges presented by the diversity of languages that may present itself in any given case.

A Practical Guide to Selecting an Arbitrator

One of the many advantages of arbitration over litigation is that the parties to a dispute have the opportunity to choose the arbitrator or arbitrators who will decide their claims. The selection of an arbitrator is a critical decision point that necessarily occurs very early in the arbitral process. The stakes are high since an arbitrator's award is very difficult -- some say nearly impossible -- to have vacated. Choosing an arbitrator who is well suited to your case requires careful consideration of many factors, several of which are set out below. 

Obtaining Discovery From Non-parties For Use In Arbitration

Party discovery in arbitration is quite limited, particularly in comparison to the scope of discovery permitted by the Federal Rules of Civil Procedure. However, to what extent can an arbitrator order a third party - who, it should be noted, never agreed to arbitrate -- to appear and testify at an arbitration or to produce documents or other tangible items for use as evidence at an arbitration? 

Do you "Like" mandatory arbitration? If so, "Like" this cereal

A couple of weeks ago, social media exploded with outrage over a news story in the NYT that reported that, by "liking" a brand on Facebook, a consumer would lose his or her ability to sue the company. The story referred to an update in General Mills's online "terms of use," which the NYT said, "quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, "join" it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways."

Supreme Court Breathes New Life Into $185M Arbitration Award Against Argentina

BG Group plc won a major victory at the U.S. Supreme Court last month when the Court upheld an arbitration award requiring Argentina to pay BG Group more than $185 million.  The case is yet another example of the deference that arbitration awards receive in U.S. courts.

Working into Arbitration: Binding Arbitration Pursuant to Employee Handbooks

Employers and employees everywhere should check their employee handbooks - if it has an arbitration provision, it is likely any disputes between the two will take place in arbitration rather than in court.

Principle of International Comity Suffers a Setback in Chevron-Ecuador Case

Earlier this month, a federal judge in the Southern District of New York spun a new twist in the long-standing legal battle over environmental contamination in the Lago Agrio region of Ecuador. In a 485-page ruling, Judge Lewis Kaplan ruled that lawyers leading the Lago Agrio plaintiffs' prosecution of claims against Chevron (which acquired the alleged contaminator, Texaco) used corrupt means to secure an $18 billion judgment from an Ecuadorian court.  See Chevron Corp. v. Donziger et al, S.D.N.Y. 11-00691.

No Expansion and No Contraction: The Scope of Judicial Review of Arbitration Awards

In a recent decision, the Ninth Circuit Court of Appeals ruled that parties cannot agree under a contract to limit the scope of judicial review of an arbitration award as delineated by the Federal Arbitration Act (the "FAA"). This ruling complements a 2008 Supreme Court case, Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), where the Court held that a clause in an arbitration agreement providing for expanded judicial review beyond what was provided for in the FAA was unenforceable. In light of the Ninth Circuit's new ruling, parties also cannot go the other way and curtail the scope of review to which the parties are entitled under the Federal Arbitration Act.

Counsel's Role in Reducing Costs in International Arbitrations

Parties to a dispute often cite cost control as a reason for choosing arbitration over litigation.  To achieve the goal of keeping arbitration costs down, it is important for counsel to play an active role in advocating for cost control.  Without counsel's vigilant attention from the outset of the case, arbitration costs can rival litigation expenses.  This is especially true in international arbitrations where parties, counsel, and arbitrators hail from different parts of the world.

Bridging the Gap: Arbitration's Impact on the Panama Canal

In August of this year, the Panama Canal will turn one hundred years old. An engineering marvel from its inception, the canal serves as a shortcut for 13,000 ships every day, making it one of the busiest and most important commercial waterways in the world. Efforts are underway to build an additional set of locks that would create a new lane of traffic, effectively doubling the canal's capacity.

Drawing the Line: The Dispute Between China and the Philippines Over Territoriality

Lost in the hype surrounding the Senkako-Diayou dispute between China and Japan over territoriality is another similar conflict that also involves China. For the last few years, China and the Philippines have been contesting a 2,000 mile stretch of sea that not only includes enormous deposits of oil and gas, but also serves as one of the world's primary shipping lanes.

Optional Appellate Arbitration Rules

The American Arbitration Association recently released Optional Appellate Arbitration Rules, which aim to provide parties with an opportunity to have appeals of an arbitral award heard within the arbitration process itself.  Typically, applications to vacate arbitral awards are heard in courts, and the grounds for vacatur are quite limited pursuant to federal and state arbitration statutes. 

Rule Change: The Revised Commercial Arbitration Rules of the AAA

In an important development, the American Arbitration Association has revised its Commercial Arbitration Rules to include a host of changes that seek to streamline arbitration and make the process more cost-effective and tightly managed. The rules, which can be found here, are amended and effective as of October 1, 2013. As a result, practitioners filing new arbitration claims that will be governed by the Commercial Arbitration Rules will need to familiarize themselves with the revisions, as they provide significant changes in the process. Litigators should also note that parties to ICDR proceedings may choose to use these rules instead of the ICDR International Arbitration Rules.

Chancery Confidential: Third Circuit Eliminates Confidential Arbitration

In a rare setback to the growing arbitration field, the Third Circuit Court of Appeals recently struck down on a 2 to 1 vote Delaware's confidential state-sponsored arbitration program. The Court held that, as with the chancery courts, the public had a First Amendment right of access to the court's arbitration proceedings.

The Arctic 30: Does Arbitration Have The Power To Free Them?

An international crisis appears to lurching towards a resolution, as the Russian government has dropped piracy charges against 30 Greenpeace activists it arrested last month in the Arctic Circle. Instead, Russia will charge the protestors with "hooliganism," which is punished with a maximum of 15 days in jail, in contrast to piracy's 15-year sentence.

Compelling Arbitration in Massachusetts

Like other states, Massachusetts has enacted an arbitration statute that provides a streamlined procedure for compelling a party to arbitrate.  Section 1 of the Massachusetts Uniform Arbitration Act, G.L. c. 251, recognizes two types of arbitration agreements: (i) those requiring parties to a contract to submit any dispute arising between them to arbitration, and (ii) those requiring parties to submit an existing dispute to arbitration.  If a party reneges on either type of agreement, the aggrieved party can file an application in the Massachusetts Superior Courts to compel arbitration.  Such applications are heard as motions and typically must be served on the non-arbitrating party in the manner required for original writs of summons, though the parties can agree, and often do agree, on another procedure for service.

Stay Classy, Eleventh Circuit: Class Arbitration Allowed

In a major decision, the U.S. Court of Appeals for the Eleventh Circuit recently confirmed an arbitral award that permitted class arbitration when the underlying arbitration clause was silent on the permissibility of class arbitration. By issuing this decision in Southern Communications Services, Inc v Thomas, No 11-15587, 2013 WL 3481467 (11th Cir July 12 2013), the court once again underscored the extremely high level of deference granted to arbitrators, while at the same time threw a lifeline to the sputtering class action practice in the United States.

Federal Circuit Expands Its Appellate Overview in ITC Cases Involving Arbitration

In a closely watched decision, the U.S. Court of Appeals for the Federal Circuit recently determined that an order of the International Trade Commission ("ITC") terminating an investigation on the basis of an arbitration agreement is an appealable final determination under 19 U.S.C. § 1337(c). As a result of this case, the federal circuit now has jurisdiction over appeals based on determinations of the ITC to terminate investigations due to pre-existing arbitration agreements.

Fifth Circuit Cements Principle of Federal Deference to Arbitration Awards

In yet another example of the great deference accorded to arbitral decisions by U.S. Federal Courts, the Fifth Circuit recently declined to vacate or modify an award based on allegations of arbitrator misconduct. Despite intimations that the conduct of the opposing party and the arbitrator may have led to a reversal had it occurred in the district court, the Fifth Circuit cited the bedrock principle that, due to a "strong federal policy favoring arbitration," judicial review of arbitration awards is "extremely narrow," and refused to vacate the award.

New IBA Guidelines of Party Representation in International Arbitration

The International Bar Association ("IBA") recently released the "IBA Guidelines on Party Representation in International Arbitration" ("Guidelines").  According to the preamble, the Guidelines are an attempt at normalizing the conduct of counsel relating to party representation in the face of the "diverse and potentially conflicting rules and norms" commonly found in international arbitration.  By adopting the Guidelines, parties subscribe to "the principle that party representatives should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense, including tactics aimed at obstructing the arbitration proceedings."

The Price of Agreeing to Arbitration

In the recent decision of Oxford Health Plans v. Sutter, the U.S. Supreme Court ruled unanimously that even a "grave error" of an arbitrator is not enough to vacate an award in most cases. Oxford Health Plans had gone to federal court seeking to vacate an arbitrator's decision that John Sutter, MD, could bring a class action on behalf of himself and other New Jersey physicians alleging that Oxford failed to make full and prompt payment for services provided to members of Oxford's network.

The Foreign Corrupt Practices Act: An Overview

In many parts of the world, cash payments to government officials are not only routine, but required to do business.  While some foreign governments may turn a blind eye to such practices, the United States does not.  Under the Foreign Corrupt Practices Act (FCPA), both U.S. and non-U.S. persons and entities may incur civil and criminal liability, even for actions that take place outside U.S. territory.  To ensure compliance with the law, anyone doing business overseas should be familiar with the provisions of FCPA.

Mass. Gen. Law Chapter 93A -- One Benefit of Litigating in Massachusetts

As a foreign attorney representing a party whose business dispute is governed by Massachusetts law, you might want to learn about the rights available under the consumer protection statute in Massachusetts, M.G.L. c. 93A.  Massachusetts General Laws c. 93A, § 2 (a) makes unlawful any "[u]nfair or deceptive acts or practices in the conduct of any trade or commerce."  This prohibition is "extended to those engaged in trade or commerce in business transactions with others similarly engaged" by M.G.L. c. 93A, § 11. 

Emergency Relief in International Arbitration

Before running off to Court to file an emergency request for a temporary restraining order or a preliminary injunction, counsel should consider whether the same relief can and should be sought from an arbitral institution.  Start with review of the agreement at issue and its dispute resolution clause; you may find that it provides a preferable alternative to Court.  Effective procedures for emergency interim relief are provided by the rules of leading arbitral institutions of the world, including the International Chamber of Commerce (ICC), The London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution of the American Arbitration Association (ICDR) and others.

Challenging an Arbitration Award in Massachusetts

Alternative dispute resolution is rightly gaining steam as an efficient, fair mechanism for the resolution of complex business disputes.  Many companies are redrafting their standard-form contracts to include mandatory arbitration clauses.  This is particularly true for companies doing business across state or national borders, so that they might avoid being hauled into court in a foreign jurisdiction.  But what if you agree to arbitrate a dispute and end up losing?  Do you have any recourse? 

Fighting for Silver: The Legal Consequences of Nationalization in Bolivia

Seven years ago this week, one of the most significant chapters in Bolivian history began. With one stroke of the pen on May 1, 2006, then-newly-elected president Evo Morales issued a decree nationalizing all of Bolivia's oil and gas reserves. This was shortly followed by efforts to nationalize many other natural resources in the country, including precious minerals and other elements. The nationalization of many industries has had significant legal consequences, most of which are still felt today.

The Burgeoning International Arbitration Field in Southeast Asia

As more and more nations strive to cut themselves a piece of the international arbitration pie, Southeast Asia is a perfect example of a region where countries are looking to broaden their presence in the field of international arbitration. Recently, the Singapore International Arbitration Centre ("SIAC") saw an increase to an all-time-high figure of $2.9bn (£1.9bn) in revenue from new international arbitration cases. The number of new cases for the SIAC jumped from 188 in 2011 to 235 in 2013, for an increase of 25 percent.

Australian High Court Clears the Way for Enforcement of Arbitral Awards

One of the questions that is most often asked by clients is whether or not an award issued in international arbitration - which is a private vehicle for dispute resolution - is enforceable and whether collection can be guaranteed to the fullest extent of the law. In other words, whether an arbitral award can be enforced in the same way that a judgment from a court is enforced.

International Arbitration: Hearing Testimony by Videoconference

Testimony by videoconference in international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.

Foreign Legal Consultants in Massachusetts

In our modern global economy, many Massachusetts companies are finding themselves with a need not only for legal advice concerning Massachusetts and U.S. law, but also for legal advice concerning international law and the local laws of foreign countries in which they do business.  As a result, foreign legal consultants--foreign lawyers who advise Massachusetts companies and residents on foreign law--are increasingly in demand.  In order to avoid running afoul of prohibitions against the unlicensed practice of law, foreign legal consultants must become licensed prior to providing any legal advice in Massachusetts.  There are specific rules issued by the Massachusetts Supreme Judicial Court ("SJC") governing the licensing of foreign legal consultants and the limits of their practice.  Both foreign attorneys seeking to consult in Massachusetts, and Massachusetts companies seeking to retain foreign legal consultants, should become familiar with these and other applicable rules.

The Public Records Law: A Powerful Pre-Discovery Tool

The Massachusetts Public Records Law (or PRL) provides an often overlooked, simple, cost effective and powerful tool for litigants to investigate claims and gather pertinent documents even before the commencement of a lawsuit.  Like its federal analogue the Freedom of Information Act (or FOIA), the Massachusetts PRL allows anyone to request any records generated, received or maintained by a Massachusetts governmental agency, department, or subdivision, whether in electronic or paper form, including computer records, electronic mail, video and audiotapes.  I have found that in many business disputes, using the PRL, I can quickly and inexpensively uncover valuable information that can inform strategy and save my client the need to chase the same material via the formal litigation discovery process.

Arbitration Rules for Outer Space

The Permanent Court of Arbitration ("PCA"), an intergovernmental body based in The Hague and established by treaty over a century ago to provide international dispute resolution services, has recently issued the first set of rules specifically designed to govern arbitrations relating to outer space activities.  The PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the "Optional Space Rules"), formally adopted on December 6, 2011, took three years and over a dozen leading experts in air and space law to develop.  The Space Rules are based on the standard UNCITRAL Arbitration Rules, but contain modifications to meet the particular needs of disputes arising out of outer space activities.

Massachusetts Court Declines to Enter Injunction That Might Impact Proceedings in Foreign Jurisdiction

Discretion, they say, is the better part of valor. So, too, judicial discretion is the better part of equity. Last fall, despite acknowledging "the equitable power and authority" to issue an injunction, the Worcester Superior nonetheless chose to keep its powder dry.

Is It Possible to Recover Attorney's Fees in a Business Dispute?

Your company has been wronged. A vendor failed to deliver as promised causing lost sales. A customer has failed to pay for services rendered. A construction contractor's shoddy workmanship resulted in leaks and damage in your company warehouse. The defendant will not pay up voluntarily, so your business has decided to engage a law firm to file a lawsuit to recover the damages. Can your company recover its attorney's fees and other litigation costs? 

A Treaty for Enforcement of Judgments Abroad

The litigation of international disputes in U.S. Courts is often disfavored for the simple reason that the enforcement of judgments abroad is notoriously difficult. International arbitration is the preferred alternative to litigation because the United States, along with 145 other countries, is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (commonly referred to as the New York Convention), a treaty that provides for the recognition and enforcement of international arbitral awards. Within the next year, the United States is expected to begin implementing a new treaty that will eliminate major obstacles to the enforcement of judgments abroad as to certain civil matters. The implementation of the treaty will give parties to international commercial agreements more flexibility in choosing their preferred method of dispute resolution.

Obtaining Discovery From Massachusetts Witnesses For Use In An Out-of-State Action

It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts.  Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate.  Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet.  A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.

Avoiding the Pitfalls of Stepped Dispute Resolution Clauses

The dispute resolution clause in commercial contracts is very often inserted at the last minute without much attention given to the implications of the particular language contained in the clause.  It is increasingly common to see "stepped" dispute resolution clauses, whereby the parties agree to mediate disputes arising under the contract and, if mediation fails to resolve the dispute, to arbitrate.  The popularity of stepped clauses is due in part to the fact that they make a quick, inexpensive resolution possible through mediation, but provide arbitration as a fallback mechanism for dispute resolution.  While wholly reasonable on their face, stepped dispute resolution clauses can have surprising consequences when a business relationship sours.

Preferred Practices in International Arbitration

Over the last eight months, the School of International Arbitration at Queen Mary, University of London conducted a comprehensive and wide-ranging survey on issues germane to international arbitration - particularly on current and preferred practices in the field. The results of this study unsurprisingly point towards a great preference for autonomy and flexibility in international arbitration.

Read (and Draft) That Forum Selection Clause Carefully!

The Massachusetts Appeals Court has ruled that a party to a business contract could file suit in Massachusetts even though the contract specified that "jurisdiction shall vest in the State of Illinois."  The Appeals Court held that the "jurisdiction shall vest" language is merely permissive and does not require that suit between the contracting parties be brought in Illinois. Boland v. George S. May International Company, No. 11-P-1300, slip op. (Mass.App.Ct. June 7, 2012). 

Dubai Forum Gains Global Momentum

The Dubai International Financial Centre (DFCI) is quietly emerging as a dispute resolution forum of choice in international contracts involving companies based in the Middle East.  The DFCI's location in one of the fastest-growing areas of the Middle East makes it an attractive option for transnational companies doing business in the region.

Foreign Judgments Recognition Law Due for Update

The Commonwealth's policy regarding the recognition and enforcement of money judgments rendered by foreign courts has suffered from lack of clarity, as shown in the current version of the Uniform Foreign Money-Judgments Recognition Act, Mass. Gen. Laws ch. 235, sec. 23, (the "UFMJRA").  A corrective bill pending in the Massachusetts legislature, the Uniform Foreign-Country Money Judgments Recognition Act, if adopted, would promote both predictability and sound public policy with respect to the enforcement of foreign judgments in the Commonwealth. The new foreign judgments recognition legislation was promulgated in 2005 by the Uniform Law Commission and has been adopted by eighteen states.

Lance Armstrong's Legal Battle Questions Fairness of Arbitration

Lance Armstrong's defense against the persistent doping allegations leveled against him, and the athlete's subsequent refusal to participate in the U.S. Anti-Doping Agency's prosecution of several doping-related charges against him, dominated sports headlines this summer. Interestingly, Armstrong's battle against the USADA also cast a spotlight on oft-cited concerns about due process in arbitration.

The International Effort to Regulate and Criminalize Cyberattacks

It was recently revealed that the United States government has been launching cyberattacks on Iran's nuclear enrichment program's computer systems for years, with the purpose of delaying and obstructing the development of what U.S. intelligence believes are nuclear weapons. These attacks, launched with the help of computer experts in Israel, were mostly contained to nuclear facilities. However, in the summer of 2010, one of the "worms" developed by the U.S. and Israel - nicknamed "Stuxnet" - broke through the network and began infecting computers on the worldwide Internet, leading to calls for increased regulation of cyberattacks.

Obtaining Discovery From Massachusetts Witnesses For Use In An Out Of State Action

It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts.  Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate.  Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet.  A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.

Supreme Court Reaffirms FAA's Pro-Arbitration Policy

In a harshly worded per curiam decision, the U.S. Supreme Court recently reaffirmed the broad reach of the Federal Arbitration Act ("FAA") and restated that the FAA "reflects an emphatic federal policy in favor of arbitral dispute resolution." The FAA is the federal statute that regulates the relationship between the judicial process and arbitration.

Split Over Enforceability of Unsigned International Arbitration Agreements

Arbitration clauses in international contracts have become increasingly common.  Many global companies include arbitration provisions in their standard, pre-printed documents, such as estimates, purchase orders, and invoices.  Are these arbitration clauses effective in international commerce?  The answer, surprisingly, is "probably not."

Supreme Court's Decision Partial Victory for Obama

On the last week of the current term, the Supreme Court announced its decision in the watershed case of Arizona v. United States, granting the Obama administration a partial victory over the state of Arizona and its efforts to expand the enforcement of undocumented immigration.

When the Hague Service Convention Fails: Service by Newspaper?

According to a report in the Wall Street Journal, the U.S. Securities and Exchange Commission has received permission from a federal judge to serve summonses on four former Siemens AG executives by publishing the summonses in the International Herald Tribune and emailing the defendants' lawyers in Germany.

'The Cost of Doing Business' in Developing Economies and the FCPA

According to recent reports, lawyers for Wal-Mart have identified China, Brazil, South Africa, India, and Mexico as potential hotbeds for corruption risk. The findings come in the wake of an April New York Times story alleging that Wal-Mart and its largest foreign subsidiary, Wal-Mart de México (or, Walmex), covered up a bribery investigation involving top company executives and millions of dollars in payments to Mexican government officials.

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