Archives for June 2022

  • New York offers a great number of arbitrators and advocates with extensive experience in complex commercial matters in both domestic and international settings.
  • New York attorneys are familiar with cross-cultural perspectives and industry practices and customs.
  • Many attorneys, such as André Castaybert of Castaybert PLLC, are bilingual or multilingual. (Mr. Castaybert is fluent in French.)
  • Most influential ADR institutions, such as the International Court of Arbitration, the International Centre for Dispute Resolution, and the CPR International Institute for Conflict Prevention and Resolution, are located in New York.

 

To learn more about international arbitrations in New York, check out the NYIAC website here.

To learn more about Castaybert PLLC’s arbitration practice, click here.

  • New York offers a well-established body of law providing a reliable platform for adjudicating and resolving disputes.
  • In New York, the arbitrators have authority to determine whether there is arbitral jurisdiction, so long as parties showed an intention to resolve matters in arbitration.
  • New York arbitrators have authority to decide on defenses to arbitrability without court interference.
  • Arbitrations in New York are not subject to United States discovery practices, which may be burdensome and time-consuming.
  • The New York State Bar Association (NYSBA) has adopted a policy to conduct international arbitrations in accordance with internationally accepted practices.
  • New York offers many experienced arbitrators of diverse backgrounds, minimizing potential conflicts of interest.
  • New York has state and US federal statutory and common law that favor arbitration as a matter of public policy, eliminating hurdles in enforcing arbitration agreements.

To learn more about international arbitrations in New York, check out the NYIAC website here.

To learn more about Castaybert PLLC’s arbitration practice, click here.

A HIGHLY REGARDED BODY OF CONTRACT LAW

  • New York offers a well-established body of law providing a reliable platform for commercial transactions and adjudicating business disputes.
  • The parties have few limits on structuring their contractual relationships and allocating risks.
  • There is a strong public policy in favor of arbitration, favored by both federal and state courts, eliminating hurdles in enforcing arbitration agreements.
  • Commercial parties may agree to waive certain procedural laws and practices such as a right to a jury trial.
  • New York law has an established principle of a duty of good faith and fair dealing in contractual relationships. The parties’ expectation is an element considered by the courts in making a decision.

 

EXPERIENCED COURTS AND ARBITRATORS

  • New York Judges and arbitrators frequently decide cross-border disputes and have gained broad experience applying New York law in different commercial contexts. The New York State’s Commercial Division and arbitrators are well equipped to handle international and domestic commercial cases.
  • New York also has a wide selection of attorneys and law firms that specialize in resolving commercial disputes that are familiar with cross-cultural perspectives and industry practices and customs.

 

INTERNATIONAL AND INTERSTATE DISPUTES

  • The United States is a party to major international treaties and free trade agreements. New York courts apply widely accepted international arbitration standards in cross-border arbitrations.
  • New York’s courts permit consideration of international customs and practices in cross-border disputes, and legislations tend to implement international trade customs.
  • New York’s public policy and judicial decisions articulate and establish commercial principles and specialized jurisprudence in fields such as banking and finance, cross-border transactions, and long-term exclusive dealings contracts.
  • Foreign corporations have few limits on commencing legal proceedings in New York’s courts, so long as the forum is not considered to be inconvenient for the parties. In cases where the parties have agreed to the application of New York law and where the amount in controversy meets the threshold, New York will provide a forum to the foreign party.

 

REALIABLE AND PROMPT ENFORCEMENT 

  • In accordance with various international conventions to which the United States is a party, commercial arbitral awards issued in any of the countries that ratified the agreement may be enforced in the United States. New York courts enforce foreign arbitral awards under conventions that bind the United States as a party.
  • New York has enacted laws such as a version of the Uniform Foreign Country Money-Judgments Recognition Act requiring New York courts to recognize and enforce monetary judgments of foreign courts with certain exceptions, thereby facilitating the enforcement of foreign judgments.
  • New York arbitral awards and court judgments granting declaratory, injunctive, or compensatory relief are widely enforceable outside the United States. 

 

DAMAGES AND REMEDIES

  • Parties may provide for allocation of attorneys’ fees in connection with the litigation or arbitration of contractual disputes.
  • Court-ordered provisional remedies such as attachment, preliminary injunction, and receivership are available when warranted. New York law provides for attachment and injunction in domestic and international arbitrations.
  • New York courts generally uphold contractual provisions limiting damages or excluding indirect damages.

 

PROTECTION OF COMMERCIAL INTERESTS

  • New York law protects security interests by upholding security agreements against collateral purchasers and creditors.
  • New York recognizes and protects third-party beneficiary rights by allowing third-party claims under specified circumstances.

 

To learn more about how CASTAYBERT PLLC can assist you in arbitrations, click here. 

June 21, 2022 — André Castaybert, principal attorney at Castaybert PLLC, has become a member of the American Foreign Law Association (AFLA). The AFLA is an organization dedicated to “promot[ing] the understanding and application of foreign, comparative and international law.”

“For more than eighty years, AFLA has addressed current issues of importance to those in the legal profession. With the recent globalization of business, trade and finance, an understanding of international law is more critical for more attorneys than at any other time in AFLA’s history. Many AFLA members have studied or practiced law in more than one country and many are fluent in multiple languages. AFLA members include practitioners, judges, legal scholars and legal officers of international organizations including the United Nations.”

You can read more about the AFLA’s history and mission here.

June 15, 2022 —

In a recent issue of Privilege Newsletter, David M. Greenwald and a team of contributors wrote an edifying piece about the strict confines of attorney-client privilege. Greenwald et al. note that in the vast majority of cases, public relations consultants are not protected from scrutiny in their work with a defendant or their counsel.

The only exception to this rule is “if the primary purpose of the engagement is to assist counsel with providing legal advice.” Advice that could be construed as furthering reputational or business interests are not included.

Greenwald et al. explore a range of cases in which the issue of consultants’ communications with defendants are directly contested to provide a clear empirical record for their argument.

To read Greenwald and team’s recent newsletter to get this information directly from the source, click here.

To read about how Castaybert PLLC can assist you with commercial litigation and arbitration, click here.

June 15, 2022 —

Juli Saitz, an expert witness in commercial damages and investigations, wrote an excellent overview of the Lanham Act posted on LinkedIn. Saitz explains that the Lanham Act is a federal law that provides a basis for individuals and companies to sue for false advertising, deceptive branding, and trademark infringement.

First passed in 1946 as the Trademark Act, the law allows an individual or a company to seek redress against a commercial actor who falsely represents an association with a registered trademark. Saitz notes that the Act provides four types of damages: injunctive relief, actual damages, statutory damages, and profits gained at the expense of the plaintiff.

To read Saitz’s post and learn about the intricacies of the Lanham Act in detail, click here.

To find out how Castaybert PLLC can assist you in trademark and intellectual property litigation, click here.

June 15, 2022 —

The Supreme Court leveled a blow to the use of U.S. discovery in private overseas arbitration this week. In a unanimous opinion drafted by Justice Amy Coney Barrett, the Supreme Court ruled that the use of U.S. discovery in international arbitration cases can only extend to “governmental” or “intergovernmental” adjudicative bodies.

The decision hinges on a particular reading of Section 1782 of US code, namely what counts as a “foreign or international tribunal.” The Supreme Court sided against a broader interpretation of the statute, arguing that a “foreign tribunal” refers to a governmental body such as a court, rather than private arbitrators, and that an “international tribunal” refers to a body empowered by two or more governments to adjudicate disputes.

To read more about the decision, including background, facts of the case, and jurisprudential context, click here and here.

To read about how Castaybert PLLC can help you with commercial litigation and arbitration, including international cases, click here.

June 6, 2022

The Department of Justice (DOJ) has recently updated its prosecutorial policy under the Computer Fraud and Abuse Act (CFAA). Enacted in 1984 and repeatedly amended since, the CFAA has produced a circuit split concerning the law’s reach, leading to recent attempts by the judiciary to restrict the open-ended language of the statute.

Definitions

The CFAA provides that a person who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains… information from any protected computer” has violated the law. 18 U.S.C. § 1030(a)(2)(C).

Exceeding authorized access is defined by the statute as accessing “a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6).

Recent Jurisprudence

The DOJ’s new policy reflects both changing jurisprudence and changing technological and business practices.

Heeding the decisions by the Ninth Circuit in hiQ Labs, Inc. v. LinkedIn Corp., 17-16783 (9th Cir. 2019), and the Supreme Court ruling in Van Buren v. United States 19-783, 593 U.S. (June 3, 2021), the new DOJ policy will limit the scope of its investigations into CFAA violations relating to “web scraping” and departing employees accessing sensitive information.

  • In the hiQ case, the Ninth Circuit ruled that hiQ did not violate the CFAA by “scraping” large quantities of publicly available LinkedIn member profile data to create a competing product. LinkedIn argued that hiQ’s continued scraping practice constituted a violation of the CFAA. The Ninth Circuit ruled in hiQ’s favor, and did so again in April 2022.
  • In the Van Buren case, the Supreme Court sided against the government’s argument that a person authorized to access a protected computer system “exceeds” authorization by doing so with improper motives.

Policy shift

The DOJ has enumerated new conditions under which it will prosecute cases under the CFAA, defining what kinds of actions fall under the statute’s language.

  • The DOJ now says it will charge defendants for accessing “without authorization” in cases where the defendant was “not authorized to access the protected computer under any circumstances” and did so knowingly.

It defines “exceeding authorized access” as cases where:

  • a defendant knowingly accesses information from which they are “unconditionally prohibited” in a protected computer that has clear “computational” divisions of its contents.

In either case, DOJ says it will also weigh whether prosecution “would serve the Department’s goals for CFAA enforcement,” which it defines through several criteria, including:

  • the scale of the crime and harm committed, whether the crime impacts broad national or economic interests
  • the deterrent value of an investigation, if any other jurisdiction is likely to hold a defendant accountable if DOJ declines to prosecute
  • whether “the defendant’s conduct consisted of… good-faith security research.”

To read more about the DOJ’s new CFAA enforcement policy, click here for Jeffrey Neuberger’s detailed post in Proskauer’s New Media and Technology Law Blog.

To read the Department of Justice’s press release as well as its stated policy, click here and here.

To read how Castaybert PLLC can assist in employment disputes raising unauthorized access issues under the CFAA and in protecting trade secrets and company confidential information, click here.

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