INTRODUCTION Contributed by: Gary Born and Matteo Angelini, Wilmer Cutler Pickering Hale and Dorr
Morgan v Sundance Morgan v Sundance addressed the important ques - tion of the standard for determining whether a par - ty has waived its right to arbitrate a dispute by first engaging in litigation. Overruling decisions in nine circuits, the Supreme Court unanimously held that there is no requirement for an adverse party to show that it suffered prejudice as a result of the litigation proceedings for a waiver of a right to arbitrate to arise. The decision is important and may have wider ramifications because the Supreme Court reasoned that arbitration-specific procedural rules – such as a prejudice requirement – are incompatible with the FAA, even when those rules purport to support the pro-arbitration policies underlying the FAA. ZF UniCredit Bank GmbH v RusChemAlliance The UK Supreme Court confirmed that English courts have the discretion to issue anti-suit injunctions to support foreign seated arbitrations where English law governs the arbitration agreement. Prior to this deci - sion, the circumstances in which English courts would grant injunctive relief to support foreign-seated arbi - trations were uncertain. This decision is important as it confirms that parties can request an anti-suit injunc - tion from the English courts to enforce an arbitration agreement, even where the arbitration is not seated in England and Wales.
sovereign entity when “an immunity exception applies and service is proper”. In reaching this conclusion, the Supreme Court held that the FSIA does not require a showing of “minimum contacts” with the jurisdiction in which enforcement is being sought to establish per - sonal jurisdiction as set out in the International Shoe v Washington line of cases. The decision reflects the US courts’ long-standing pro-arbitration stance and a reluctance to impose restrictions on enforcement actions. Smith v Spizziri The US Supreme Court held that federal courts must stay, rather than dismiss, claims that are governed by an arbitration agreement. The decision is impor - tant as while a party can immediately appeal an order dismissing an action, there is no immediate right of appeal from an order staying the proceedings. The decision resolves a circuit split over whether Fed - eral Arbitration Act, 9 U.S.C. § 3 requires a court to stay proceedings after compelling arbitration. The Supreme Court’s pro-arbitration decision reasoned that staying, instead of dismissing, lawsuits subject to an arbitration agreement is consistent with the super - visory role that the Federal Arbitration Act envisions for the courts and allows parties to seek relief related to the arbitration without filing a new case.
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