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Gilbert A. Samberg

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+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

Viewpoint General
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.? 
Viewpoint General
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).
Viewpoint General
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 . . . .”
Viewpoint General
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.
Viewpoint General
Heads up, sureties!  (And all other contracting parties.)  Incorporation by reference of the terms of one agreement into another is a classical common law basis for binding the incorporating parties to the incorporated terms.  As a performance bond surety recently learned, the rule is little different when the terms of a commercial agreement containing an arbitration clause are incorporated by reference into the terms of a bond.  The surety may become subject to the arbitration agreement as well. 
Viewpoint General
The United States joined 45 other countries on August 7, 2019 as the initial signatories of the UN Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”).  Other notable vanguard signatories included China, India, South Korea, and of course Singapore.  The aim of this Convention is to make mediated international settlement agreements as easily enforceable as international arbitration awards now are under the New York Convention.  But is it likely to succeed?  We think it could ... to a degree.
Add the Fifth Circuit to the growing list of Federal Circuit Courts that have decided that “class arbitrability” is a gateway question for a court, rather than an arbitrator, to decide in the first instance, absent the parties’ “clear and unmistakable” manifestation of an agreement otherwise.  See, 20/20 Communications, Inc. v. Crawford, 2019 U.S. App. LEXIS 21765 (5th Cir. Jul. 22, 2019).  (It thus joined the 3rd, 4th, 6th, 7th, 8th, 9th and 11th Circuits in this regard.  The U.S. Supreme Court (“SCOTUS”) has noted, but not decided, the issue.  See, Lamps Plus, Inc. v. Varela, 139 S.Ct. 1407, 1417n.4 (2019).)  However, while that decision may have been correct, the court’s ultimate holding in this particular case was arguably not.
Viewpoint General
Federal law nowadays certainly favors enforcement of agreements to arbitrate.  But generally applicable state contract law determines contract formation – i.e., whether such an agreement has been made.  Contract formation generally requires three simple elements:  offer, acceptance, and consideration.  Posting an arbitration section in your employee handbook may put an employee on notice of a company policy or “offer,” of which the employee could be said to be “generally aware,” but it might not, without more, establish that there is an agreement to arbitrate.  There must be evidence of the employee’s acceptance.
The United States Constitution, a U.S. treaty, two federal statutes, a state statute, and a commercial contract walk into a bar.  The federal statutes are arguing.  The Constitution, the treaty, one of the federal statutes, and the state statute are arguing.  The treaty and the other federal statute are arguing.  And the contract and the state statute are arguing.  In what order does the bartender serve them?  Which one does the bartender serve first?
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.

News & Press

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
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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