Alternative Dispute Resolution

Six LBKM professionals have been selected to the 2019 New York and Washington, DC Super Lawyers lists - an honor limited to 5 percent of the lawyers in each state. In addition, one LBKM professional has been selected to the 2019 New York Rising Stars list. 

The Second Circuit held that 28 U.S.C. § 1782(a) cannot be used to support petitions for discovery for use in private foreign commercial arbitrations, settling an issue that has lingered unresolved in the circuit since 2004. The new decision, In re Guo, puts the Second Circuit squarely at odds with recent decisions issued by other circuit courts, raising the possibility that the Supreme Court will take up the issue next session to resolve the split. While Guo does not impact the ability of parties to foreign public arbitrations and litigations to take § 1782(a) discovery, for now at least, parties to private foreign arbitrations may have to look to more favorable circuits outside New York for relief.

In these tough times, when clients are looking to protect assets and increase revenue, it is more important than ever to ensure that their arbitral awards are collectible. A truly successful outcome requires the ability to enforce and monetize the award that was won in the arbitration. When faced with a recalcitrant award debtor, it is imperative to think strategically and work closely with counsel and experts to enforce and identify recoverable assets.

Parties employ international arbitration for a number of reasons, including efficiency, neutrality, enhanced control over the process, the expertise of the arbitrators, and the enforceability of the award. However, these advantages may be severely compromised if an arbitration clause is poorly drafted and the parties subsequently become embroiled in a lengthy and costly legal battle over an issue that relates to the existence, validity, effect, construction, or discharge of the agreement to arbitrate. Importantly, “whether the arbitration agreement is valid or not, under the law applicable to it, will have a bearing on whether the dispute can be referred to arbitration, whether court proceedings can be halted, and whether the resulting award is enforceable.”