CONFIDENTIALITY: Not To Be Overlooked When Drafting the Arbitration Clause
Over the years, many arguments have been made for what are truly the benefits of international arbitration over local litigation. There are many factors that are listed and ensuing arguments over their continued veracity. Complaints are launched about whether such factors truly remain a benefit (the largest and most obvious one which comes to mind is costs, but that horse has been beaten enough).
I attended the local Netherlands Chapter meeting for the Chartered Institute of Arbitrators on Tuesday evening in The Hague. I will not provide a recount of this meeting with its intriguing presentation from Peter Rees, Legal Director of Royal Shell plc as the Paris Journal of International Arbitra [...]
What if Spain sued Argentina on behalf of Repsol?
This week, Spanish energy firm Repsol put Argentina on notice of an arbitration claim under the Spain-Argentina bilateral investment treaty. The development comes as no surprise, as Repsol had been threatening for some weeks to take such a course if Argentina persisted in nationalizing the bulk of Repsol’s 57% stake in the Argentine firm YPF.
But am I the only person who was wondering whether Spain might step forward to sue Argentina on behalf of Repsol?
To be sure, a state-to-state claim would swim against the tide of conventional wisdom. After all, modern Bilateral Investment Treaties contain investor-to-state arbitration clauses precisely so that investors can fight their own legal bat [...]
NLRB Opens a New Chapter in Class Arbitration Saga
The United States Supreme Court’s decision in AT&T v. Concepcion last April appeared to signal the demise of class arbitration in the United States. That decision upheld a consumer contract arbitration agreement that waived the consumer’s right to initiate a class action lawsuit or arbitration. In its recent D.R. Hutton v. Cuda decision (Case 12-CA-25764), however, the National Labor Relations Board (the “Board”) has opened a new chapter in the class arbitration saga by ruling that certain class waivers in employee arbitration agreements violate the National Labor Relations Act (“NLRA”). This ruling will almost certainly be appealed to a federal court of appeals and may reach [...]
Fast-track arbitrations can be slow to get rolling
It looks like The Amazing Kreskin can rest easy.
Last August, I tried my hand at forecasting the future, and I’m not sure I brought credit to the field of prognostication.
In my earlier blog post, I’d commented on a novel state-to-state arbitration initiated by the United States against the Republic of Guatemala.
(The U.S. accuses Guatemala of failing to enforce its own labour laws, thus placing the latter country in possible violation of its obligations under the labour chapter of the U.S.-Central American Free Trade Agreement (CAFTA).)
After looking at the fast-track arbitration sketched out in CAFTA Chapter 20, I predicted that the arbitral proceeding might be wrapped up in as little [...]
How and How? The two most commonly asked questions
I am frequently approached by young up and coming lawyers who want to break into the international arbitration arena or seasoned veterans seeking to make a transition into this dynamic and culturally diverse legal field. They all have the same questions – how do we truly enter the field? And how can it truly be different than domestic litigation and arbitration? Both are very good questions.
What it is not is claiming that you work in a field without actually doing so. How many law firm websites – how many lawyers – claim expertise in this area but when you speak with them, you must wonder whether they have ever seen an international arbitration (commercial or investor-state). What the [...]
Third-Party Funding in Arbitration: Innovations and Limits in Self-Regulation (Part 2 of 2)
Yesterday’s post set the stage by describing the main provisions of a new voluntary Code of Conduct for “funding of resolution of disputes within England and Wales,” released in November 2011. Today’s post examines criticisms of that initiative from several corners, and notes important questions that persist in the arbitration arena, including issues surrounding the obligations of disclosure.
Despite the novelty and best intentions of the U.K. initiative, the Code has been strongly criticized both for its non-binding character and its lack of detail. Both the U.S. Chamber of Commerce’s Institute for Legal Reform (“ILR”) and the European Justice Forum (“EJF”) have expressed [...]
