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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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B. Protecting Contractual Agreements to Arbitrate

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  1. In last year's Trends Report, we discussed Venture Global Eng., LLC v. Satyam Computer Serv., Ltd., 233 Fed. Appx. 517 (6th Cir. 2007) (enforcing London Ct. of Arb. award and rejecting objection under Indian law and forum non conveniens), and Championsworld v. USSF and Major League Soccer, 487 F.Supp.2d 980 (N.D. Ill. 2007) (enforcing arbitration provision in international soccer regulations; no conflict with US forum selection clause).  Both cases were handled by Proskauer.

  2. The legal and practical aspects of compelling and resisting arbitration, and enforcing or objecting to arbitral awards, are also reviewed at length in the Guide.

  3. Significant developments in 2008 include making it easier for parties to force other litigants out of court and into arbitration. 

  4. A good example is Sourcing Unlimited, Inc. v. Asimco Int'l, Inc., 526 F.3d 38 (1st Cir. 2008).  In Sourcing Unlimited:

(a) A signatory to a written partnership agreement that required international arbitration of commercial disputes brought suit against two non-signatories:  (1) the partner's subsidiary, and (2) an executive of the partner and the subsidiary.  The defendants moved to dismiss the suit, arguing that, under equitable estoppel, the signatory should not be permitted to avoid arbitration when the issues the signatory sought to be litigated were intertwined with the arbitration agreement. 

(b) After the federal District Court of Massachusetts denied the motion to dismiss, the defendants took an interlocutory appeal.  The Court of Appeals for the First Circuit held that a non-signatory to an international arbitration agreement was entitled to take an interlocutory appeal from an order refusing to compel arbitration with a signatory party.  The court explained that international commercial disputes, unlike domestic ones, are subject to the New York Convention and Chapter 2 of the FAA, neither of which precludes a non-signatory from bringing an appeal based on an estoppel theory.  The First Circuit further noted that the national policy favoring arbitration has extra force when international arbitration is at issue, and non-signatories may be bound to arbitrate through doctrines of assumption, agency, estoppel, veil piercing, and incorporation by reference.

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