United States

Appointment of arbitrators, Canada, Conference, Diversity, national court, North America, Transparency, Transparency in investment arbitrations, UK, United States

(Willoughby & Hoefer)/ /Leave a comment

On the heels of a year that has seen the rise of populist nationalism, skepticism of multilateral trade agreements and calls to tighten in some ways the flow of people across borders – perhaps most visibly in the United States and across Europe, but with manifestations elsewhere – many communities saw a retreat from international…

Anti-arbitration, Anti-ISDS Propaganda, Canada, China, Financial Industry, Investor-State arbitration, ISDS, Mexico, NAFTA, Negotiation, Pro arbitration, United States, USMCA

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Debates about the propriety of investor-state dispute settlement (ISDS) were revived by a recent letter by U.S. academics, which urged the abandonment of ISDS in the renegotiated North American Free Trade Agreement (NAFTA). This letter repeated arguments that are familiar from prior ISDS debates, such as that ISDS “grants foreign corporations and investors rights to skirt domestic…

Arbitration, Calvo Doctrine, ISDS, NAFTA, United States, USMCA

(Richard Levin Arbitration)/ /Leave a comment

After the US election, it was a certainty that in my inbox every morning there was at least one, if not more, email with a discussion on the future of arbitration in our changing society today. And this debate has continued in halls of university law schools to GAR events to law firm seminars. I…

Arbitration, Brexit, China, Hong Kong, United States

(Hong Kong International Arbitration Centre )/ /Leave a comment
HK45

Recent political developments have resulted in considerable geopolitical uncertainty and presented challenges to the international order. With the UK’s vote to exit the European Union, the election of Donald Trump as US president, the Western sanctions against Russia, and the rising North Korea nuclear tensions, 2017 ushers in a turbulent time where commercial parties’ usual…

Annulment, Anti-arbitration, Enforcement, Enforcement of an award that was set aside, United States

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The finality of an award is a key feature and attraction of arbitration as a method of dispute resolution. When an award is annulled at the seat, however, enforcing courts in secondary jurisdictions must decide between enforcing the award or honoring the seat-court’s nullification. This issue assumes significance in light of the recent judgment of…

Arbitration, Expropriation, Jurisdiction, Sovereign Immunities, United States

(King & Spalding)/ /Leave a comment
Young ICCA

Overview On May 1, 2017, the United States Supreme Court issued its unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co. (137 S.Ct. 1312). In its ruling, the Court addressed the expropriation exception to the Foreign Sovereign Immunities Act (the “FSIA”). The expropriation exception permits plaintiffs to bring claims in…

Arbitration, Arbitration Awards, Enforcement, Enforcement of an award that was set aside, UNCITRAL Arbitration Rules, United States

(Albright StoneBridge Group)/ /2 Comments

The US Court of Appeals for the 2nd Circuit’s Thai-Lao Lignite (Thailand) v. Government of the Lao People’s Democratic Republic The friction between a seat and an enforcement forum, i.e. between annulment and enforcement continues. An arbitral award in the Thai-Lao Lignite (Thailand) v. Government of the Lao People’s Democratic Republic case (“Thai Lao Lignite…

Fair and Equitable Treatment, NAFTA, Trans-Pacific Partnership, United States, USMCA

(Hanotiau & van den Berg)/ /1 Comment
Young ICCA

Despite apparent “America First” language in the US Summary of Objectives for the NAFTA renegotiation which appear contrary to the minimum standards of treatment and fair and equitable treatment, those protections are likely to remain in a new NAFTA. On 17 July 2017, the US Trade Representative published the “Summary of Objectives for the NAFTA…

ADR, ADR Clauses, Appeal, Discovery, Insurance, United States

, , (BatesCareyLLP)/ /Leave a comment

The U.S. District Court for the Southern District of New York has enforced a P&I Club’s internal claims appeal process as a legally binding alternative dispute resolution (“ADR”) method, rejecting allegations brought by one the Club’s Members that the procedure was “fundamentally unfair.” TransAtlantic Lines LLC v. Am. Steamship Owners Mut. Prot. & Indemn. Ass’n,…

Arbitrability, Arbitration clause, Consent, Domestic arbitration, Domestic Courts, Domestic law, Enforcement of an arbitration clause, Federal Arbitration Act (FAA), United States

, (Mayer Brown) and (Goldman Ismail Tomaselli Brennan & Baum LLP)/ /Leave a comment

Businesses that are party to an arbitration agreement governed by Nevada law should understand that a little-known Nevada statute renders these agreements unenforceable if a contract lacks so-called “specific authorization” indicating that a person affirmatively assented to the arbitration provision itself. While the Nevada Supreme Court has applied this rule to invalidate arbitration agreements, a…

Fair and Equitable Treatment, Investment protection, Investor, U.S. Supreme Court, United States

(Three Crowns LLP)/ /Leave a comment
Three Crowns LLP

The U.S. Court of Appeals for the Fourth Circuit recently issued an en banc decision, in International Refugee Assistance Project IRAP v Trump, affirming the district court’s injunction against President Trump’s Executive Order temporarily suspending entry into the United States by individuals from six Muslim-majority countries. Although the case concerns the application of specialized U.S….

Appeal, Arbitration Awards, Domestic arbitration, Public Policy, Set aside an arbitral award, United States

(Herbert Smith Freehills)/ /3 Comments

On April 28, 2017, the Court of Appeals for the District of Columbia Circuit (in a majority decision) affirmed the district court’s decision to set aside an award issued by a sole arbitrator finding that the award violated public policy.  The award was rendered in the context of mandatory arbitration of statutory claims under the…

Consent, Insurance, Jurisdiction, Jurisdiction Clause, United States

, (BatesCareyLLP)/ /Leave a comment

The question of whether the jurisdictional grant in a “service of suit” clause overrides an otherwise valid and enforceable arbitration clause in the same agreement has been addressed by several courts in the United States. See McDermott Int’l, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199 (5th Cir. 1991); Neca Ins., Ltd. v. Nat’l…

Arbitral Tribunal, Discovery, International arbitration, Section 1782 Discovery, United States

(Quinn Emanuel Urquhart & Sullivan, LLP)/ /Leave a comment

Section 1782 has become the weapon of choice for international litigants seeking discovery in aid of foreign proceedings. Section 1782 allows an “interested person” to apply for discovery over a person or entity “found” in the U.S. “for use” in a proceeding “in a foreign or international tribunal.” Significant uncertainty exists, however, in whether Section…

ISDS, NAFTA, TPP, Trans-Pacific Partnership, United States

(Lalive) and (Dechert)/ /1 Comment

In recent weeks, criticism of the TPP has been increasingly focused on the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. Massachusetts Senator Elizabeth Warren initiated the charge against the TPP’s ISDS mechanism, and her attacks were recently supported by more than two hundred economists and law professors, who addressed a letter to…

ISDS, Trans-Pacific Partnership, United States

(Lalive) and (Dechert)/ /Leave a comment

In recent weeks, it has become clear that the latest lightning rod for TPP criticism is the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. With Massachusetts Senator Elizabeth Warren leading the charge in this new fight, and a recent letter circulated to members of Congress by more than two hundred economists and…

Australia, CAFTA, Indonesia, KORUS, TPP, Trade, Trans-Pacific Partnership, Treaty, UNCLOS, United States, VCLT, Vienna Convention on the Law of Treaties, Vietnam

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In the United States, approval prospects may appear bleak for the Trans-Pacific Partnership  Agreement (“TPP”) – at least at present. The current political climate appears generally negative on trade, and even Vice President Joe Biden stated recently that he saw “less than an even chance” that TPP would be approved before the new U.S. president…

Consumer contracts, European Union, United States

(Motieka & Audzevicius)/ /Leave a comment

The United States (“US”) and European Union (“EU”) demonstrate major differences in relation to consumer arbitration. In December 2015, the US Supreme Court rendered a judgment in Direct, Inc. v. Imburgia et al., an important precedent for consumer arbitration, which may make the law of these two jurisdictions diverge even further. This blog post discusses…

Cuba, Investment, Investment agreements, Investment protection, Sanctions, United States

(BakerHostetler)/ /Leave a comment

More than one year has passed since the U.S. and Cuba started to rekindle their relationship and restore economic ties. The Cuban government is opening the country to foreign investment, the U.S. is relaxing the sanctions imposed on Cuba, and both countries reopened their embassies after half century of frosty relations. Despite U.S. sanctions, Cuba…

BIT, Costs in arbitral proceedings, Customary international law, Expropriation, Fair and Equitable Treatment, Free Trade Agreements, ICSID Arbitration, ICSID Convention, Investment Arbitration, Middle East, Treaty Interpretation, United States

(Blanke Arbitration LLC)/ /Leave a comment

This is Part II of a previous blog, discussing a recent Award dated 27 October 2015 rendered in ICSID Case No. ARB/11/33 – Adel A Hamadi Al Tamimi v. Sultanate of Oman and dismissing all claims against Oman (see Part I of the blog). By way of reminder, the claims brought in these ICSID proceedings…

Arbitration institution, Emergency Arbitrator, North America, United States

(Young International Arbitration Practitioners of New York) and (Herbert Smith Freehills)/ /Leave a comment

In September 2015, the Young International Arbitration Practitioners of New York (YIAP-NY) was officially launched. Initiated by the International Arbitration Group at Herbert Smith Freehills New York LLP, YIAP-NY’s membership is comprised of young lawyers from more than 14 law firms in the city, as well as young practitioners from arbitral institutions such as the…

Arbitration, Consent, Domestic Courts, obligation to arbitrate, Procedure, Stay of Proceedings, United States, Waiver

(Chinese University of Hong Kong, Faculty of Law)/ /1 Comment
YSIAC

The Sixth Circuit Court of Appeals recently ordered a fund management committee (‘SBC’) to arbitrate its dispute with Navistar International (‘Navistar’) – at Navistar’s request – despite the fact that Navistar refused SBC’s own request for arbitration, ignored SBC’s formal notice of arbitration, and then litigated SBC’s claim in court for over a year (Art…

Arbitration, Colombia, Latin America, Predictability, United States

(Bilzin Sumberg Baena Price & Axelrod LLP)/ /Leave a comment

Perhaps on a daily basis, in at least one city somewhere in the Western Hemisphere, an international-arbitration practitioner is asked to describe the benefits of arbitration over litigation in Latin America. The common refrain: “Predictability.” As conventional wisdom goes, this almost automatic response is borne out of the notion that litigating in many Latin American…

France, Recognition and enforcement of arbitral award, Seat of the arbitration, United States

(Sydney Law School)/ /9 Comments

The enforcement of awards following a decision at the seat remains a controversial issue in international arbitration. Should an enforcement court follow the decision of the seat court, or can the enforcement court reach a different conclusion? US courts and French courts continue to take different approaches to this issue. US courts will defer to…