Archive for the ‘Dispute Resolution’ Category

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.

Supreme Court of Canada Denies Leave in Domain Name Dispute Case

May 24, 2012

Today, the Supreme Court of Canada denied application for leave to appeal in Lojas Renner S.A. v. Tucows.Com Co. (Ont.) (Civil) (By Leave) (34481) Coram: Deschamps / Fish / Karakatsanis.

The dispute was over the right to the internet domain name “”. The applicant, Lojas Renner S.A., operates a number of retail department stores in Brazil and owns the registered trademark “Renner”, while the respondent,, is a Canadian domain name registrar which purchased the domain name “” in 2006 and is the registrant of that domain name with the internationally-recognized non-profit organization, the Internet Corporation for Assigned Names and Numbers (“ICANN”).   Lojas Renner S.A.’s motion to set aside service ex juris of statement of claim and to stay the action for want of jurisdiction was granted. The Ontario Court of Appeal unanimously allowed’s appeal. The Court of Appeal for Ontario held that Ontario had jurisdiction over the dispute, finding that a domain name is personal property and that presence-based jurisdiction is established if the plaintiff’s servers are physically located in Ontario.

Lojas Renner S.A. unsuccessfully sought leave to appeal on the following issues:

  • Whether the Court of Appeal erred in stating that the policy of the UDRP is to “refer” legitimate disputes to the Court?
  • Whether the Court of Appeal erred in holding that the Superior Court of Ontario’s jurisdiction was “unlimited and unrestricted”?
  • Whether the Court of Appeal erred in making no assessment of whether the claim before it was justiciable?
  • Whether the Court of Appeal erred in determining in the abstract that a domain name was “personal property in Ontario”?
  • Whether the Court of Appeal erred in failing to consider whether it accords with principles of order, fairness and comity to read “intangible” into Rule 17.02 – Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 17.02(a), 17.06(1).

I previously wrote a case comment about this important internet jurisdiction case: “The Internet as Property: The Implications of Tucows.Com Co. v. Lojas Renner S.A., and SOPA”, The Globetrotter, OBA International Law Section Newsletter, Volume 16, No. 1 – December 2011 [pdf].

Marc D. Froese: “Between Surveillance and Transparency: Trade Policy Review and North American Dispute Settlement at the WTO”

May 1, 2012
A North American Free Trade Agreement (NAFTA) ...

A North American Free Trade Agreement (NAFTA) Logo. Español: Logotipo del Tratado de Libre Comercio de América del Norte (TLCAN). Français : Logo de Accord de libre-échange nord-américain (ALENA). (Photo credit: Wikipedia)

Marc D. Froese (Canadian University College) has posted “Between Surveillance and Transparency: Trade Policy Review and North American Dispute Settlement at the WTO”. Here’s the abstract:

The Trade Policy Review Mechanism (TPRM) received much scholarly attention when it was first established in 1989, but has been overshadowed of late by dispute settlement processes. This paper examines the relationship between barriers to trade that are flagged by the World Trade Organization’s TPRM and subsequent challenges brought to the Dispute Settlement Body. Placing the TPRM in correlation to dispute settlement raises a question with significant policy implications: can Trade Policy Reviews be used to predict trade challenges? Such an undertaking requires an analysis of the chronologies of the trade policy review process and of the dispute settlement system. Using an empirical method for cross-referencing issues flagged by the TPRM and challenges brought to the Dispute Settlement Mechanism, the paper seeks to assess the efficacy of Trade Policy Reviews for predicting the future of trade litigation between Canada, the United States and Mexico.

Download a pdf copy of the paper from SSRN here.

S.I. Strong, “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared”

December 6, 2011

 S.I. Strong (University of Missouri School of Law) has posted “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared”, North Carolina Journal of International Law and Commercial Regulation, forthcoming/University of Missouri School of Law Legal Studies Research Paper No. 2011-24.  The abstract reads:

Class arbitration is a dispute resolution device that takes certain procedures more commonly seen in judicial class actions and transplants them into arbitration. The mechanism is of great interest in North America right now, with both the U.S. Supreme Court and the Supreme Court of Canada having heard several relevant cases in the last few years.

Despite sharing a similarly liberal attitude toward both arbitration and judicial class actions, the two countries have taken different approaches to the question of class arbitration. However, neither nation has identified a completely satisfactory solution to the problems that arise when mass claims are asserted in the face of an arbitration agreement, suggesting that both states could benefit from a comparative analysis.

This Article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the Article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

 The paper is available for download from SSRN here.

Ontario appeal court asserts jurisdiction; rules that a domain name is personal property

August 5, 2011

The Court of Appeal for Ontario in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 has issued a ground-breaking decision on domain names and personal property rights.

The unanimous judgment written by Justice Weiler (Simmons and Epstein JJ.A. concurring) merits close reading for those practicing in the area of internet law and jurisdiction. (more…)

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