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Gilbert A. Samberg

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[email protected]

+1.212.692.6804

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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

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A federal court in the Northern District of California has adopted the reasoning and conclusion of a recent Sixth Circuit decision in holding that 28 U.S.C. § 1782 applies to private foreign/international arbitrations.  See, HRC-Hainan Holding Company, LLC v. Hu, 19-MC-80277, 2020 U.S. Dist. LEXIS 32125 (N.D. Cal. Feb. 25, 2020).  This adds to the split among federal courts concerning the issue of the applicability of this federal “judicial assistance” statute to private commercial adjudicatory proceedings.

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Are there circumstances in which forum non conveniens is a viable defense in the U.S. to a petition to confirm an arbitration award that is subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”)?  Could or should a U.S. court having jurisdiction abstain from taking up the matter in favor of a foreign court on the grounds that the U.S. court is “inconvenient”?  A federal court in the D.C. Circuit recently reaffirmed that it should not. 
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Battles persist concerning the enforceability of insurance policy arbitration clauses due to the conflict between (a) the U.S. Constitution’s Supremacy Clause (Art. VI, cl. 2), which gives federal laws and international treaties preemptive authority over conflicting State law, and (b) the McCarran-Ferguson Act, which gives State insurance laws reverse-preemptive authority over federal statutes that interfere with State regulation of the insurance business.  A recent federal District Court decision in the Ninth Circuit offers support for the proposition that a key provision of an important arbitration-related treaty -- the New York Convention -- is self-executing, is not reverse-preempted by McCarran-Ferguson, and thus may be a basis, where applicable, for compelling arbitration of insurance coverage disputes. 
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Under the Federal Arbitration Act (“FAA”), “a party may not be compelled . . . to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.”  Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010).  The Eighth Circuit Court of Appeals recently sharpened that rule a bit to require “an affirmative contractual basis” to conclude that the parties agreed to class arbitration.  See Catamaran Corp. v. Towncrest Pharm., 2020 U.S. App. LEXIS 753 (8th Cir. Jan. 10, 2020) at *5.

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As discussed in earlier posts, the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., does not itself provide an independent basis for subject matter jurisdiction over federal court proceedings concerning domestic arbitrations. (In contrast, where the New York Convention applies -- in cases of international or non-domestic arbitrations -- the FAA does itself establish a federal district court’s subject matter jurisdiction over such matters. See FAA § 203, 9 U.S.C. § 203.) Therefore, absent diversity or maritime jurisdiction, a post-award petitioner to confirm or vacate or modify a domestic arbitral award in federal court (under FAA §§ 9, 10, or 11, respectively) must show federal question jurisdiction under 28 U.S.C. § 1331. And, as is often the case regarding jurisdiction issues in the U.S., the federal courts of appeals are split on the analysis that should be made in that regard.

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“Class arbitration” signifies the utilization of the Fed.R.Civ.P. 23 protocol in an arbitration proceeding.  A fundamental question among many concerning the legal viability of “class arbitration” is whether an arbitrator can issue an award that binds a person who is not a party to or otherwise deemed by law bound by the bilateral arbitration agreement upon which the arbitral proceeding and the arbitrator’s authority are founded -- e.g., a non-appearing non-party putative class member.  SCOTUS has signaled, but not held, that that is a dubious proposition.  The Second Circuit recently identified circumstances in which, it opined, the courts may not vacate an arbitral award permitting “class arbitration,” and that award may bind all putative members of a class, including non-appearing non-parties to the controlling arbitration agreement.  See Jock v. Sterling Jewelers, 2019 U.S. App. LEXIS 34205 (2d Cir. Nov. 18, 2019) (“Jock”).  That decision is open to criticism.
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The increasingly popular federal statute concerning cross-border judicial assistance, 28 U.S.C. § 1782, enables a District Court to order a “person” that “resides or is found” within its jurisdiction to produce evidence for use in a proceeding in a foreign or international tribunal.  The Second Circuit recently addressed two questions concerning the application of this unique legislation:  (1) on what bases does a District Court have personal jurisdiction over a non-party for purposes of the statute (how does a court interpret and apply the “resides or is found” criteria in jurisdictional terms); and (2) can the District Court order such a person to produce evidence that it maintains outside of the U.S.? 
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The increasingly popular federal statute concerning cross-border judicial assistance, 28 U.S.C. § 1782, enables a District Court to order a “person” that “resides or is found” within its jurisdiction to produce evidence for use in a proceeding in a foreign or international tribunal.  The Second Circuit recently addressed two questions concerning the application of this unique legislation:  (1) on what bases does a District Court have personal jurisdiction over a non-party for purposes of the statute (how does a court interpret and apply the “resides or is found” criteria in jurisdictional terms); and (2) can the District Court order such a person to produce evidence that it maintains outside of the U.S.?  See In re del Valle Ruiz, 2019 U.S. App. LEXIS 30002 (2d Cir. Oct. 7, 2019).
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The U.S. Supreme Court may at last get the opportunity to determine definitively whether a foreign or international private commercial arbitration proceeding constitutes a “tribunal” under 28 U.S.C. § 1782(a), which affords U.S. discovery “for use in a proceeding in a foreign or international tribunal . . . .”
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What to do with an arbitration award that appears to be fatally internally inconsistent and provides no explanation or reconciliation of the inconsistency?  For lack of something better to say, perhaps tee up the elusive “manifest disregard of the law” doctrine as a basis to seek vacatur of the award.  See, Weiss v. Sallie Mae, Inc., No. 18-2362, 2019 U.S. App. LEXIS 27476 (2d Cir. Sept. 12, 2019).  Or is the award’s defect that it is not adequately “reasoned” and therefore constitutes an imperfect execution of the arbitrator’s powers under FAA § 10(a)(4)?  The Second Circuit recently wrestled with the problem . . . and punted.
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News & Press

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In an article published by Legal Era Magazine [India], Mintz Member Gil Samberg provided insight into the increasingly popular U.S. federal statute concerning cross-border judicial assistance, 28 U.S.C. § 1782, and described a recent Second Circuit decision that expanded the reach of this discovery mechanism to evidence held outside the borders of the United States.
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Mintz Member Gilbert A. Samberg authored two articles, published recently by Bloomberg Law, that addressed a fundamental question concerning the legal viability of “class arbitration”: whether an arbitrator can issue an award that binds a person who is not a party to or otherwise deemed by law bound by the bilateral arbitration agreement upon which the arbitral proceeding and the arbitrator’s authority are founded—e.g., a non-appearing non-party putative class member.
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Mintz Member Gilbert Samberg authored this expert analysis article published by Law360 evaluating a federal statute concerning cross-border judicial assistance, Title 28, Section 1782 of the U.S. Code, which enables a district court to order a person that resides or is found within its jurisdiction to produce evidence for use in a proceeding in a foreign or international tribunal.

What is a Reasoned Award?

October 3, 2019 | The Arbitrator

Mintz Member Gilbert Samberg authored an article published in the September 2019 edition of The Arbitrator, a quarterly newsletter from the Society of Maritime Arbitrators, which explained the significance of a “reasoned award” in arbitration agreements.
In this Law360 expert analysis column, Mintz Member Gilbert Samberg examines the principal details of the Singapore Convention, which aims to make mediated international settlement agreements as easily enforceable as international arbitration awards now are under the New York Convention.
The Journal of Consumer & Commercial Law republished a blog post authored by Mintz Member Gilbert Samberg that addressed interim measure awards in arbitration.
Mintz Member Gilbert Samberg authored an expert analysis article published by Law360 that examined competing legal factors facing insurance arbitration disputes.
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
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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.
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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.
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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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