In 2010, Professors Franco Ferrari and Stefan Kroell organized a seminar on “conflict of laws in international commercial arbitration”, conscious of the fact that every arbitration raises a number of ‘conflict of laws’ problems both at the pre-award and post-award stage. Unlike state court judges, arbitrators have no lex fori in the proper sense, providing the relevant conflict rules to determine the applicable law. This raises the question of which conflict of laws rules apply and, consequently, the extent of the freedom arbitrators enjoy in dealing with this and related issues. The papers presented at that conference were later published in a book co-edited by the two organizers of said conference. Professors Ferrari and Kroell are now preparing a new edition of the book, which has attracted a lot of attention over the years. Apart from updated versions of the papers published in the first edition (with the following titles: “Conflicts of law in international arbitration: an overview” by Filip De Ly, “The law applicable to the validity of the arbitration agreement: a practioner’s view” by Leonardo Graffi, “Applicable laws under the New York Convention” by Domenico Di Pietro, “Jurisdiction and applicable law in the case of so-called pathological arbitration clauses in view of the proposed reform of the Brussels I-Regulation” by Ruggiero Cafari Panico, “Arbitrability and conflict of jurisdictions: the (diminishing) relevance of lex fori and lex loci arbitri” by Stavros Brekoulakis, “Extension of arbitration agreements to third parties: a never ending legal quest through the spatial-temporal continuum” by Mohamed S. Abdel Wahab, “The effect of overriding manadatory rules on the arbitration agreement” by Karsten Thorn and Walter Grenz, “Arbitration and insolvency: selected conflict of laws problems” by Stefan Kröll, “Getting to the law applicable to the merits in international arbitration and the consequences of getting it wrong” by Franco Ferrari and Linda Silberman, “Manadatory rules of law in international arbitration” by George A. Bermann, “Conflict of overriding mandatory rules in arbitration” by Anne-Sophie Papeil, “The law applicable to the assignment of claims subject to an arbitration agreement” by Daniel Girsberger, “The laws governing interim measures in international arbitration” by Christopher Boog), the new edition seeks to include papers on new topics, such as the law governing arbitrators’ liability, the law governing issues of characterization in commercial and investment arbitration, the law governing limitation periods (including their characterization as procedural or substantive), the law governing the taking of evidence (including the characterization of evidence as procedural or substantive, its admissibility and weight), the law governing damages (including whether different laws govern heads of damages and quantification), the law governing issues fees and costs, the law governing res iudicata, the law governing privilege, the law governing ethical obligations (both of arbitrators and counsel), the role of the Hague Principles on Choice of Law in international arbitration).

The editors welcome the submission of papers on any of the aforementioned topics as well as other topics related to the relationship between conflict of laws and international commercial arbitration. If interested, please submit an abstract (2000 words) and a basic bibliography to Professors Ferrari (franco.ferrari@nyu.edu) and Kroell (stefan.kroell@law-school.de) for acceptance by 1 October 2017. If accepted, the paper will need to be submitted (in blue book format) by 1 February 2018. 

Professor Gilles Cuniberti (University of Luxembourg) has just published a new monograph on default arbitration in the Rethinking Law series of Edward Elgar Publishing.

The official abstract kindly provided by the publisher reads as follows:

This innovative book proposes a fundamental rethink of the consensual foundation of arbitration and argues that it should become the default mode of resolution in international commercial disputes.

The book first discusses the most important arguments against this proposal and responds to them. In particular, it addresses the issue of the legitimacy of arbitrators and the compatibility of the idea with guarantees afforded by European human rights law and US constitutional law. The book then presents several models of non-consensual arbitration that could be implemented to afford neutral adjudication in disputes between parties originating from different jurisdictions, to offer an additional alternative forum in the doctrine of forum non conveniens or to save judicial costs.

The first dedicated exploration into the groundbreaking concept of default arbitration, Rethinking International Commercial Arbitration will appeal to scholars, students and practitioners in arbitration and international litigation.

Further information, including a table of contents and some extracts, is available on the publisher’s website.

Ontario has enacted and brought into force the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sched 5 (available here) to replace its previous statute on international commercial arbitration.  The central feature of the new statute is that it provides that BOTH the 1958 New York Convention and the 1985 Model Law have the force of law in Ontario.  Previously, when Ontario had given the Model Law the force of law in Ontario it had repealed its statute that had given the New York Convention the force of law in Ontario.  This made Ontario an outlier within Canada since the New York Convention has the force of law in all other provinces (as does the Model Law).

The previous statute did not address the issue of the limitation period for enforcing a foreign award.  The new statute addresses this in section 10, adopting a general 10 year period from the date of the award (subject to some exceptions).   Section 8 deals with the consolidation of arbitrations and section 11 deals with appeals from arbitral decisions on jurisdiction.

Dear readers, my apologies for the puzzling title of this post, but I take the opportunity to bring the following three unrelated publications to your attention before this year ends. HAPPY 2017!

A few months ago the book eAccess to Justice was published (eds. Karim Benyekhlef, Jane Bailey, Jacquelyn Burkell, Fabien Gélinas; University of Ottawa Press 2016), including a few papers on cross-border litigation. More information is available here. The blurb reads:

Part I of this work focuses on the ways in which digitization projects can affect fundamental justice principles. It examines claims that technology will improve justice system efficiency and offers a model for evaluating e-justice systems that incorporates a broader range of justice system values. The emphasis is on the complicated relationship between privacy and transparency in making court records and decisions available online. Part II examines the implementation of technologies in the justice system and the challenges it comes with, focusing on four different technologies: online court information systems, e-filing, videoconferencing, and tablets for presentation and review of evidence by jurors. The authors share a measuring enthusiasm for technological advances in the courts, emphasizing that these technologies should be implemented with care to ensure the best possible outcome for access to a fair and effective justice system. Finally, Part III adopts the standpoints of sociology, political theory and legal theory to explore the complex web of values, norms, and practices that support our systems of justice, the reasons for their well-established resistance to change, and the avenues and prospects of eAccess. The chapters in this section provide a unique and valuable framework for thinking with the required sophistication about legal change.

Csongor István Nagy (University of Szeged) has published The Lesson of a Short-Lived Mutiny: The Rise and Fall of Hungary’s Controversial Arbitration Regime in Cases Involving National Assets (27 The American Review of International Arbitration 2 2016, 239-246), available on SSRN. The blurb reads:

This paper presents and analyzes Hungary’s recent legislative efforts and failure to exclude arbitration in matters involving (Hungarian) national assets, demonstrating the difficulties a country faces if it attempts to defy the prevailing pattern of dispute settlement in international trade. The lesson of the Hungarian saga is that, unsurprisingly, arbitration is not only a ‘take it or leave it’ but even a ‘take it or leave’ rule of the club of international economic relations.

Last October, INT-AR Paper 6, authored by Veerle Van Den Eeckhout (University of Antwerp), was published and is entitled “Toepasselijk arbeidsrecht bij langdurige detachering volgens het wijzigingsvoorstel voor de Detacheringsrichtlijn. Enkele beschouwingen vanuit ipr-perspectief” (in English: “The draft proposal to amend the Posting of Workers Directive assessed from the private international law perspective”). The paper is written in Dutch and is downloadable here and on SSRN.

Prof. Massimo Benedetelli (Professor of International Law, University ‘Aldo Moro’, Bari. ARBLIT, Milan, partner) has just drawn my attention to this piece of his, published in the Journal of International Arbitration 33, no. 6 (2016), pp. 653–686. The abstract reads as follows:

The International Institute for the Unification of Private Law, which recently celebrated its 90th anniversary, published in 1994 the Principles of International Commercial Contracts. Since then the UNIDROIT Principles have been more and more often referred to by arbitral tribunals when settling contractual disputes. As a non-binding instrument of soft law, however, the UNIDROIT Principles may play a very different function depending on whether they are used as “rules of law” for the regulation of a contractual relationship, are incorporated as terms of a contract governed by a state contract law, or are means to interpret and supplement the applicable contract law or the 1980 United Nations Convention on Contracts for the International Sale of Goods. Moreover, they can be applied pursuant to an express or implied choice made by the parties, either in the contract or after the dispute has arisen, or when the arbitral tribunal so decides by its own motion. In all such different scenarios different problems may arise for the coordination of the UNIDROIT Principles with sources of state law that have title to regulate the contractual relationship in dispute. Understanding such problems and finding a solution to them is essential in order to avoid the risk that the award may be later challenged or refused recognition. Such understanding could also foster the legitimacy of requests made by a party, or decisions taken by the arbitral tribunal, to apply the UNIDROIT Principles. It is submitted that private international law, taken as a technique for the coordination of legal systems, may offer a useful know-how to parties, counsel, arbitrators and courts for mastering such problems in a reasoned and sound way. This may result in enhancing the effectiveness of the UNIDROIT Principles, while balancing party autonomy with the sovereign interest of states in regulating international business.

The EBS Law School in cooperation with Clifford Chance will host the EBS Law School Arbitration Day on 18 November 2016 organized by Professor Dr. Matthias Weller and Dr. Alexandra Diehl.

The event will focus on the quest for improved systems of arbitration. Topics will be:

• Dispute Resolution in Asia: Dominated by the Singaporean Merlion?
• The Iran-United States Claims Tribunal: a role model for international arbitration?
• TTIP and CETA: On a Road to Nowhere or to Success?

The speakers are:

• Claudia Annacker, Cleary Gottlieb, Paris
• Simon Greenberg, Clifford Chance, Paris
• Elan Krishna, Clifford Chance, Singapore
• Dr. Cristina Hoss, Legal Adviser to Judge Bruno Simma, Iran-US Claims Tribunal, Den Haag
• Prof. Dr. R. Alexander Lorz, Secretary for Public Education, German State of Hesse, Wiesbaden
• Representative from US Consulate General Frankfurt
• Prof. Dr. André Schmidt, EBS Business School/University Witten-Herdecke
• Prof. Dr. Mathias Wolkewitz, General Counsel Legal, Taxes, Insurances, Wintershall AG

The lectures as well as the panel discussions will be in English. The event will start at 1.30 p.m. in Lecture Room “Sydney” at EBS Law School in Wiesbaden.

For further information and registration see here.

Wilmer Cutler Pickering Hale and Dorr LLP are delighted to invite you to the launch of the special BREXIT issue of the Kluwer Journal of International Arbitration.
Professor Dr. Maxi Scherer, General Editor of the Journal of International Arbitration and Dr. Johannes Koepp, Special Issue Editor, will host a discussion with the authors on the content of the Special Issue.

Topics and speakers will include:
How Brexit Will Happen: A Brief Primer on EU Law and Constitutional Law Questions Raised by Brexit – Dr. Holger P. Hestermeyer
What Does Brexit Mean for the Brussels Regime? – Sara Masters QC & Belinda McRae
Brexit Consequences for London as a Premier Seat of International Dispute Resolution in Europe – Michael McIlwrath
Impact of Brexit on UK Competition Litigation and Arbitration –Gilbert Paul
Brexit and the Future of Intellectual Property Litigation and Arbitration – Annet van Hooft
Possible Ramifications of the UK’s EU Referendum on Intra- and Extra-EU BITs – Markus Burgstaller

Date: Thursday, September 29, 2016 6–9 p.m.

Venue: 49 Park Lane, London, W1K 1PS

To register: here

(The Special Issue journal launch will be followed by a champagne reception)

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

Claudia Pechstein, an internationally successful ice speed skater, claims damages against the International Skating Union (ISU) because of a two-year-suspension for doping. The essential question was whether an arbitration agreement signed by Pechstein is effective. This agreement includes amongst other things the exclusive jurisdiction of the Court of Arbitration for Sport (CAS) in Lausanne. Pechstein claimed that the arbitration agreement was invalid under § 19 GWB (German Antitrust Legislation) because the ISU (nationally and internationally only the ISU organizes competitions in ice speed skating) has abused its dominant position. Pechstein had to sign the arbitration agreement to be admitted to the competition. She claimed that the list of arbitrators of the CAS, from which the parties must each select an arbitrator, has not been prepared impartially because the sports federations and Olympic committees have a clear predominance in creating the list.

However, the German Federal Court of Justice (Bundesgerichtshof) does not agree with these propositions. The Court, by its decision of 7 June 2016, docket no. KZR 6/15, ruled that the action is inadmissible because of the arbitration agreement. The Court held that the ISU is indeed dominant in the organization of international speed skating competitions, but has shown no abusive conduct because the associations and the athletes do not confront each other as guided by fundamentally conflicting interests. There was no structural imbalance in the composition of the tribunal ruling on Pechstein‘s  suspension. Furthermore, in the Court’s view,  Pechstein has signed the agreement voluntarily, even if she otherwise could not have participated in the contest. A consideration of the mutual interests in the light of § 19 GWB justifies the application of the arbitration clause. However Pechstein is entitled to invoke the internationally competent Swiss courts following the arbitral procedure.

As you may (or may not) already know, a team of researchers recently concluded a study for the European Parliament on arbitration across the European Union and Switzerland. As part of this study the researchers undertook a large-scale survey of arbitration practitioners across Europe, including 871 respondents from every country in the European Union and Switzerland. The results of this survey have allowed the research team to produce far more information on the practice of arbitration in Europe than has previously been available. (see, e.g. this discussion of arbitration in six southern European countries)

A new team of researchers (Tony Cole, Paolo Vargiu, Masood Ahmed at the University of Leicester; S.I. Strong at the University of Missouri, Manuel Gomez at Florida International University, Daniel Levy at Escola de Direito da Fundação Getúlio Vargas – São Paulo, and Pietro Ortolani at the Max Planck Institute Luxembourg) is now working in collaboration with the ICC International Court of Arbitration and the the Organisation of American States to deliver a survey that will generate similar information on the practice of arbitration in the Americas. Letters of support have been received from both the ICC and the OAS. Results from the survey will be used to draft articles on arbitration in the Americas, written by the members of the research team.

The survey consists almost entirely of multiple-choice questions, and only takes approximately half an hour to complete. Moreover, it need not be completed in a single sitting, and if respondents return to the survey on the same computer and with the same browser, they can resume where they left off. The survey team will keep responses confidential and will not divulge any respondent’s identity at any time without his or her explicit consent.

All response data from the survey will be stored securely under password on SurveyMonkey. All research records will be retained for a period of 7 years following the completion of the study. Responses by an individual can, however, be deleted at any time upon request of that individual. Responding to the survey will be taken as consenting to the use of the information provided, for the purposes of drafting the articles deriving from this project.

The survey will remain open until July 11, 2016. The survey is available here.