Equitable Estoppel Research Articles

Originalism Meets International Arbitration: The US Supreme Court’s Interpretation of the New York Convention

The subjection of non-signatories to arbitration agreements under the New York Convention is one of the fundamental issues of international arbitration, raising questions that touch upon the very concept of an arbitration agreement laid down in Article II. In the case of GE Energy Power Conversion v. Outokumpu, the US Supreme Court took a stand on that matter. It held that the New York Convention does not conflict with domestic law doctrines such as equitable estoppel which may bind third parties to arbitration agreements signed by others. Engaging only in an originalist interpretation of the Convention, the judgment fails to explore the normative depth of the problem. GE Energy Power Conversion v. Outokumpu, US Supreme Court, New York Convention, Non-signatory, Third Party, Arbitration Agreement, Party Autonomy, Form or Writing Requirement, Equitable Estoppel

Outokumpu and the Rights of "Non-Signatories"

The fraught question of the rights and liabilities of non-signatories in arbitration continues to exercise courts and commentators. The Supreme Court, as part of its endless fascination with the arbitral process, recently made its own contribution in the Outokumpu case. Outokumpu seemed to raise a wide variety of issues---the signature requirement of the New York Convention, the rights of third parties under the Convention, the relevance of equitable estoppel, and the applicable law that governs that issue. In a dispiritingly unadventuresome opinion, a unanimous Court decided few of these---yet what the Court gives us is clearly in line with current jurisprudence and with the ALI's recent Restatement project on international commercial arbitration, This short piece was written as a contribution to a festschrift in honor of Professor George Bermann---who, in addition to his extensive body of work, has been the guiding force behind the Restatement and so instrumental in bringing it to fruition.

Is Biopharma Ready for the Standard Wars?

This symposium contribution sheds new light on Momenta v. Amphastar, a case in which issues relating to standardization and patent disclosure that have previously been observed in the semiconductor, computing, and telecommunications sectors found their way into a dispute between two biosimilar manufacturers. One such manufacturer, Momenta, participated in the development of a standard for testing the purity of generic enoxaparin under the auspices of the United States Pharmacopeial Convention but failed to disclose that it had applied for a patent on the testing method. When Momenta later sued Amphastar for patent infringement by using the method in accordance with the FDA’s approval of its own generic version of enoxaparin, Amphastar raised waiver and equitable estoppel as defenses, then brought antitrust claims against Momenta and its distribution partner Sandoz. Amphastar prevailed at the district court, obtaining a ruling that Momenta’s patent was unenforceable. This case demonstrates that issues surrounding the acquisition and disclosure of patents on standardized technologies have more salience in the biopharma sector than commonly believed. As such, standards organizations operating in this sector should ensure that their policies and procedures are robust enough to delineate clearly the obligations of participants with respect to patents covering standardized technologies, and organizations that participate in biopharma standards-development should heed the valuable lessons offered by more than three decades of litigation and policy making in the technology sector.

Don’t 'Estop' Me Now: Estoppel, Government Contract Law and Sovereign Immunity if Congress Retroactively Repeals Public Service Loan Forgiveness

This Article considers whether federal student loan borrowers can bring successful legal challenges if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. It addresses whether borrowers at litigation could rely on analogies to the promissory estoppel doctrine or assert equitable estoppel claims to challenge the repeal. In doing so, the Article explores the intersection of estoppel and government contract law with sovereign immunity theories in a way that has never been done before. This topic has been given very little attention in prior literature, so I aim to present its legal issues in a clear way while paying tribute to its nuance.The Article addresses the hurdles of sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article similarly contends that most if not all equitable estoppel claims would likely fail before a court. The Article then offers an alternative proposal to Congress, which would avoid the issues that would arise at litigation, while solving the problems associated with the program and protecting the most vulnerable members of society negatively impacted by a repeal.

The over- and under-enforcement of anti-corruption law in investment disputes and international development

Since the early 2000s, anti-corruption enforcement has become increasingly entangled with international investment. This entanglement has created a paradox: the simultaneous over- and under-enforcement of anti-corruption law. Over-enforcement occurs when authorities from multiple jurisdictions subject companies to duplicative enforcement actions and disproportionate penalties for the same underlying conduct. Under-enforcement occurs when local courts and arbitral tribunals insulate the demand side of corruption from liability by failing to exercise jurisdiction over corruption-tainted disputes. Both over- and under-enforcement result in part from unilateralism, whereby States pursue their own interests at the expense of international legal objectives. The over- and under-enforcement of international anti-corruption law undermines anti-corruption law itself, makes investment riskier in developing States and inhibits developmental objectives. To correct for over-enforcement, this article proposes formal commitments from States that the State with the strongest jurisdictional ties to a corruption scandal retains investigative priority. To correct for under-enforcement, this article suggests that local courts and arbitral tribunals invoke equitable estoppel to accept jurisdiction over corruption-tainted disputes and use a contributory-fault approach to hold both the supply side and the demand side of corruption accountable. These solutions would likely prove efficacious in agreements between States and contracts between States and potential investors. Ultimately, this article frames anti-corruption enforcement trends in the context of unilateralism and discusses practicable solutions for a more proportional anti-corruption law regime.

Revocation of Exemption Upheld, Not Barred by Equitable Estoppel Doctrine

Bruce R. Hopkins' Nonprofit CounselVolume 37, Issue 11 p. 6-6 Articles Revocation of Exemption Upheld, Not Barred by Equitable Estoppel Doctrine First published: 12 October 2020 https://doi.org/10.1002/npc.30790Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat No abstract is available for this article. Volume37, Issue11November 2020Pages 6-6 RelatedInformation

The Form and Substance of Equitable Estoppel

Taxonomic uncertainty has long been a feature of equitable estoppel. While the unifiers had their heyday in a period roughly centred on the 1980s, the splitters are now in the ascendant. At the forefront of the movement is Ben McFarlane, who has argued that what is known as ‘equitable estoppel’ in fact consists of five separate principles. This paper questions that growing consensus. It considers the case for the unity of equitable estoppel by identifying what might be understood to be its core principle, and then considering a series of questions that can help us to understand whether that core principle can be said to underlie ‘equitable estoppel’ as a whole. A central plank in the case for the disunity of equitable estoppel is the claim that a promise is required for some categories of case but not others. While there is some strength in the argument that a promise should be required, numerous leading cases arising in different contexts make it clear that responsibility for detrimental reliance on an assumption as to one’s future conduct does not depend on the making of a promise or commitment.

U.S. Supreme Court Holds that the New York Convention Does Not Displace Domestic Doctrines Permitting Nonsignatories to Enforce Arbitration Agreements

On June 1, 2020, the Supreme Court unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. The Court interpreted the text of the Convention as being silent on the issue of enforcement by nonsignatories and thus leaving this issue to domestic law. The Court noted that some postratification practice (including the recommendation of a UN commission) and the views of the executive branch were consistent with its conclusion, but it did not determine how much weight should be accorded to these sources.

Nationalist International Commercial Arbitration?: The Supreme Court and State Law Equitable Estoppel in GE v/ Outokumpu

A unanimous Supreme Court decided on June 1, 2020 in an opinion written by Justice Clarence Thomas the question of whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958 (hereinafter the “New York Convention”) conflicts with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories concluding that it does not. As the 11th Circuit Court of Appeals concluded that the New York Convention prohibits enforcement by nonsignatories, the Court reversed the 11th Circuit Court of Appeals and remanded the case for further proceedings. In that regard the questions of whether GE could enforce the arbitration clauses under principles of equitable estoppel or which body of law governs that determination were left to the 11th Circuit to decide in the remand. In a concurrence Justice Sonia Sotomayor - while agreeing with the court that the New York Convention does not categorically prohibit the application of domestic doctrines, such as equitable estoppel, that may permit nonsignatories to enforce arbitration agreements - noted that the application of such domestic doctrines is subject to an important limitation: any applicable domestic doctrines must be rooted in the principle of consent to arbitrate. From the point of view of separability doctrine, contract interpretation, treaty law it possibly brings into the arena of international commercial arbitration a particularly nationalist form of American approach to international trade. If that is the case, the New York Convention may be so twisted by domestic FAA Chapter 1 jurisprudence, that its efficacy for international contracts with American parties may be compromised. So we may have to again open the door to another international commercial arbitration convention being prepared.

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims and Undermine International Development

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to corruption. Together, these distorted incentives hinder developmental goals and undermine the fight against corruption. To correct these problems, this Note proposes a framework to guide arbitral tribunals when faced with a corruption-tainted dispute. Specifically, this Note argues that when both parties participate in corruption, arbitral tribunals should invoke equitable estoppel to accept jurisdiction over the dispute. When considering the corruption claims, investment tribunals should use a contributory-fault approach that evaluates each party’s role in the corrupt act to determine the final award. This framework not only helps align the investment-arbitration and anticorruption regimes but also advances developmental objectives.

An Action on the Equities: Re-Characterizing Bhasin as Equitable Estoppel

In its 2014 decision of Bhasin v. Hrynew, the Supreme Court of Canada recognized that a duty of honest performance exists between contracting parties. Academics, practitioners, and courts across the nation have since contemplated the meaning and role of such a duty. This article looks to Australia’s doctrine of “equitable estoppel,” the equivalent of Canada’s “promissory estoppel,” to explain the outcome of the Supreme Court’s decision. It thereby posits that the duty of honest performance can be re-characterized and interpreted as equitable estoppel. In that manner, the article provides a perspective that clarifies the newly proclaimed duty, and potentially answers several of the outstanding questions regarding the Supreme Court’s conclusions in Bhasin.

Non-signatories in Arbitration Proceedings With Focus on a Third Party Beneficiary and Equitable Estoppel Doctrines in the United States

Non-signatories in Arbitration Proceedings With Focus on a Third Party Beneficiary and Equitable Estoppel Doctrines in the United States

Patent Deception in Standard Setting: The Case for Antitrust Policy

Many patent applications are rejected upon initial submission, but they are almost never rejected with absolute finality. Further, subsequent to filing its original application a patent applicant might wish to write an application with broader or somewhat different claims, or perhaps add claims that were not made in the original application. Or it may wish to rewrite claims that had been rejected in the original application. A patent is an application for additional claims made on a patent that was previously applied for. Under generally accepted patent practices in the United States, when a subsequent continuation or divisional application is granted the subsequent patent relates back to the date of the original patent application, and will typically retain the original application's priority over rival filings. While continuations are an accepted and increasingly comon part of the process under which patents are granted, they can also bring anticompetitive abuse. In particular, the continuation process makes it possible for a patentee to write updated claims designed to exclude a rival's invention that has been placed on the market subsequent to the date of the original application. Nevertheless, there is probably little room for application of the antitrust laws, given that the Federal Circuit has expressly approved the use of continuation and divisional applications to write updated claims on a competitor's existing products or technology. The notice and publication provisions are part of the law as well. While we believe such an approach to the giving of notice deters rather than promotes innovation, the fact is that conduct approved by law cannot form the basis of an antitrust claim when the patentee later files an infringement action based on such an after-acquired right. This paper focuses on the implications of two Federal Circuit Court decisions involving patent holdup in the standard setting process. While the Rambus decision can be defended as a matter of antitrust policy, it exposes serious deficiencies in the patent continuation process that can legally permit anticompetitive holdup to occur. Broadcom, by contrast, is arguably not about antitrust policy at all, but rather the law of contract or equitable estoppel.

Equitable Estoppel in 'Subject to Contract' Negotiations

Waltons Stores (Interstate) Ltd v Maher was a watershed in the development of promissory estoppel in Australian law, recognising its reach to a representation of future intention from one party to another without the need for a pre-existing legal relationship between them. However, the scope for an equitable estoppel to arise from pre-contractual negotiations which do not result in a formal contract being executed, as in that case, remains unclear in certain respects. In particular, it is not clear whether or not a plaintiff seeking to establish an estoppel needs to have held a belief that the defendant was already bound by, or bound to enter into, the contract. On another view, it may be sufficient for the plaintiff to demonstrate that he or she was induced to assume that the contract would eventuate and then relied to his or her detriment upon that assumption, even if the plaintiff knew that the defendant had a right to withdraw from the negotiations. This article explores this uncertainty in Australian law about the nature of the assumption required to found an estoppel arising from pre-contractual negotiations which are said to be `subject to contract.

Equity in Australian estate litigation

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.

Back Door Arbitration: Why Allowing Nonsignatories to Unfairly Utilize Arbitration Clauses May Violate the Seventh Amendment

A brief look into the propriety of equitable estoppel in the arbitration context, considering the contractual principles of waiver and mutual asset and the Seventh Amendment's right to trial by jury in civil cases.

What's Special About Land? The Relationship Between Promissory and Proprietary Estoppel

It will be argued in this paper that there is no good reason to limit the offensive effect of equitable estoppel to its proprietary form, which is narrowly focused on property rights in land. This paper elucidates the differences between promissory and proprietary estoppel, and ask if the differences in the elements of each doctrine can explain why only proprietary estoppel enjoys offensive effect.

Abandonment and the Law of Contract

Abandonment and the Law of Contract

Doctrine of Proprietary Estoppels

The body of law in a State consists of two parts, substantive and adjective law. The former prescribes those rules of civil conduct which declare the rights and duties of all who are subject to the law. The latter relates to the remedial agencies and procedure by which rights are maintained, their invasion redressed, and the methods by which such results are accomplished in judicial tribunals. An Estoppel is a rule of evidence.An estoppel is a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.It is a bar that prevents the re-litigation of issues.It is an affirmative defense alleging good-faith reliance on a misleading representation and an injury or detrimental change in position resulting from that reliance.“Estoppe” says Lord Coke, comes from the French word estoupe, from whence the English word Stopped; and it is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closesth up his mouth to allege or plead the truth. Estoppel may also be defined to be a legal result of conclusion arising from an admission which has either been actually made, or which the law presumes to have been made, and which is binding on all persons whom it affects. In using the term estoppel, one is of course aware of its kaleidoscopic varieties. One reads of estoppel by conduct, by deed, by latches, by misrepresentation, by negligence, by silence and so on. There is also an estoppel by judgment and by verdict: there, however, obviously involve procedure. The first named varieties have certain aspects in common. But these aspects are not always interpreted by the same rules in all courts. The institution seems to be flexible. Kinds of EstoppelsEstoppels are many kinds, namely,• Administrative collateral estoppel.• Assignee estoppel.• Assignor estoppel.• Collateral estoppel.• Equitable estoppel.• Estoppel by conduct.• Estoppel by Contract.• Estoppel by deed.• Estoppel by election.• Estoppel by inaction• Estoppel by judgment.• Estoppel by latches.• Estoppel by misrepresentation.• Estoppel by negligence.• Estoppel by record.• Estoppel by representation.• Estoppel by silence.• Estoppel by standing by.• Estoppel by verdict.• Estoppel by warranty.• Estoppel in pais.• Estoppel on the record. • File wrapper estoppel.• Judicial estoppel.• Legal estoppel.• Marking estoppel.• Promissory estoppel.• Prosecution history estoppel.• Quasi estoppel.• Technical estoppel. There is also another kind of estoppel which is called the Proprietary Estoppel. In Re: Basham (dec’d) Mr. Edward Nugee (sitting as High Court judge) set out the principle of proprietary estoppel, in its broadest form, in the following terms:“Where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person. B, that either has or is going to be given a right in or over B property. B cannot insist on his strict legal rights if to do so would be in consistent with a belief.”

But it Wasn’t My Fault! The Scope of the Zoning Estoppel Doctrine

Zoning Estoppel is a claim in that may be argued by those who, in reliance on an invalid permit issued to them, expended substantial sums of money relying on the permit, later to have their permit revoked for invalidity. This claim is asking the courts to estop the municipality from their power to revoke the permit. Since this is a state-based claim in equity, there is no per se rule that courts use to analyze an estoppel claim other than fairness and equity to the permittee. As such, jurisdictions appear to approach the issue differently, resulting in a doctrine that has a reputation of being opaque, unpredictably applied, and often difficult to attain. This Note argues that while the Zoning Estoppel doctrine is often viewed as unavailable to recipients of illegal permits, courts do in fact invoke this doctrine. Though it seems as if there is no consistency with the way in which the doctrine is invoked, this Note further proposes that courts can and should find estoppel when the facts of the case satisfy four factual categories. Part I of this Note describes the nature and elements of an estoppel claim, the permit process, and the vested rights doctrine. Part II demonstrates the doctrine as applied in the courts, indicating issues courts face when ruling on an estoppel claim. Part III of this Note proposes that this blurred doctrine is not as ambiguous as it appears, and can be understood by analyzing the circumstances of each case. Specifically, it proposes a test consisting of four factual categories that tend to be determinative when courts are confronted with claims for equitable estoppel, and argues that courts should examine the facts of a zoning estoppel claim through these four factual categories. Finally, Part IV discusses the benefits and potential implications of adopting the test. Ultimately, assessing an estoppel claim through these four factors would create more consistency in applying the estoppel doctrine, and would make a successful claim by a developer or landowner more tenable.