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2016-2024 Arbitration Decisions

A collection of the most recent US international arbitration decisions is available here. Decisions can be quickly retrieved by using the filter tools below.

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  • Vitol, Inc. v. Copape Produtos de Petróleo LTDA, No. 22-CV-10569-JPC (S.D.N.Y. June 13, 2024)
    06/13/2024

    Court granted stay pending arbitration and denied respondent’s motion to dismiss in accordance with the Supreme Court’s reasoning in Smith v. Spizzirri.

  • Mullen Technologies, Inc. v. Gem Global Yield LLC, No. 24-CV-01120-KPF (S.D.N.Y. May 31, 2024)
    05/31/2024

    Court denied petitioners’ application for a pre-motion conference and respondents’ application to lift stay on related rescission action.  Court set briefing schedule for summary judgment on confirmation or vacatur of parties’ arbitration awards.

  • Smith v. Spizzirri, No. 22-1218 (U.S. May 16, 2024)
    05/16/2024

    Supreme Court reversed and remanded the district court’s dismissal of case determined to be arbitrable.  Supreme Court found that where a party requests a stay to litigation pending arbitration, section 3 of the FAA requires the district court to issue the stay and the court lacks jurisdiction to dismiss the suit.

  • In re Ex Parte Application Pursuant to Section 204 Of The Federal Arbitration Act and A.R.S. § 12-1507 For An Order To Provide Documents And/Or Appear Remotely And Testify In A Foreign Arbitration Hearing, 24-MC-00015-DLR (D. Ariz. May 9, 2024)
    05/09/2024

    Court granted application pursuant to Section 204 of the FAA and issued a subpoena to produce insurance policy coverage documents and/or offer remote testimony at an upcoming arbitration in Canada.  In granting the application, court held that the subpoenaed parties resided within the district of the court, the petitioner was an “interested person” as a party to the arbitration proceedings, and the arbitration constituted a “foreign tribunal” for purposes of the statute because it is the process provided by Canadian law to resolve the claims at issue.

  • Eaton v. Ascent Resources-Utica, LLC, No. 19-CV-03412-EAS-CMV (S.D. Ohio Apr. 4, 2024)
    04/04/2024

    Court granted defendant’s motion to modify the class definition to exclude members of a certified class of property owners who had binding arbitration provisions in their lease agreements.  Court reasoned that defendants did not waive their right to arbitrate based on their participation in the litigation because evidence regarding the arbitration agreements of non-class representatives was not available before the class certification stage, and the existence of arbitration agreements between class members and defendant had the potential to destroy the typicality and adequacy requirements of Federal Rule of Civil Procedure 23(a).

  • Thales Avionics, Inc. v. L3 Technologies, Inc., No. 24-CV-00112-JGK-RFT (S.D.N.Y. Feb. 27, 2024)
    02/27/2024

    Court granted preliminary injunction in aid of arbitration to enjoin defendant from selling stake in parties’ joint venture, finding that plaintiff demonstrated sufficiently serious questions going to the merits of its claim, irreparable harm, and that the balance of hardships weighed decidedly in its favor.
     

  • The Resource Group International Limited v. Chishti, No. 23-286 (2d Cir. Jan. 22, 2024)
    01/22/2024

    Court of Appeals vacated and remanded the district court’s order finding it relied on an erroneous view of the law in concluding that plaintiffs failed to demonstrate a likelihood of success on the merits of their claims and irreparable harm absent a preliminary injunction.  Court of Appeals found (1) district court erroneously concluded that a later-executed agreement that did not specifically mention arbitration likely did not supersede the arbitration agreement, and, as a result, failed to determine the scope of the agreement or otherwise identify which claims are arbitrable in the first instance; and (2) district court erred in concluding that being forced to arbitrate an inarbitrable claim cannot constitute irreparable harm.

  • Ten G, LLC v. Certain Underwriters at Lloyd’s London, No. 22-CV-04426-WBV-MBN (E.D. La. Nov. 30, 2023)
    11/30/2023

    Court rejected plaintiff’s motion for certification of interlocutory appeal to review prior decision to compel arbitration pursuant to the New York Convention.  Court found that the question of whether a dispute falls within the scope of an arbitration agreement is not a “controlling question of law” for the purposes of certification under § 1292(b).  Court decided plaintiff also failed to demonstrate substantial grounds for difference of opinion as to the controlling question of law.

  • City Beverages LLC v. Crown Imports LLC, No. 3:22-CV-05756-DGE (W.D. Wash. Nov. 9, 2023)
    11/09/2023

    Court denied motion for a temporary restraining order preventing transfer of distribution rights until after compensation for the distribution rights had been determined by agreement or arbitration where petitioner failed to establish the likelihood of irreparable damage and that the injunction was in the public interest.

  • EDE LLC v. Utopia Music AG, No. 23-CV-08015-CM (S.D.N.Y. Oct. 10, 2023)
    10/10/2023

    Court found it proper to stay the action pending arbitration even though plaintiffs did not move to stay, because plaintiff’s motion for attachment in aid of arbitration had the same effect as a motion to stay arbitration in that it requires the court maintain jurisdiction of the matter pending a decision on the attachment motion.

  • In re: Application of Caterpillar Credito, No. 1:22-MC-00412-GBW (D. Del. Sep. 28, 2023)
    09/28/2023

    Court granted in part an application pursuant to 28 USC § 1782 for leave to serve subpoenas on credit card companies seeking records for use in an action pending in Curaçao court where the statutory factors were met and the discretionary factors weighed in favor of granting discovery.  Court limited petitioner’s use of the records to the Curaçao proceeding and prohibited their use in an ongoing ICC arbitration.  Court denied in part the application where the time requested for the subpoenas was overly broad.

  • In re Application of Alpene, Ltd. for an order directing discovery from McGaul pursuant to 28 USC § 1782, No. 1:21-MC-02547-MKB-RML (E.D.N.Y. Aug. 15, 2023)
    08/15/2023

    Court adopted magistrate judge’s order quashing and granting a protective order as to petitioner’s discovery requests for use in an ICSID arbitration pursuant to 28 USC § 1782.  Court found that the ICSID arbitration panel did not qualify as a foreign or international tribunal within the meaning of § 1782, so petitioner was not entitled to seek discovery.

  • Shenzhen Zongheng Domain Network Co., Ltd. v. Amazon.com Services LLC, No. 1:23-CV-03334-JLR (S.D.N.Y. Aug. 4, 2023)
    08/04/2023

    Court denied petitioner’s motion to remand the case to state court, finding that the court had subject matter jurisdiction pursuant to 9 USC § 203, because petitioner is a Chinese company with its principal place of business in China, and thus the dispute is not “entirely domestic.”

  • Pereira v. Nucor Corporation, No. 3:23-MC-00024-FDW-SCR (W.D.N.C. June 22, 2023)
    06/22/2023

    Court denied petitioner’s 28 USC § 1782 discovery application, finding that, pursuant to the parties’ binding arbitration, the evidence requested would be used in a private foreign arbitration, not a before a “foreign tribunal” as required by § 1782.  Court also considered discretionary factors in denying petitioner’s application, including that the party from whom discovery was being sought is a party to the proceeding and petitioner was attempting to collect pretrial discovery that would be barred under Brazilian law.

  • Yegiazaryan v. Smagin, No. 22-381 (S. Ct. June 22, 2023)
    06/22/2023

    The Supreme Court found that foreign defendant’s alleged injury—his inability to collect judgment on his arbitration award—was sufficient to establish a domestic injury as required for private civil RICO suits.  Supreme Court held that “a plaintiff has alleged a domestic injury for purposes of [RICO] when the circumstances surrounding the injury indicate it arose in the United States,” and that defendant’s allegation “that he was injured in California because his ability to enforce a California judgment in California against a California resident was impaired by racketeering activity that largely occurred in or was directed from and targeted at California” was sufficient to state a domestic injury.

  • OnPointe Community Care LV LLC v. Charter Health Holdings, Inc., No. 2:22-CV-01235-GMN-DJA (D. Nev. June 20, 2023)
    06/20/2023

    Court deferred ruling on defendant’s motion to enforce review and dispute procedure, finding that it would be premature to decide plaintiff’s condition precedent argument because defendant seemingly agreed to resolve the issue by completing the necessary conditions precedent to utilize the contracted arbitration provision.

  • Phoenix East II Association, Inc. v. Certain Underwriters at Llyod’s, No. 22-00436-CG-N (S.D. Ala. Feb. 13, 2023)
    02/13/2023

    Court granted motion to compel arbitration finding the arbitration agreement which provided for the application of New York law did not conflict with an Alabama state law that held all insurance contracts executed within the state be governed by Alabama law.

  • In Re Application of Alpene Ltd., No. 21-MC-02547-MKB-RML (E.D.N.Y. Feb. 3, 2022)
    02/03/2023

    Court stayed motion to vacate order granting discovery in aid of foreign proceeding pursuant to 28 USC. § 1782 pending Supreme Court’s decision on whether arbitrations conducted pursuant to bilateral investment treaties qualify as international tribunals under 28 USC. § 1782.

  • APG Worldwide Ltd v. Passfeed Inc., No. 1:22-CV-03078-MKV (S.D.N.Y. Dec. 29, 2022)
    12/29/2022

    Court granted motions to compel arbitration and to stay litigation action pending arbitration, finding there was no genuine dispute between the parties regarding either motion.

  • In Re Application of Webuild S.P.A. and Sacyr S.A., No. 22-MC-00140-LAK (S.D.N.Y. Dec. 19, 2022)
    12/19/2022

    Court granted motions to vacate order granting ex parte application for discovery pursuant to 28 USC. § 1782 and quash subpoena, finding that petitioner failed to satisfy the statutory requirements of 28 USC. § 1782 because ICSID is not a foreign or international tribunal within the meaning of the statute.

  • The Federal Republic of Nigeria v. VR Advisory Services, Ltd., No. 21-MC-00007-JGK-VF (S.D.N.Y. Dec. 12, 2022)
    12/12/2022

    Court ordered respondents to produce documents from a shareholder arbitration pursuant to 28 USC § 1782, finding that petitioner had demonstrated the documents are relevant to the issue of the fraudulent arbitration award and that petitioner was not required to exhaust opportunities for discovery before the foreign tribunal.

  • Canobinoti, LLC v. Woods, No. 20-CV-25081-MGC (S.D. Fla. July 26, 2022)
    12/07/2022

    Court found a provision designating the International Arbitration Center as the arbitral forum was not integral to the agreement as it does not “pervade” the agreement.  Accordingly, the court recommends the appointment of a substitute arbitrator pursuant to § 5 of the FAA.

  • In re Application of Alpene, Ltd., No. 21-MC-02547-MKB-RML (E.D.N.Y. Oct. 27, 2022)
    11/03/2022

    Court granted respondent’s motion to vacate and quash petitioner’s document and deposition subpoenas issued pursuant to 28 USC § 1782 for use in an ICSID arbitration.  Using the Supreme Court’s reasoning from AlixPartners, Court found that the ICSID arbitration panel did not qualify as a “foreign or international tribunal” under 28 USC § 1782, because there was insufficient evidence that the treaty parties at issue indicated an intent to imbue the ICSID arbitration panel with governmental authority.

  • In the Matter of the Arbitration between Energía Costa Azul, S. DE R.L. DE C.V. v. Shell México Gas Natural S. DE R.L. DE C.V., No. 22-CV-06988 (S.D.N.Y. Sept. 6, 2022)
    09/06/2022

    Court granted motion for ex parte attachment in aid of arbitration pursuant to Federal Rule of Civil Procedure 64, finding that petitioner had demonstrated that ex parte relief was necessary due to the possibility that respondent, a non-domiciliary entity, would remove or dissipate assets if notice of the request for attachment were given.

  • TIG Insurance Company v. Republic of Argentina, No. 18-MC-00129-DLF (D.D.C. Aug. 23, 2022)
    08/23/2022

    Court found that Argentina had not impliedly waived its sovereign immunity because transferring assets and liabilities of Caja (a state-owned corporation) and providing that the government would handle legal claims and arbitration was not enough to meet the “subjective intent” standard for a foreign sovereign to waive immunity.

  • In the Matter of the Application of New Pax Martime Ltd., No. 22-MC-197 (S.D.N.Y. Aug. 22, 2022)
    08/22/2022

    Court granted application under 28 U.S.C. § 1782 to take discovery in the United States for use in a reasonably contemplated proceeding to enforce an arbitration award before a foreign tribunal.

  • Iraq Telecom Ltd. v. IBL Bank S.A.L., No. 22-540-CV (2d Cir. August 5, 2022)
    08/05/2022

    Court affirmed the district court’s decision to consider extraordinary circumstances, including the impact of attachment on the Lebanese economy, when deciding whether petitioner established the statutory requirements for attachment in aid of arbitration.  However, the district court abused its discretion in reducing the attachment amount in three respects: failing to consider alternative attachment amounts, concluding that the greater culpability of one of the wrongdoers was a reason to reduce the attachment, and applying a “conceivable” rather than “probable” legal standard in assessing petitioner’s probability of success.

  • Jones Day v. Orrick, Herrington & Sutcliffe, LLP, No. 21-16642 (9th Cir. Aug. 1, 2022)
    08/01/2022

    Court reversed district court’s order denying Jones Day’s petitions to compel Orrick, Herrington & Sutcliffe, LLP, to comply with an arbitrator’s subpoena requiring two Orrick partners to appear at a hearing in an international arbitration conducted pursuant to Chapter 2 of the FAA.  Court held that the district court had original jurisdiction to enforce the arbitral summonses because the proceedings related to an arbitration agreement falling under the New York Convention.

  • HBT Bio Corp. v. Emcure Pharmaceuticals, LTD, No. 22-CV-00334-JLR (W.D. Wash. Jul. 29, 2022)
    07/29/2022

    Court denied defendant’s motion to dismiss without prejudice in a case alleging “theft of trade secrets” in connection with the development of an mRNA COVID-19 vaccine.  Court found that the record provided an insufficient basis for the court to determine personal jurisdiction, so denied the motion and ordered the parties to conduct jurisdictional discovery.

  • Terra Towers Corp. and TBS Management, S.A. v. Gelber Schachter & Greenberg, P.A., No. 22-CV-06150-VEC (S.D. Fla. July 18, 2022)
    07/18/2022

    Court denied plaintiff’s motion for remand and granted defendants’ motion to transfer venue to the Southern District of New York, finding that the previous removal to this court was proper under the New York Convention and that transfer was warranted because the case had strong ties to S.D.N.Y. such as ongoing related arbitration and litigation in New York.

  • Preble-Rish Haiti, S.A. v. BB Energy USA, LLC, No. 22-20021 (5th Cir. July 14, 2022)
    07/14/2022

    Court reversed and vacated writ of attachment because lower court erroneously determined that defendant, a Haitian government agency, had explicitly waived its sovereign immunity from prejudgment attachment.  Regardless of whether a contract contains language waiving sovereign immunity from suit generally, waiver of prejudgment attachment must be express, clear, and unambiguous.

  • Consol Pennsylvania Coal Company, LLC v. Mahalaxmi Continental Limited, No. 22-CV-00781-WSH (W.D. Pa. June 14, 2022)
    06/14/2022

    Court granted plaintiff’s motion for a temporary restraining order (“TRO”) enjoining defendants from pursuing and the AAA from further processing defendants’ demand for arbitration.  Court found that plaintiff had established more than a reasonable probability of success on the merits that it never agreed to submit to arbitration, that a TRO was necessary to prevent immediate and irreparable harm, that the balance of harms clearly and strongly weighed in favor of plaintiff, and that granting of a TRO was in the public interest.

  • ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401 (S. Ct. June 13, 2022)
    06/13/2022

    Supreme Court, in a consolidated appeal, reversed the district court’s order in ZF Automotive denying the motion to quash a 28 USC §1782 application and reversed the judgment of the court of appeals in AlixPartners that affirmed the district court’s order granting a discovery request.  Supreme Court unanimously held that neither the tribunal under the auspices of the German Institution of Arbitration, nor the ad hoc tribunal under the UNCITRAL arbitration rules, fell within the scope of the term “tribunal” in 28 USC §1782(a).  Court held that only a governmental or intergovernmental adjudicative body constituted a “foreign or international tribunal,” reasoning that although a “tribunal” need not be a formal court, attached to the modifiers “foreign or international,” the phrase is best understood to refer to an adjudicative body that exercises governmental authority.

  • Iraq Telecom Limited v. IBL Bank S.A.L., No. 21-CV-10940-DLC (S.D.N.Y. Mar. 16, 2022)
    03/16/2022

    Court confirmed, in part, the order granting $100 million attachment in aid of arbitration pursuant to CPLR 7502(c) to the extent of $3 million and granted cross-motion to vacate such order as to the remaining $97 million.  Court found that petitioner showed that it was likely to succeed on request to confirm $3 million arbitral award but failed to show that it was likely to receive arbitral award of $97 million in separate arbitration.

  • Arabian Motors Group W.L.L. v. Ford Motor Company, No. 20-2152 (6th Cir. Dec. 3, 2021)
    12/03/2021

    Court of appeals reversed district court’s decision to dismiss an action without prejudice rather than stay it.  Court of appeals held that § 3 of the FAA conclusively establishes defendant’s right to stay an action pending arbitration of the remaining arbitrable claims, and that the FAA’s language that a district court “shall on application of one of the parties stay the trial of the action” conveys a mandatory obligation.

  • Ukraine v. Pao Taftnet, No. 21-MC-00376-JGK-SN (S.D.N.Y. Nov. 22, 2021)
    11/22/2021

    Court affirmed magistrate judge’s order denying Plaintiff’s motion to quash non-party subpoenas regarding post-judgment discovery following Plaintiff’s avoidance of payment of an arbitral award confirmed by the United States District Court for the District of Columbia.  Court overruled all five of Plaintiff’s objections, finding in particular that the magistrate judge properly applied precedent regarding a foreign sovereign’s standing to dispute the relevance of non-party subpoenas and did not avoid or discount Ukraine’s interests or treat those interests as equivalent to individual or corporate interests.

  • CPR Management S.A. v. Devon Park Bioventures L.P., Nos. 20-2343 20-2344 (3d Cir. Nov. 22, 2021)
    11/22/2021

    Court affirmed the confirmation of an arbitration award by the district court.  Court found that the district court properly struck Defendant-appellant’s application for interpleader because it was procedurally not permitted under the FAA as a pleading, not a motion; that the district court properly confirmed the arbitration award because none of the four grounds for vacating an award applied; and that the court properly awarded prejudgment interest because Defendant-appellant’s argument that prejudgment interest should be eliminated failed to meet one of the three grounds for the modification of an arbitration award as the “promotion of justice” alone is insufficient.  Court also admonished Defendant-appellant for prematurely quitting the arbitration.

  • CMB Infrastructure Group IX, LP v. Cobra Energy Investment Finance, Incorporated, No. 21-CV-00214-JAD-DJA (D. Nev. Nov. 15, 2021)
    11/15/2021

    Court granted motion to compel arbitration for certain claims, finding that the arbitration clause remained active after termination of the agreement and that both signatory and non-signatory defendants could compel arbitration.

  • Zaklady Farmaceutyczne Polpharma S.A. v. Kartha Pharmaceuticals, Inc., No. 21-CV-00129-MOC-DCK (W.D.N.C. Nov. 8, 2021)
    11/08/2021

    Court granted motion to amend protective order to aid in a related Swiss arbitration.  Court found that allowing the Swiss arbitration counsel to access and use discovery that had been exchanged by the parties in U.S. litigation would reduce costs for all involved.

  • In Re Ex Parte Application of Iraq Telecom Limited For An Order To Obtain Discovery, No. 19-MC-00175-RBS (M.D. Pa. Nov. 5, 2021)
    11/05/2021

    Court granted motion in part and denied in part a motion to compel production of documents in a limited discovery for use in a foreign proceeding.  Court held that all of the documents listed in the privilege log, except for three, were not protected by privilege and should be produced.

  • Preble-Rish Haiti, S.A. v. BB Energy USA, LLC, No. 21-20534 (5th Cir. Nov. 4, 2021)
    11/04/2021

    Court denied motion to stay discovery order in garnishment case involving a sovereign immunity defense.  Instead, court ordered the district court to limit discovery “only to verify allegations of specific fact crucial to an immunity determination.”

  • Cota v. Art Brand Studios LLC, No. 21-CV-01519-LJL (S.D.N.Y. October 15, 2021)
    10/15/2021

    Court denied motion to compel arbitration.  Court found defendant eliminated its ability to arbitrate by allowing the arbitration to terminate after an arbitration panel gave it the option to cover the arbitration costs of both parties or cease the proceedings and it chose the latter.

  • Vale S.A. v. BSG Resources Limited, No. 19-CV-03619-VSB-RWL (S.D.N.Y. October 15, 2021)
    10/15/2021

    Court compelled alter ego of defendant to comply with discovery requests in aid of execution of plaintiff’s judgment arising from the Court’s enforcement of a London Court of International Arbitration award.

  • Preble-Rish Haiti, S.A. v. Republic of Haiti et al., No. 21-CV-04960-PKC (S.D.N.Y. Sept. 3, 2021)
    09/03/2021

    Court granted non-party central bank’s motion to intervene in action seeking a maritime attachment in aid of arbitration against foreign state.  Court vacated the attachment, finding that plaintiff did not rebut the presumption that the central bank’s account was immune from attachment under Section 1611(b)(1) of the Foreign Sovereign Immunities Act.  Court additionally granted central bank’s motion to quash subpoena and protective order.

  • Preble-Rish Haiti, S.A. v. Republic of Haiti, No. 4:21-CV-01953 (S.D. Tex. Sep. 3, 2021)
    09/03/2021

    Court granted motion to stay attachment proceedings, pending a decision on plaintiff’s action to confirm and enforce the partial final arbitral award in New York federal district court.

  • Luxshare, Ltd. v. ZF Automotive US, Inc., No. 2:20-MC-51245-LJM-APP (E.D. Mich. Aug. 17, 2021)
    08/17/2021

    Court denied respondent’s motion to stay the case pending appeal, finding that respondent had not demonstrated any irreparable harm, that respondent had little likelihood of success considering that Sixth Circuit precedent permits discovery under § 1782 for private arbitration, that petitioner could suffer harm if discovery is stayed, and that the public interest weighed against a stay.  Court granted petitioner’s motion to compel discovery under § 1782 and ordered respondent to comply with the subpoenas.

  • CW Baice Limited v. The Wisdomobile Group Limited, No. 5:20-CV-03526-LHK (N.D. Cal. July 20, 2021)
    07/20/2021

    Court denied defendants’ motion to dissolve preliminary injunction on the dissipation of defendants’ assets pending an arbitration before the HKIAC, finding that a Hong Kong court’s decision to dissolve a similar injunction did not change the balance of equities which led the U.S. court to issue the injunction in question.

  • In re Ex Parte Application of Eni S.p.A. for an Order Pursuant to 28 U.S.C. § 1782 for Granting Leave to Obtain Discovery for Use in Foreign Proceedings, No. 1:20-MC-00334-MN (D. Del. July 15, 2021)
    07/15/2021

    Court denied respondents’ motion for re-argument and reconsideration, finding that respondents did not provide a compelling reason for reconsideration of its decision to grant discovery for use in the Italian criminal proceeding and the ICSID proceeding pursuant to 28 USC § 1782.  Court also rejected respondents’ request to narrow the subpoenas to apply only to the respondent with a financial interest in the proceedings, concluding that respondents should have raised the argument earlier.  Court denied petitioner’s motion for sanctions, finding that petitioner was not entitled to costs of responding to the motion.

  • The Application of the Fund for Protection of Investor Rights in Foreign States Pursuant to 28 U.S.C. § 1782 for an Order granting Leave to Obtain Discovery for use in a Foreign Proceeding, No. 20-2653 (2d Cir. July 15, 2021)
    07/15/2021

    Court of appeals affirmed the District Court’s order granting petitioners’ application pursuant to 28 USC § 1782 to obtain discovery from a third party for use in an arbitration proceeding between plaintiff and the Republic of Lithuania under the bilateral investment treaty between Lithuania and Russia.  Court of appeals found that the proceeding was before a foreign or international tribunal because the arbitration was between an investor and foreign state party to a bilateral investment treaty and the tribunal was established by that treaty; that plaintiff qualified as an interested person under § 1782 because it is a party to the arbitration; and that the district court did not abuse its discretion in weighing the relevant factors.

  • International Energy Ventures Management L.L.C. v. United Energy Group Limited, No. 20-20221 (4th Cir. May 28, 2021)
    05/28/2021

    Court reversed the district court’s finding that International Energy Ventures Management’s (“IEVM”) pursuit of litigation did not prevent it from returning to arbitration, after the dispute bounced between three courts and two arbitrations over the course of seven years.  Court found that two arbitrators exceeded their powers in violation of the FAA when they determined that IEVM waived its right to arbitrate through litigation-conduct, as that determination is presumptively a judicial matter, and the parties failed to contract around the general rule that courts resolve litigation-conduct waivers. Court held that IEVM substantially invoked the judicial process to United Energy Group’s detriment.

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