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American Review of International Arbitration - ARIA - Vol. 15 No. 2 2004
American Review of International Arbitration - ARIA - (U.S. Price)
American Review of International Arbitration - ARIA (International Price)
ARIA Vol. 15 No. 2 2004
Following my critical comments on the decision of the Appellate Division of
the First Department in Wien & Malkin LLP v. Helmsley-Spear, Inc.,1 the
Appellate Division has granted leave to appeal.2 It is now up to the Court of
Appeals to set matters right. As my Comment demonstrated, most significant
issues are ready to be judicially settled. And the New York Court of Appeals has
a unique opportunity to bring order to a very muddled area of arbitration law.
Regrettably, the submissions made by the parties fail, in large measure, to seize
upon that opportunity and to address these problems squarely and effectively.
Instead, they focus primarily on the extent to which the arbitrators could, or did in
fact, disregard the relevant New York law and the relevant agreements, both
questions that, upon proper analysis, are irrelevant. I therefore take the
opportunity to urge the Court to focus upon the issues that are of primary
importance in settling this murky area of the law.
II. ONLY DISREGARD OF MANDATORY LAW IS A
GROUND FOR ATTACK ON AN ARBITRAL AWARD
The Court of Appeals is offered a unique opportunity to make clear that
manifest disregard of the law is an available ground for vacatur or non-recognition
of an arbitral award only when the law disregarded is of a mandatory nature. It is
in a case involving mandatory law, the Federal Securities Act, that the U.S.
Supreme Court, in cursory dictum, first suggested that manifest disregard of the
Hans Smit - Stanley H. Fuld Professor of Law and Director, Center for International Arbitration
and Litigation Law, Columbia University