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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.


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

Recent Insights

News & Press


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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. 
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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.
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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.
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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.
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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?
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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.
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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.
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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?
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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.
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“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.
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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.
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.
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.
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.