Originally from Dispute Resolution Journal

LICENSING

Appealability of Interim Relief Order

The 2nd Circuit held that a district court’s denial of a motion to dismiss a request for interim relief pending international arbitration was not equivalent to a motion to compel arbitration under Section 16 of the Federal Arbitration Act. Therefore, the decision below was not an appealable interlocutory order.

The licensing agreement between Wabtec Corp. and Faiveley Transport Malmo contained a “competent jurisdiction” clause calling for disputes to be resolved in arbitration in Stockholm “without recourse to the courts.” Faiveley terminated the agreement with Wabtec. But according to Faiveley, Wabtec continued to use its technology. So Faiveley commenced an arbitration against Wabtec. It also commenced an action in federal court in New York seeking a preliminary injunction enjoining Wabtec’s further use of Wabtec’s technology. Faiveley also sought expedited discovery in aid of the pending arbitration.

6Wabtec moved to dismiss theses motions but the court denied that motion. The district court held that when a contract is silent as to the availability of preliminary injunctions pending arbitration, “a district court has the power to provide such relief.” Wabtec appealed and Faiveley cross-moved to dismiss the appeal for lack of appellate jurisdiction.