The objective of this post is to help in-house and outside counsel communicate better with each other when addressing the topic of international commercial arbitration. While both may be (highly) conversant on the topic, the perspectives of each are potentially very divergent and true communication between them may be incomplete and ineffective. My desire here is to help bridge the communications gap – with a four letter word no less. The idea is to provide common ground for communicating about disputes and how to best manage them. If done right, the end-user client is better served.
1) Competing approaches
The adage “Where you stand is where you sit” may have no better application [...]
The new Recast Brussels I Regulation, which governs the jurisdiction of courts and the recognition and enforcement of judgments in the Member States of the European Union, has taken the strong position that arbitration will continue to be excluded from its coverage. The Recast Regulation will begin to apply to Member States in January 2015, but its impact on arbitration, particularly the effect of the explanatory provisions in Recital 12, will probably take years of court decisions to clarify. One area that Recital 12 may affect is the use of antisuit injunctions to prevent parallel proceedings in arbitration.
At present, antisuit injunctions to protect arbitration are not permitted in the [...]
One of the most important legal developments in Latin America during the last few decades has been the expansion in the protection of fundamental rights. This has occurred not only with regard to the express recognition of new substantive rights into several national legal systems, but also regarding the creation of procedural remedies geared to ensure the defense of those rights. Some specific procedural vehicles include the writ of amparo -also known as tutela or mandato de segurança-, the habeas data, and more recently, the different types of popular and group actions. These mechanisms have increasingly become the subject of specific constitutional provisions and further statutory regula [...]
There has been a historical antipathy of banks towards arbitration. Banks (and other financial institutions) had no incentive or particular advantage to utilize private and quicker dispute resolution methods, such as mediation and arbitration. Well-run banks will normally be in possession of collateral security before money is made available to lenders or other customers and also the interest rates were appropriate and well above inflation so there was invariably no urgency in resolving disputes quickly, let alone out of court. As a result, all major banking law academics and practitioners would not consider arbitration clauses in banking or finance contract. When such clauses were introduce [...]
It is not uncommon to see the losing party of an ICSID arbitration filing a frivolous request for annulment merely to engage the opposing party in settlement negotiations. Another frequent abuse of ICSID’s annulment mechanism is to attempt to re-litigate the merits at the annulment stage. An annulment proceeding under the ICSID Rules typically takes a couple of years and involves costs similar to those in a regular ICSID proceeding. For this reason, when an annulment request is filed, some opposing parties prefer to reach an early settlement for a discounted amount rather than waiting more time to receive full satisfaction.
In 2006, the ICSID Arbitration Rules were amended to include [...]
Negotiations to establish a Trans-Pacific Partnership (TPP) agreement have been active and ambitious. Following 18 negotiating rounds since 2010, TPP talks now include 12 States, representing nearly 40 percent of global GDP. Scholars have observed that a TPP agreement, given its scale, could provide “staggering” economic benefits as well as a “genuine Asia-Pacific integration track.”
But the TPP negotiations, particularly with respect to the potential inclusion of an investor-State dispute settlement mechanism, have been criticized on policy grounds by certain judges, legislators, scholars, and organizations. As a legal matter, however, it is the criticism of investor-State dispute settl [...]