Three intense years ago I wrote a column called “Chevron, Yukos, and Two Lifetimes of Litigation.” In a surprise twist in the saga of Chevron Corp., the U.S. Court of Appeals for the Second Circuit had just vacated the preliminary order of U.S. District Judge Lewis Kaplan to block global enforcement of a probably fraudulent $19 billion Ecuadorean judgment. Meanwhile, the European Court of Human Rights had just issued a mixed judgment in Yukos Oil v. Russia, which I regarded as craven for failing to acknowledge Russia’s political seizure of its largest oil company.
In each of the world’s biggest cases, courts were abdicating the decisive role, and in each case, arbitrators were stepping into the breach. The arbitrators seemed more confident in their power, and more willing to assert it.
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