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Are Tolling Agreements Enforceable In New York

jeudi, décembre 3, 2020

On March 20, 2020, Governor Cuomo adopted Executive Order 202.8, which declared a state of emergency and set aside some deadlines – and explicitly said that those deadlines would be « wasted » until April 19, 2020. Executive order 202.8 was extended by subsequent executive orders, including the last 202.67, and the deadline was extended until 3 November 2020. See New York Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1 and 202.60. See z.B. 202.38 (suspension) vs. 202.60 (toll). Courts that find that arbitrators have not found, to the extent that a judge is limited by the state`s prescription, that an arbitral tribunal only has to decide that a claim was made within a reasonable time, taking into account all the facts and circumstances of the case. [8] Although in many cases a « reasonable time » standard suggests a relaxation of formalities and gives applicants more than less time to initiate arbitration proceedings, this is not always the case. While the New York courts have announced that they will no longer accept non-essential applications, including complaints that interrupt the enforcement of restrictions,[9] arbitration tribunals still accept electronic applications.

Since March 25, 2020, major arbitration institutions that manage New York arbitration, such as AAA/ICDR,[10] JAMS,[11] CPR,[12] and ICC[13] still accept electronic registrations, even though some of these institutions have closed their physical offices. Since the parties are still in a position to file arbitration applications, there may not be the same need as in the State Court for a full toll of all limitation periods. Similarly, when deciding to settle claims, the parties deliberately choose to withdraw from the judicial system, so that they may not expect to receive the benefits or suffer the consequences of the overall stay in court proceedings. As a result, it is possible that an arbitrator could, in years, consider that it was not reasonable for an applicant, on the basis of E.O. 202.8, to have six years and 30 days (or four years and thirty days of waiting time in the arbitration proceedings governed by the N.Y. U.C.C, four years and thirty days) for having filed an arbitration application, since the period had elapsed since the end of the state of emergency. However, Fahey J.A. found that the delimitation clause was contrary to both rules. First, the demarcation clause « would effectively extend the statute of limitations that was made prior to the offence. » [12] Second, the clause « would extend the statute of limitations to an uncertain date, since the discovery of the infringement by the plaintiff or the defendant`s notification of the infringement could occur decades in the future, for the duration of the mortgages. » [13] These two results would not be applicable under New York law. [14] The parties cancelled the first toll agreement and introduced a new toll agreement, which also came into force on 24 September 2010 (second toll agreement).


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