International Arbitration - Part 1 - Chapter 8 - AAA Yearbook on Arbitration and the Law - 24th Edition

STEPHEN K. HUBER is Professor Emeritus at the University of Houston Law Center, and has served as a visiting professor at the University of Texas, Rice University (Political Science), Pepperdine Law School (Dispute Resolution Program), and the University of East Africa (Dar es Salaam, Tanzania). Mr. Huber is a member of the State Bar of Texas, and the editor of Alternative Resolutions, the quarterly journal of the Dispute Resolution Section. He is the author of numerous publications relating to arbitration.

BEN H. SHEPPARD, JR. is a Distinguished Lecturer and Director of the A.A. White Dispute Resolution Center at the University of Houston Law Center. From 1969 through 2005 he practiced at Vinson & Elkins L.L.P. where he was a Partner and Co-Chair of the firm's international dispute resolution practice. He was chair of AAA/ICDR task force that promulgated the 2006 amendment to the ICDR International Arbitration Rules that established a pre-arbitral emergency arbitrator procedure. He was the author of the report and recommendation to the ABA House of Delegates in support of the 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. He chaired one of the two working groups that promulgated the CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration. He is a past chair of the Disputes Division of the ABA Section of International Law and for five years served as editor-in-chief of The International Arbitration News. He is a member of the American Law Institute and a Fellow of the College of Commercial Arbitrators.

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Originally from: AAA Yearbook on Arbitration and the Law - 24th Edition

CHAPTER 8
INTERNATIONAL ARBITRATION

8.01 Applicability of the New York Convention Infuturia Global Ltd. v. Sequus Pharmaceuticals, Inc., 631 F.3d 1133 (9th Cir. 2011)

1. A district court has removal jurisdiction, when an arbitration agreement or award falling under the Convention “relates to” the subject matter of an action.
2. An arbitral award “relates to” the subject matter of an action whenever it could conceivably affect the outcome of the plaintiff’s suit.

Infuturia (British) entered into a license agreement with Yissum (Israeli) for technology it had developed with Professor Yechezkel Barenholz. In exchange for royalties, the company was to acquire exclusive worldwide rights to develop, market, and use certain Yissum patents. The agreement called for arbitration of any dispute “connected in any way to the implementation of the agreement.” In January 1995, Sequus (American) entered into a licensing agreement with Yissum that gave it rights to some liposome technology owed by Yissum. Infuturia then sued Sequus and Barenholz in a California state court for tortuous interference with its license. Yissum was not named in the suit. In the lawsuit, Infuturia claimed that the named parties had interfered with its license “by encouraging Yissum to divulge and license technology already licensed to Infuturia.”

Table of Contents:

CHAPTER 8 INTERNATIONAL ARBITRATION

8.01 Applicability of the New York Convention
- Infuturia Global Ltd. v. Sequus Pharmaceuticals, Inc., 631 F.3d 1133 (9th Cir. 2011)
- Safety Nat'l Casualty Corp v. Certain Underwriters at Lloyd's, London, 587 F.3d 714 (5th Cir. 2009)
- Rogers v. Royal Caribbean Cruise Line, 547 F.3d 1148 (9th Cir. 2008)
- Republic of Argentina v. BG Group PLC, 764 F.Supp.2d 21 (D.D.C. 2011)

8.02 Enforcement of the Arbitration Agreement
- Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257 (11th Cir. 2011)
- Answers in Genesis v. Creation Ministries Int'l, Ltd., 556 F.3d 459 (6th Cir. 2009)
- Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009).
- Continental Transfert Technique Limited v. Federal Government of Nigeria, 800 F.Supp.2d 161, (D.D.C. 2011)
- In re Application of Chevron Corp., 762 F. Supp. 2d 242 (D. Mass. 2010)
- Constellation Energy Commodities Group Inc. v. Transfield ER Cape Ltd, 801 F. Supp. 2d 211 (S.D.N.Y. 2011)

8.03 Waiver of Removal Rights Under the New York Convention
- ENSCO Int'l, Inc. v. Certain Underwriters at Lloyd's, 579 F.3d 442 (5th Cir. 2009)

8.04 Court Assisted Evidence Gatherings Under 28 U.S.C. § 1782
- El Paso Corp. v. La Comision Ejecutiva Hidroelectricia del Rio Lempa, 341 Fed. Appx. 31 (5th Cir. Aug. 6, 2009)
- Chevron Corp., 2010 WL 4880378, ---F.Supp.2d (D. Md. 2010)

8.05 Injunctions Against Arbitration
- Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010)

8.06 Procedural Barriers against Enforcement of Foreign Arbitral Awards
- Frontera Resources Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393 (2d Cir. 2009)

8.07 Enforcement of Foreign Awards Vacated at the Seat of Arbitration
- Termorio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C. Cir. 2007)