Venable partner Randy Miller was quoted in articles in Law360 and the National Law Journal on August 15, 2017, regarding Venable's client, Sharp Corp., filing a lawsuit in Washington, DC, federal court to lift a gag order barring the electronics maker from discussing ongoing arbitration against Chinese state-owned Hisense Co. Ltd., attacking what it called a blatant First Amendment violation by a Singapore arbitrator.
Sharp and its U.S. subsidiary are asking the court to declare that an order preventing them from talking with consumers, retailers, and regulators about arbitration involving its trademark licensing deal with Hisense is unenforceable in the U.S. Sharp is challenging the order under the New York Convention's "public policy exception," saying it contravenes the free speech protections of the First Amendment.
In the Law360 article, Miller said, "Businesses that are in a marketplace sometimes say things about each other that are critical or that one party doesn't like, but the answer to that is not to put a muzzle on it. That's our free market society." Miller explained that the gag order puts Sharp in the "very impossible situation" of having to run a business without being able to respond to legitimate questions from consumers, retailers, and regulators.
In the National Law Journal article, Miller acknowledged that simply filing the lawsuit does indeed make the arbitration public, possibly in violation of the order, but he said that "an arbitrator could never immunize his own order from judicial review." Under the New York Convention, incorporated into the Federal Arbitration Act, recognition and enforcement of arbitral awards can be refused if a court finds the enforcement would "be contrary to the public policy of that country."