Jurisdiction: United States

Section 7 of the FAA: Compelling Evidence from the Recalcitrant Non-party Witness

Section 7 of the Federal Arbitration Act (“FAA”) grants arbitrators the authority to ‎‎“summon in writing any person to attend before them . . . as a witness and in a proper case to ‎bring with him or them any book, record, document, or paper which may be deemed material as ‎evidence in the case.”‎1 It is generally accepted that § 7 does not empower an arbitrator to issue ‎pre-hearing discovery summonses seeking to compel the depositions of non-parties or to compel ‎pre-hearing document discovery.‎

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U.S. Supreme Court holds New York Convention does not conflict with domestic estoppel ‎doctrines

The international arbitration community has watched the case of GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC with great interest. At issue is whether a nonsignatory to an arbitration agreement can rely on the state-law doctrine of equitable estoppel to compel arbitration of an international dispute.

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When Confidentiality and 28 U.S.C. § 1782 Collide: In re Application of Servotronics, Inc.

In the context of an arbitration, “confidentiality” typically refers to the parties’ obligation ‎not to disclose information concerning the arbitration to third parties. As demonstrated by a ‎recent arbitral tribunal ruling, however, the concept is not absolute and may not be used to shield ‎relevant information from being disclosed to a U.S. court addressing a 28 U.S.C. § 1782 ‎application.

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Fifth Circuit Upholds Use of “Snap Removal”

On 7 April 2020, the Fifth Circuit Court of Appeals handed down its decision in Texas Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., No. 18-31184, 2020 WL 1682777 (5th Cir. Apr. 7, 2020). Much of the commentary regarding the decision in Texas Brine has revolved around the Fifth Circuit’s reaffirmation that the Federal Arbitration Act provides the exclusive remedy for challenging an arbitration award based on an arbitrator’s failure to disclose potential conflicts of interest, thereby barring a party’s claim for damages and equitable relief based on an arbitrator’s alleged fraudulent conduct.

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‎The FAA and the Bankruptcy Code: A Delicate Balance

With the specter of COVID-19 and its concomitant impact on the world economy, the US is poised to see an increase in bankruptcy filings during 2020 across any number of business sectors.  A debtor’s bankruptcy calls into question whether an arbitration agreement executed by the debtor continues to be enforceable.  The resolution of that question is factually intensive and involves the interplay between the Federal Arbitration Act (“FAA”) and the Bankruptcy Code.

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