As discussed in an August 31, 2022 K&H Arbitration Blog post, David Gallo, along with Glenn Hendrix of Arnall Golden Gregory LLP, authored and submitted an amicus brief on behalf of the Atlanta International Arbitration Society (AltAS), urging the Eleventh Circuit Court of Appeals to deny en banc reconsideration of Corporación AIC, SA v. Hidroelectrica Santa Rita S.A., 20-13039, and uphold Circuit precedent barring courts from using domestic vacatur standards to vacate international arbitration awards rendered in the U.S. In May of 2022, a three-judge Eleventh Circuit panel in Corporación reluctantly held that the Federal Arbitration Act’s Chapter 1 domestic standards for vacatur (9 U.S.C. § 10) do not apply to an international arbitration award issued in the U.S., finding itself bound by the Circuit’s earlier Industrial Risk decision that held the same. But the panel signaled that en banc reconsideration may be appropriate to determine whether the Eleventh Circuit is out of step with decisions from other Circuits and the U.S. Supreme Court. The losing party accepted the invitation and moved for en banc reconsideration. On October 5, 2022, the Eleventh Circuit granted en banc reconsideration and scheduled oral argument for February 14, 2023.
On January 11, 2023, AtlAS re-submitted a modified version of its earlier amicus brief, this time for the Court’s consideration of the merits of the case. In support of Appellee, AtlAS argued that the relevant federal statutes, as well as leading commentary and business considerations, compel the conclusion that Industrial Risk was correctly decided and that international arbitration awards issued the U.S. may only be vacated on the grounds set forth in Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), which has been incorporated into U.S. law at Chapter 2 of the Federal Arbitration Act. For this reason, AtlAS asked the Court to leave Industrial Risk in place and affirm Corporación.
At oral argument on February 14, 2023, the Judges of the Eleventh Circuit asked questions about the parties’ written arguments, the text and structure of Chapters 1 and 2 of the Federal Arbitration Act, the interpretation and application of the New York Convention in other countries, and the potential practical consequences of changing settled Circuit precedent. Based on the tenor of the Court’s questions, it appears more likely than not that the Eleventh Circuit will overturn Corporación and Industrial Risk, and join many other Circuits in holding that the Federal Arbitration Act’s Chapter 1 domestic standards for vacatur apply to an international arbitration award issued in the U.S.
About the Arbitration Blog
This blog is a user-friendly resource for businesses and individuals who find themselves faced with issues involving arbitration. Perhaps you want to include an arbitration clause in your contract, or you are being asked to sign a contract with an arbitration clause. Maybe a dispute has arisen and you want to begin arbitration proceedings but you are not sure whether your arbitration clause covers the dispute (hint: it usually does). Perhaps you received a subpoena for documents in connection with an arbitration in which you are not otherwise involved. This blog provides you with answers to simple questions and will help you ask the right questions when confronted with more complex issues.
Among other topics, we cover how to draft an arbitration clause and what to expect in arbitration proceedings. We discuss the differences and similarities among arbitrations governed by Georgia law, federal law, and international law. We explore—in layman’s terms, whenever possible—the Georgia Arbitration Code, the Federal Arbitration Act, transnational law, and decisions from Georgia’s state courts, Georgia’s federal district courts, the U.S. Court of Appeals for the Eleventh Circuit, the U.S. Supreme Court, and foreign tribunals. We provide toolkits and checklists you can use to navigate everyday arbitration issues. We discuss the various contexts and industries in which we have handled arbitration issues for our clients, including:
- Breach of Contract
- Closely Held Company Shareholder Disputes
- Earn Out Disputes
- Executive Separation/Severance
- Franchise Disputes
- Mergers and Acquisitions
- Real Estate
- Trusts and Estates
- Vendor/Supplier Disputes
- Trusts and Estates
We are available and eager to discuss your arbitration issues with you.
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