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Arbitrating Against Non-Signatories
Arbitration is a creature of contract, made between consenting parties. As such, it is generally thought that those who have not signed an arbitration agreement cannot be compelled to arbitrate. While that is often the case, like most legal rules, it has its exceptions. The U.S. Court of Appeals for the Second Circuit has recognized five of them: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel. See, Thomson-CSF, S.A. v. American Arbitration Assoc., 64 F.3d 773, 776 (2d Cir. 1995).
Courts have cited each of these common law principles as supporting arbitral jurisdiction over a non-signatory to an arbitration clause in a contract signed by other parties. (Thomson-CSF, although decided under non-state specific, “ordinary principles of contract and agency” (id. at 776), is broadly cited by New York state and federal courts, which will typically apply New York law to questions of arbitrability in New York-venued arbitrations. See, Gary Born, Enforcement and Interpretation of International Arbitration Agreements Basic Principles: in International Commercial Arbitration: Commentary and Materials, 2d Edition, at 111 (Kluwer Law International 2001) (“[M]any authorities apply to substantive law of the arbitral situs to arbitration agreements.”).)
Incorporation by Reference
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?