United States - Baker & McKenzie International Arbitration Yearbook: 2010-2011

Ethan Berghoff is a Partner in Baker & McKenzie’s Chicago office. He represents clients in a broad range of international disputes, including breach of contract claims, fraud, and trade secret violations. He has also appeared before arbitration panels around the world, including Taiwan, France, and the United States.

Kate Ó Súilleabháin is an Associate in Baker & McKenzie’s Chicago office.

James Bailey is an Attorney in the Dispute Resolution Group of Baker & McKenzie’s New York office. His practice includes various aspects of arbitration and litigation, including, in particular, antitrust and white collar crime. Mr. Bailey thanks the contributors of the North American International Litigation and Arbitration Newsletter for the case summaries used in this report.

Donald J. Hayden is a Partner in Baker & McKenzie’s Miami office. His practice includes various aspects of arbitration, commercial litigation, and he deals with the interplay of insolvency issues on a regular basis. He leads Baker & McKenzie’s Dispute Resolution Group in Miami and is a member of the Steering Committee of the Firm’s International Arbitration Group.

Heather Ann Frazier is an Associate in Baker & McKenzie’s Miami office. She practices in the Dispute Resolution Practice Group in Miami and her practice includes arbitration and cross border litigation.

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Originally from Baker & McKenzie International Arbitration Yearbook 2010-2011

A. LEGISLATION, TRENDS AND TENDENCIES

A.1 Arbitration Fairness Act of 2009

The major arbitration-related legislation, the Arbitration Fairness Act (“AFA”), has expired. In 2009, both houses of the U.S. Congress introduced legislation to bar certain pre-dispute agreements to arbitrate. The version introduced in the U.S. House of Representatives (H.R.1020) was discharged from the House Judiciary Subcommittee on Commercial and Administrative Law in June 2010 but failed to progress thereafter. The U.S. Senate version (S.931) was referred to the Senate Judiciary Committee in the spring of 2009 but failed to engender a Committee report.

Table of Contents:

A. Legislation, Trends and Tendencies A.1 Arbitration Fairness Act of 2009 A.2 Dodd Frank Act A.3 Defense Appropriations Act B. Cases B.1 Class Action Arbitration B.1.1 Stolt-Nielsen S.A. v. AnimalFeeds International Corp B.1.2 Fensterstock v. Education Finance Partners B.1.3 Omstead v. Dell, Inc. B.1.4 Brewer v. Missouri Title Loans, Inc B.2 “Manifest Disregard” Doctrine as a Viable Ground for Challenging Arbitral Awards B.2.1 Frazier v. CitiFinancial Corporation, LLC B.2.2 T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc. B.2.3 Lagstein v. Certain Underwriters at Lloyd’s B.3 Other Grounds for Vacating Arbitral Awards: Error of State Law B.3.1 Broom v. Morgan Stanley DW Inc B.3.2 Pearson Dental Supplies Inc. v. Superior Court B.3.3 Amerisure Mutual Ins. Co. v. Global Reinsurance Corp. of America B.4 Opting Out of the Federal Arbitration Act’s Grounds for Vacatur B.4.1 Ario v. Underwriting Members of Syndicate 53 at Lloyds B.5 Enforcing Foreign Arbitral Awards under the New York Convention B.5.1 Republic of Argentina v. BG Group PLC B.5.2 Polimaster Ltd. v. RAE Systems, Inc. B.6 Enforcing Agreements to Arbitrate B.6.1 Rent-a-Center, West, Inc. v. Jackson B.6.2 Citibank, N.A. v. Stok & Assocs., P.A. B.6.3 In the Matter of: Mirant Corporation, MC Asset Recovery LLC v. Castex Energy, Inc B.7 Using Section 1782 Discovery in Aid of International Arbitration C. Insolvency Issues in Arbitration C.1 A U.S. Bankruptcy Court’s Discretion to Deny Enforcement of an Arbitration Agreement C.2 Foreign Arbitration and U.S. Bankruptcy Proceedings