Archive for the ‘international commercial arbitration’ Category

2014 Canadian International Law Students Conference

January 28, 2014

CILSC

I am privileged to be the keynote speaker at the upcoming  2014 Canadian International Law Students Conference, jointly presented by the International Law Society of University of Toronto Faculty of Law and Osgoode Hall Law School on Saturday, 1 February 2014 from 9:30 AM to 6:00 PM (EST). Here are the event details:

Event Details

The CILSC provides a forum for law students, academics, practitioners, and leaders in the field to exchange ideas about Canada’s international and domestic performance in public and private international law. Speakers will also touch on how to begin exploring a career in this field. For speaker bios visit www.cilsc.com

The conference has a history of attracting prominent speakers involved in the practice and study of international law. This year we are featuring speakers across five panels:

Panel 1: Litigating Foreign Cases in Canadian Courts
Panel 2: International Intellectual Property Law
Panel 3: Careers in Public International Law
Panel 4: Careers in Private International Law
Panel 5: Law and the Syrian Crisis

Schedule:

9:30-9:45 Introductions
9:45-11:00: Substantive panel 1 (Public)
11:15-12:30: Substantive panel 2 (Private)
12:30-1:30: Lunch
1:30-2:30: Concurrent Career Panels
2:45-4:00 Substantive Panel (Syria)
4:00-5:30 Reception

Ticket Information:

Online Student Ticket: $12.00

In-person Student Ticket: $10.00

For in-person tickets, Osgoode students please contact cassandrastefanucci@osgoode.yorku.ca; U of T students please contact james.rendell@mail.utoronto.ca or ws.wu@mail.utoronto.ca. These tickets will be available at the door.

Professional Tickets: $75.00

Current members of the bar who attend the conference are eligible for up to 3.75 hours of CPD credits. We will provide holders of Professional Tickets materials to be submitted to the law society for CPD credits.

If you’re interested in a career in international law or want to hear about the latest international law developments from leading academics and practitioners , this is a must-attend program.

Pottow et al., “A Presumptively Better Approach to Arbitrability”

September 3, 2013

John A. E. Pottow (University of Michigan Law School), Jacob Brege and Tara J. Hawley (J.D. Candidates, University of Michigan Law School) have published “A Presumptively Better Approach to Arbitrability”, Canadian Business Law Journal, Vol. 53, No. 3, March 2013/U of Michigan Law & Econ Research Paper No. 13-012/U of Michigan Public Law Research Paper No. 339. Here’s the abstract:

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator’s purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of “arbitrability” that necessarily arises when one party disputes the contractual validity of the underlying “container” contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no arbitration agreement).

The U.S. approach of “separability” dates back a half-century to a Supreme Court case that was controversial when it was decided and remains so today. The Supreme Court has added several more decisions trying to clarify its arbitrability rules within just the past few years. The Canadians too have tried to sort out this mess, seizing upon the hoary legal distinction between law and fact, also offering recent Supreme Court pronouncements. Neither country’s approach is normatively or functionally satisfying.

After discussing and critiquing the two approaches comparatively, we offer our own proposal. We too deploy legal presumptions, but in our case we focus on what we contend are the two most relevant criteria: (1) the nature of the legal challenge to the underlying container contract, and (2) the type of contract at issue. Challenges to consent in contract formation and contracts involving adhesion should be specially scrutinized by the courts before carting parties off to arbitration, whereas commercial agreements between sophisticated actors should presumptively be for arbitral resolution, even for “constitutive” challenges to the underlying contract.

 A pdf copy of the paper is available for download on SSRN here.

Successfully Navigating an International Commercial Arbitration | Toronto, ON | Oct. 3/13

September 3, 2013

OBA CIArb Successfully Navigating an International Commercial Arbitration

Appadoo on “Enforcement of International Commercial Arbitral Awards: Redress Mechanisms in the Event of Non-Compliance”

May 3, 2013

Krishnee Adnarain Appadoo (University College London; The College of Law of England and Wales; Universite Paul Cezanne Aix Marseille III) has posted a working paper entitled: “Enforcement of International Commercial Arbitral Awards: Redress Mechanisms in the Event of Non-Compliance”. Here is the abstract:

International commercial arbitration and its efficiency not only depend on the recognition and enforceability of foreign arbitral awards, but also rest on a willingness by national jurisdictions to minimize the scope for challenging the validity of a duly rendered award. The author will perform an evaluation into the effectiveness of the redress mechanisms available for a party seeking to enforce a foreign arbitral award against an award-debtor seeking to challenge such an award. Furthermore, there needs to be an assessment of the role of international conventions, especially the Model Law and the New York Convention, in determining whether international comity favours enforcement or not. As to the multiplicities of legal systems as well as the problems of interpretation of the provisions of the New York Convention, it has to be determined whether national courts are best placed to solve the complexities inherent in international commercial arbitration. The author argues that to understand the multifarious aims of international commercial arbitration, there is the need to evaluate the interplay of relationships between the enforcing court and the arbitral tribunal; the supervisory courts at the seat of arbitration and the arbitral tribunal, and finally the enforcing court and the supervisory courts at the seat of arbitration. It is argued that whatever the priorities of national courts in their policy with respect to international commercial arbitration, what is sought is not merely a pro-enforcement stance, but rather a willingness to comply with one of the fundamental principles of the New York Convention which is to harmonize the enforcement and recognition of duly made foreign arbitral awards.

Download a copy of the paper at SSRN here.

 

Alan Scott Rau on “Arbitrating ‘Arbitrability’”

April 16, 2013

Alan Scott Rau (University of Texas at Austin School of Law, The Center for Global Energy, International Arbitration, and Environmental Law) has posted “Arbitrating ‘Arbitrability‘”, World Arbitration and Mediation Review, 2013/U of Texas Law, Public Law Research Paper No. 403.  The abstract reads:

This paper was prepared for a presentation at the Institute for Transnational Arbitration/American Society of International Law program on “Gateway Issues in International Arbitration.”

It is quite common, in the case law and the secondary literature, to focus discussions in terms of “gateway” or “threshold” challenges to the arbitration of a commercial dispute. Like most metaphors, this is rife with ambiguity: The notion of a “gateway” may, purely as a semantic matter, direct us to distinguish between issues that must be resolved before a party can be permitted to proceed and fully adjudicate the “merits” of the dispute — issues that may after all include such things as the non-payment of fees, or the untimely making of an application — and those that need not be. Or alternatively, it may ask us to distinguish between issues that must be resolved before a party may even invoke arbitral jurisdiction — and those that may instead be left to the arbitrators themselves. And even within this second category, it is still frequently unclear whether: (1) the metaphor of a “gateway” is being used to evoke what is a logically prior prerequisite to arbitral jurisdiction — asking us, that is, to distinguish between those issues that (whenever raised) will condition the ultimate validity of an award — and those that do not; or whether (2) the term is being used, instead, to evoke what is merely chronologically prior to arbitral proceedings — asking us, that is, to distinguish between those issues that (whoever will have the final word on the subject) must be resolved before a party is permitted even to have access to the arbitral tribunal — and those that need not be.

These last two questions are often conflated, but ought best be kept distinct. I discuss the question of timing and chronology, which is largely a matter of efficiency, but only the former question, I think, is truly challenging. The inquiry is thus into the allocation of decisionmaking authority between courts and arbitrators. This question — the respective roles of courts and arbitral tribunals — is, in one form or another, the foundational, primal question around which our whole law of arbitration revolves.

It is obligatory these days to begin and end every discussion with the Supreme Court’s decision in First Options, and in particular Justice Breyer’s suggestion there that parties may entrust arbitrators with the power to decide jurisdictional questions — and if they have done so “clearly and unmistakably,” the tribunal’s decision on the subject will be entitled to the same deference as is any arbitral award. It seems fair to say that Justice Breyer’s discussion has often been overread. And in practice, and in positive law, the supposed lessons have now become marginalized — have dwindled into insignificance — to the point that to invoke them begins increasingly to sound hollow and perfunctory. This is why any requirement of “clear statement” — even if in theory made necessary by Justice Breyer’s taxonomy — is here so routinely and trivially satisfied.

This impression is reinforced by the common practice of fleshing out agreement through the use of institutional rules. Contractual incorporation of the Rules of the AAA — adopted precisely to take advantage of the hint dropped by Justice Breyer — is now routinely deemed to constitute party agreement to the arbitrability of “jurisdictional disputes.” This common reading has now become a default rule that treats a reference to the Rules as a simple “term of art” denoting the choice of a particular scheme for the allocation of power. And while the backstory, and the preconceptions, underlying other commonly-used bodies of institutional rules are entirely different, it was inevitable that U.S. courts have been led to treat all these facially-similar rules as identical.

If this is troubling in theory, one cannot avoid the impression that it doesn’t seem to make much of a difference in result. The point is illustrated nicely by two very recent decisions of our Second Circuit, the Thai-Lao and Schneider/Kingdom of Thailand cases. Reading them, it is hard to avoid the conclusion that in where U.S. arbitration law appropriately governs the agreement, the rules of arbitral institutions — however they are construed — are as likely as not to amount to a makeweight; it does no great harm to assume that they may be properly treated in the end as tangential to any actual decision. What seems “overdetermined” is that even if the challenges in such cases — such as the right of a non-signatory to compel arbitration, or the existence of an approved investment under a BIT — is somehow to be construed as “jurisdictional” (which I very much doubt) — U.S. law will properly, and through a default rule methodology, allocate the decision to arbitrators. The implication is that even transnational cases will be expected to remain within the framework of the present complex structure of our common law — notwithstanding the siren calls of “international consensus.”

 A pdf copy of the article is available for download via SSRN here.


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