Banks and financial institutions traditionally have favoured litigation over arbitration as the means of resolving international disputes. The reasons often given include: (i) financial disputes typically involve straightforward payment claims and do not involve complex legal questions or fact finding, with the latter more suited for arbitration; (ii) arbitration does not provide for the possibility of default judgments or summary judgments, and as a result arbitration is not as efficient and cost effective as court proceedings; (iii) disputes about the tribunal’s jurisdiction may lead to unnecessary delays; (iv) arbitrators tend to render more equitable decisions than judges; (v) the flexib [...]
Two weeks ago, an LCIA tribunal issued its Award on Remedies in a dispute filed by the U.S. against Canada under the 2006 Softwood Lumber Agreement (SLA). This dispute is interesting in many respects. Most obviously, it is a state-to-state dispute adjudicated under the auspices of the LCIA, more commonly used for commercial arbitration. This is in part a result of the SLA’s genesis as a “mutually agreed solution” under Article 3.6 of the WTO Dispute Settlement Understanding (DSU), attempting to settle six disputes in the WTO (and some more under NAFTA). Although the WTO context of the SLA is clear, and the parties’ notification to the WTO Dispute Settlement Body (DSB) of the mutually agreed [...]
On August 14, 2008, while the armed conflict over Abkhazia and South Ossetia between Georgia and Russia was raging, Georgia filed a request for the indication of provisional measures with the International Court of Justice (ICJ) in The Hague in order to preserve its rights under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) “to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries.” Georgia clearly was losing the military battle with Russia, so it started a judicial fight, profiting from the existence of CERD, a treaty ratified by both parties to the w [...]
To enhance predictability when litigating disputes arising out of international business transactions, the U.S. signed the June 30, 2005 Hague Convention on Choice of Court Agreements (the “Convention”) on January 19, 2009. In the U.S., such clauses are typically referred to as forum selection clauses, which are almost always included in contracts arising out of international business transactions.
The Convention, adopted after 13 years of difficult negotiations by members of The Hague Conference on Private International Law (“The Hague Conference”), seeks to bolster the enforceability of exclusive choice of court agreements and, importantly, the international recognition and enforcement [...]
The American Society of International Law is pleased to join a number of organizations and institutions contributing to this on-line discussion of current issues in international arbitration. We have long provided a forum for the international arbitration community to come together and share ideas-in print, at our meetings, or on line-and we consider this new Kluwer blog initiative another great opportunity to foster discussion and debate on the issues of the day.
Among the most valuable ASIL forums is our Annual Meeting each year a must-go event for international lawyers–and the 2009 meeting will be no exception. Convened under the theme “International Law as Law,” the March [...]