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Waiving the Right to Arbitrate in the United States: Should the Prejudice Requirement be Discarded?

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 Shy v Navistar International Corporation, 781 F.3d 820, 2005).

This decision confirms the uncertain state of U.S. law regarding waiving the right to arbitrate. The Federal Arbitration Act (‘FAA’) provides that a court shall stay a court action commenced in the face of a valid arbitration agreement provided that “th [...]

French Court of Cassation Confirms Invalidity of Unilateral (Asymmetrical) Jurisdiction Clauses

On 25 March 2015 the Court of Cassation of France handed down a new decision dealing with the so called “unilateral”, “optional”, “hybrid”, and “asymmetrical” jurisdiction clauses giving choice to one contractual party where to bring action against the other. Earlier in 2012, the same court issued the much discussed Rothschild decision which stated that such jurisdiction clauses are to be deemed invalid as per French law and implicitly supported a line of case law from other countries which treated the issue in the same manner. Now, with its newest judgment, the Court of Cassation in fact confirmed its previous case law and even widened its scope.

The unilateral jurisdiction [...]

Roundtable Report : “Les femmes dans l’arbitrage, Est-ce si différent?”

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm.

In previous posts, contributors have addressed the lack of gender diversity in arbitration. One post discussed the low percentage of women arbitrators in commercial and investment arbitration as well as the inconsistency between the percentage of female law graduates compared to female arbitrators and partners on international arbitration teams. Another blog shed light on the issue from the Brazilian context, and the first Kluwer Arbitration blog poll surveyed its readership for their views on the main factors contrib [...]

Investing in Cryptocurrencies under the Existing Investment Arbitration Regime

Over the past few years, the business community has discovered a new form of investment: this new type of capital formation is broadly known as investment in cryptocurrencies. The capital interest in these investments involves large financial institutions such as investment banks, rating services, assets management and consultancy agencies. According to the CoinDesk, the short list of large financial institutions involved in cryptocurrencies’ include: UBS, JPMorgan, Goldman Sachs, Fitch Ratings, Fortress Investment (Pantera) and Silicon Valley. Τhe total amount of investments in the last two years exceeded hundreds of millions of USD. However, despite this growing interest, the legal natu [...]

The 2016 Global Pound Conference Series!

Global-Pound_mid_-resolution_finalIn April 1976, an event now known as the Pound Conference ignited modern ADR in the USA, launching discussion of what may have become the “greatest reform in the history of the country’s judicial system”.1 Forty years later, all stakeholders in the dispute prevention and resolution fields around the world are being invited to participate in a series of unique thought leadership events around the globe under the auspices of a Global Pound Conference (“GPC”) series.

The GPC has a remarkable goal: to shape the future of dispute resolution and access to justice in the 21st Century.

An invitation to shape the future of dispute resolution

The bold program, which will generate debate an [...]

Are Anti-Suit Injunctions Back on the Menu? Part 2: The CJEU’s Decision in Gazprom

On 13 May 2015, the CJEU handed down judgment in Gazprom (C-536/13). As readers will recall, the case concerns whether an EU court must refuse to give effect to an anti-suit award granted by an EU seated arbitral tribunal on the basis that such a measure is incompatible with EU Regulation 44/2001 (the “Brussels I Regulation”).

The CJEU’s judgment has been much anticipated not only because that point is important, but also because, in December 2014, Advocate General Wathelet (the “AG”) handed down a surprising opinion in which he (retrospectively) deployed Recital 12 of EU Regulation 1215/2012 (the “Recast”) and argued that it overturned the West Tankers prohibition on intra-EU [...]

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