Manifest Disregard and Other Standards of Review

As mentioned in prior posts, SILC has a particular soft spot for international arbitration. Not only is the procedure fascinating, it is increasingly becoming the primary way to resolve international disputes. As part of our interest in the area, we frequently publish articles on the topic, and the journal Lima Arbitration recently published an article from the office on a topic of general interest to the international arbitration community–extra-statutory standards of review.

As described in the article, extra-statutory standards of review are all of those grounds for review of an arbitration award that fall outside the terms of the applicable statute. In the United States, these grounds of review appear almost exclusively in the interpretation of chapter one of the Federal Arbitration Act, which applies largely in cases of domestic arbitration. The extra-statutory standards of review focus largely on “manifest disregard of the law,” a phrase deriving from an opinion of the Supreme Court in the 1950′s and growing to mean that a court can vacate an arbitral award when the arbitrator knew of the applicable law and chose not to apply it. Different circuits have approached extra-statutory standard of review in many ways, using terms such as “arbitrary and capricious,” “completely irrational,” and “fundamentally irrational.” But after the Supreme Court’s in Hall Street Assoc. v. Mattel in 2008, many courts have started questioning extra-statutory standards of review. Our article reviews the history of these standards of review, looks at the current state of the law, and puts forward an approach for courts to look at challenges to arbitration awards.



Top Ten Tips for Brazilian Negotiations

There’s something about top ten lists that engages the reader but still provides helpful information. As part of the Association of Corporate Counsel’s ongoing “top ten” series, Mauricio and I teamed up with Christiana Abbade do Couto, General Counsel for Iron Mountain do Brasil, to create our own list of Top Ten Tips when Negotiating Contracts in Brazil.

Our top ten list contains a range of helpful nuggests, with something for the novice as well as seasoned investor. One of the most interesting topics from recent news events is the influence of FCPA and SOX. From the article, our guide was the following:

“If you have to comply with FCPA and SOX and will contract with Brazilian company, it is best to research and learn about the company quite deeply before contracting with it. Not all Brazilian companies are in compliance with this legislation, and most of Brazilian companies have not heard about these laws. It is important to train your Brazilian counterparty and audit prior contracting.”

This is just the tip of the iceberg, but there is much more lurking underneath. In the coming days, we are going to look a bit more deeply at this issue, including how it can impact both the dispute resolution and transactional spheres of lawyering. What would you include in a top ten list that we failed to mention? Did we miss something?

By Miami SEO and Web Design Company: Target Wide