More on Corporate Criticism of International Arbitration
I recently spoke at a conference co-sponsored by the Milan Chamber of Arbitration and the ICC on the occasion of the publication of the new Italian arbitration treatise entitled Commentario Breve al Diritto Dell’Arbitrato Nazionale ed Internazionale (CEDAM 2010) by my colleague Massimo Benedettelli, along with co-authors Claudio Consolo and Luca Radicati di Brozolo. The topic of my panel was general trends in international arbitration.
Although I would have liked to have spoken on a substantive trend in international arbitration, I decided I could not ignore a much bigger, procedural trend that has been the topic of conferences in both the United States and Latin America – that is the [...]
Availability of Arbitrators: What About the Other Objective Data?
When it comes time to identify an arbitrator candidate, be it in the investor-state context or in an international commercial arbitration, there are many factors to consider. One such factor, however, that has been the focus of much attention recently by arbitration institutions, practitioners and commentators alike, is arbitrator availability. It is clearly a sore subject.
In August 2009 the ICC took a major step towards transparency with respect to arbitrators’ availability and workload. As a result of these measures, the ICC now requires ICC arbitrators to complete an ICC Arbitrator Statement of Acceptance, Availability and Independence listing their “currently pending” cases, an [...]
Safety National Casualty Corp. v. Certain Underwriters at Lloyd’s, London:Does the McCarran-Ferguson Act Authorize State Insurance Law to Reverse-Preempt the New York Convention?
In Safety National Casualty Corp. v. Certain Underwriters at Lloyd’s, London, 587 F.3d 714 (5th Cir. 2009), the Fifth Circuit addressed the following question: does the McCarran-Ferguson Act authorize state law prohibiting arbitration agreements in insurance contracts to reverse-preempt the New York Convention or the New York Convention’s implementing legislation (the Federal Arbitration Act, or FAA)? In comparison to the Second Circuit (which had already decided a similar question), the Fifth Circuit held that the New York Convention trumps the state law in this instance, thereby permitting compulsion under an arbitration agreement.
The McCarran-Ferguson Act proscribes Acts of th [...]
The Consequences Of Market Intervention
Following the flurry of arbitrations initiated by investors against Argentina based upon Argentine government actions during that country’s 2001-2002 economic crisis, one might have expected the U.S. government’s extensive market interventions during the 2008 global financial crisis to lead similarly to investor claims. The United States bailed out Fannie Mae and Freddie Mac, in the process acquiring the right to dilute significantly the companies’ existing shares. It also provided large sums of capital to several U.S. banks and car manufacturers. But foreign investor claims have yet to materialize (at least not publicly). While a variety of factors may be at work, the absence of s [...]
Israel’s Settlement of UN Claim Involving Gaza
International claims settlement involves a number of challenges that are relevant for the international arbitration community, including fact-finding and burden of proof, principles of State responsibility, treaty interpretation and damages under international law. One recent development of note involves Israel’s recent settlement of a claim brought by the United Nations.
In July 2009, the United Nations submitted to the Ministry of Foreign Affairs of Israel a claim for reimbursement for the losses that the United Nations sustained in a number of incidents that occurred during the Gaza conflict between December 2008 to January 19, 2009. As a result of discussions that took place betwee [...]
Just Published: The Future of Investment Arbitration (ITA-ASIL, Oxford Press), Edited by Catherine A. Rogers and Roger P. Alford
Dedicated to the late Thomas Wälde, The Future of Investment Arbitration examines some of the current pressures on investment arbitration and looks toward the future of the system as a whole. The authors address issues such as gaps in the procedural rules, the lack of development in certain substantive areas of international investment law, inconsistencies in decision-making and public policy concerns.
Part One: Adequacy of Existing Rules for Investor-State Arbitration
Gary Born and Ethan Shenkman provide a comparative analysis of confidentiality and transparency issues in commercial and investment arbitration, and propose an approach that strikes a balance between the competing [...]
