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Gilbert A. Samberg

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Gil is a litigator with extensive experience in complex international and domestic commercial disputes. Much of his practice is focused on international arbitration and other cross-border alternative dispute resolution (ADR) proceedings. Gil serves companies in diverse sectors, including financial services, capital equipment design and manufacturing, political risk and credit insurance, commodities trading, engineering, and construction.  He also draws on his science background to serve companies in the biotechnology and chemicals sectors as well as other technology-based companies.

Education

  • University of Wisconsin (JD)
  • University of Wisconsin (PhD)
  • University of Michigan (BS)

Experience

  • Representation of a Bermuda-based credit insurance company in connection with U.S. financial company’s lease-sale of helicopters to a Mexican company.
  • Defense of a US financial company in a lender liability suit by a Latin American manufacturer
  • Representation of a US financial company with respect to its claim on defaulted promissory notes against a Mexican steel manufacturer
  • Representation of a US commodities trader in an arbitration in London against an Indian vendee of nonprecious metals
  • Representation of a US commodities trader in an arbitration in Zurich, in respect to its claim regarding losses of nonprecious metals at a Macedonian tolling facility
  • Representation of a Swiss general contractor against a US technology subcontractor, in relation to a subcontract in connection with the construction of an infrastructure project in Yakutsk, the Russian Federation
  • Representation of an Austrian bank in litigation with an Argentinean bank concerning interbank deposits in the context of Argentina’s moratorium on external debt repayments
  • Representation of an Italian manufacturing company in an arbitration in Singapore, in respect to a claim against an Indonesian counter-party
  • Representation of diverse financial companies in arbitration and litigation proceedings concerning losses related to a Eurobond default
  • Representation of a credit insurance company and the negotiation of recoveries for the benefit of several European and US-based insureds with regard to potential losses in Turkey, Mexico, and other countries

Recent Insights

News & Press

Viewpoints

Predictably, the U.S. Supreme Court has ruled in Lamps Plus, Inc. v. Varela, No. 17-988, 2019 U.S. LEXIS 2943 (U.S. April 24, 2019), that, under the Federal Arbitration Act, neither silence nor “ambiguity” in an arbitration agreement regarding the permissibility of class arbitration enables a court to find that the parties agreed to permit class arbitration.  According to the Court, consent is fundamental to arbitration, and such an agreement must be express and unambiguous because it would so drastically alter the nature of the proceeding from the simple “bilateral” process that was envisioned in the FAA.
Can an arbitrator require an arbitrating party to post collateral prior to a hearing on the merits of the substantive claim(s) as security with respect to payment of a possible final award against that party?  And can such an interim award then be confirmed and enforced by a Federal court?  “Yes” and “yes”.  First, absent an agreed prohibition, it is usually within an arbitrator’s authority to take steps to insure that an eventual merits award will not be rendered meaningless, and requiring the posting of security to insure the payment of such an award is an unremarkable, if not well known, form of interim relief that an arbitrator can grant.  Furthermore, an interim award of this sort is considered final for purposes of judicial review, including confirmation.

What is a “Reasoned” Arbitration Award?

April 8, 2019 | Blog | By Gilbert Samberg

It is not unusual for an arbitration agreement to require, expressly or impliedly, a “reasoned award.”  Indeed, that is very likely.  And if the parties have stipulated that any award is to be “reasoned,” an arbitrator who fails to satisfy that requirement arguably is exceeding his/her powers by rendering an award in a non-compliant form, thereby making it vulnerable to vacatur under FAA § 10(a)(4).  So what is a “reasoned” award?
You are in federal court facing a motion to compel arbitration, and you reach for your well-worn copy of the Federal Rules of Civil Procedure in order to confirm how to go about your next step -- demanding a jury trial for example.  Better reach for your perhaps less well-worn copy of the Federal Arbitration Act (“FAA”) first.  Fed. R. Civ. P. 81 tells you that procedures set out in the FAA supersede the corresponding Federal Rules.  And then the courts weigh in and it gets complicated.
Viewpoint General

“Just What Was Needed”: Another Way to Waive a Right to Arbitrate

February 25, 2019 | Blog | By Gilbert Samberg

Want to give up a contractual right to arbitrate?  Easy.  Don’t seek to enforce it.  For example, just litigate for awhile and don’t mention your arbitration clause.  The court has no obligation sua sponte to raise or enforce your contractual right if you choose not to.
Viewpoint General

How to Enforce an Arbitration Subpoena: Jurisdiction and Venue Basics

February 11, 2019 | Blog | By Gilbert Samberg

The Federal Arbitration Act (“FAA”) §7 (9 U.S.C. §7) enables arbitrators to “summon … any person to attend before them or any of them as a witness and in a proper case to bring with him or them any [document] which may be deemed material as evidence in the case.”
Viewpoint General
Gateway issues of arbitrability are presumptively for a court, rather than an arbitrator, to decide in the first instance. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). But arbitration is a creature of contract, and the parties to an arbitration agreement ultimately have the power to determine who is to decide such issues. Hence, that presumption may be rebutted by the parties’ clear and unmistakable manifestation of their mutual intention that an arbitral tribunal should have the exclusive authority to decide arbitrability issues in the first instance. Id.; Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 77, 83 (2002). While the federal courts have been identifying examples of the practical application of those principles, many questions are still unanswered and some have barely been posed.
Viewpoint General
The U.S. Supreme Court has decided that the Federal Arbitration Act (“FAA”) requirement that courts enforce arbitration agreements according to their terms includes the parties’ agreement to have an arbitrator decide “not only the merits of a particular dispute, but also ‘gateway’ questions of ‘arbitrability’....”  Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272 (U.S. Jan. 8, 2019).  (As is customary, the rookie Justice (Kavanaugh, J.) delivered the Court’s unanimous opinion.)  This judgment, issued little more than two months after oral argument, shatters the “wholly groundless” doctrine, which purported to enable federal courts to adjudicate gateway arbitrability issues notwithstanding the parties’ clear and unmistakable delegation of such issues to an arbitral tribunal, if the court decided that the argument for arbitrability was “wholly groundless.”  (The Courts of Appeals were split on the viability of that doctrinal exception.)
Viewpoint General
Since arbitration is a process of dispute resolution in accordance with a private agreement, the question of consolidation of arbitral proceedings ought to be determined in the same manner as other procedural issues.  In short, no agreement to permit consolidation, no consolidation.
Viewpoint General
The Hong Kong International Arbitration Centre (“HKIAC”) has promulgated a new set of Administered Arbitration Rules (“AAR”), effective November 1, 2018.  Among those rules are Articles 27-30 concerning the HKIAC’s powers to join additional parties in an arbitration, to consolidate arbitrations, to consolidate related claims in a single arbitration, and to coordinate related unconsolidated arbitral proceedings.  Those powers, which the HKIAC can exercise without the consents of the parties to any bilateral arbitration agreement, are not trivial; among other things, they arguably institutionalize pathways to collective or opt-in class arbitration proceedings.

News & Press

Mintz Member Gilbert Samberg has authored this article addressing jury demand concerning issues under the FAA relating to arbitrability.
Gil Samberg, a New York-based Mintz litigator, authored this Law360 "Expert Analysis" column discussing new rules from the Hong Kong International Arbitration Center which provide noteworthy institutional means for joinder of parties and consolidation of proceedings so as to effectuate collective or opt-in class arbitration proceedings.

New York Litigation Member Gil Samberg authored this Law360 column taking an in-depth look at whether the Eleventh Circuit’s recent decision in JPay v. Kobel correctly addressed the issue of “clear and unmistakable” consent when it comes to the delegation of class arbitrability. Gil further addresses another issue relating to the decision with respect to many class arbitration-related matters
This Law360 Expert Analysis column, authored by New York Litigation Member Gil Samberg, notes that the U.S. Supreme Court will decide next term whether an arbitration agreement that says nothing about class arbitration can be interpreted to constitute consent by the parties. Gil’s column states that it is currently unclear if the Supreme Court will specify who can actually decide that question.
This feature article discusses U.S. Supreme Court nominee D.C. Circuit Judge Brett Kavanaugh's track record on international arbitration. New York Litigation Member Gil Samberg is among those sources quoted in the piece.
Validity, enforceability and scope of an arbitration agreement are "gateway" arbitration issues that can be delegated to an arbitrator if the agreement clearly and unmistakably indicates the parties’ intention to do so. New York Litigation Member Gil Samberg authored this “Expert Analysis” column discussing the questions that arise when one of the named arbitration parties is not a signatory of the agreement.
This column is authored by New York Litigation Member Gil Samberg. In the piece Gil discusses why parties should consider incentivizing an adversary with a “sealed settlement offer,” which could eventually make a settlement offeree pay a heavy price in such costs for miscalculation or intransigence.
Gil Samberg, a Member in Mintz’s New York office, published an article in Law360 on February 15th on the recent efforts made by Second Circuit courts to begin grappling with issues surrounding the viability of class arbitration in U.S. jurisprudence, something the Supreme Court has yet to do.

Hot-Tubbing of Experts in Arbitration

August 28, 2017 | Expert Witnesses

Gil Samberg, a Member of the Litigation Practice in Mintz’s New York office, authored an article on how the “hot-tubbing” of experts – “a procedure for the contemporaneous presentation of competing expert oral testimony” – is now a fairly standard consideration in arbitrations.
Gil Samberg, a Member of the Litigation Practice in Mintz’s New York office, authored a Law360 article in conjunction with a recent series of questions asking whether class arbitration is ultimately viable in U.S. court proceedings.
Gil Samberg, a Member of the Litigation Practice in Mintz’s New York office, authored a Law360 article as part of a series asking whether ‘class arbitration’ is ultimately viable, an issue that has yet to be addressed by the U.S. Supreme Court.
This article notes that it's common for consumer and employment contracts to have arbitration clauses that require any dispute to be resolved in binding arbitration. It further discusses how not all such clauses explicitly ban arbitration on a classwide basis.
Mintz Litigation Member Gilbert Samberg authors this column asking the question if “class arbitration” is viable given the essential nature of arbitration, or is it an oxymoron.
New York Litigation Member Gil Samberg discusses the applications and ramifications of 28 USC § 1782 after a decision in Second Circuit Courts, holding that the London Maritime Arbitration Association is a “foreign tribunal” within that law.

Rules of the Road for Using Experts in International Arbitration

December 21, 2016 | http://www.corpcounsel.com/home/id=1202775280225/Rules-of-the-Road-for-Using-Experts-in-International-Arbitration?mcode=1202617073467&curindex=4 Corporate Counsel

Gil Samberg, a Mintz Member, authored an article in Corporate Counsel discussing the complexity of acquiring expert evidence in arbitration disputes. Gil addresses how one must plan accordingly for that expense and difficulty.
Gil Samberg, a Member of Mintz's Litigation Practice, published an article in Law360 providing “practical advice regarding factors to be accommodated in fashioning multistep alternative dispute resolution (ADR) provisions.”
Gil Samberg, a Member of the Mintz Litigation Practice, authored an article in Law360 discussing “hot-tubbing” – a procedure for the joint presentation of expert testimony. Gil weighs in on the pros and cons of this procedure in international arbitrations.

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