The U.S. Supreme Court’s June 23, 2023, majority decision in Coinbase, Inc. v. Bielski, Case No. 22-105 requires a stay of district court litigation if a party loses a motion to compel arbitration and pursues the right of interlocutory appeal granted by 9 U.S.C. § 16(a). Section 16(a) is the provision of the Federal Arbitration
Yesterday, the Supreme Court issued its decision in Turkiye Halk Bankasi A.S., aka Halkbank v. United States. This groundbreaking case represents the first known attempt by the United States (or likely any state in modern history) to indict and criminally-prosecute the agency or instrumentality of a foreign state. The Supreme Court held that…
Post Achmea and Komstroy, arbitration provisions in bilateral investment treaties have come into doubt with respect to intra-EU disputes between investors and EU member states. Most recently, the Contracting Parties to the Energy Charter Treaty (ECT) on June 24, 2022, announced their agreement in principle on the modernisation of the ECT. Part of the agreement “confirm[s] that an investor from a Contracting Party that is part of a regional economic integration organisation (REIO), like the EU, cannot bring an Investor-state dispute settlement (ISDS) claim against another Contracting Party member of the same REIO.” The Parties addressed that aspect in order to “finally bring an end to the intra-EU applications under the ECT that are contrary to the EU law and recent judgments by the Court of Justice of the EU.” This post summarizes the background, recent decisions post-Achmea and Komstroy, and the resort to enforcement outside of the EU, particularly the actions pending in the United States.
Continue Reading The Future of Bilateral Investment Treaty Arbitrations Between EU Member Countries
The Supreme Court on May 23, 2022, in its decision in Morgan v. Sundance, Inc., rejected the “arbitration specific waiver rule demanding a showing of prejudice” to the party opposing the petition to enforce the arbitration agreement. That rule had been followed for decades by nine Circuits. Post Morgan, the analysis reverts to the standard contract waiver analysis “focus[ing] on the actions of the person who held the right; … [rather than] the effects of those actions on the opposing party.” Although the case is an employment matter, the new rule applies whenever a party seeks to stay litigation and send the matter to arbitration under Sections 3 and 4 of the Federal Arbitration Act in essentially all commercial litigation contexts.
Continue Reading Supreme Court Rejects Prejudice Element of Waiver Analysis When Enforcing Agreements to Arbitrate