International Commercial Arbitration Posts
At this year’s Annual Meeting on May 20, members of The American Law Institute voted to approve the Proposed Final Draft of Restatement of the Law, The U.S. Law of International Commercial and Investor–State Arbitration. Yesterday’s vote marks the completion of this project.
This brief introduction depicts the development of international arbitration in the United States, as general background to the present Restatement of the U.S. Law of International Commercial and Investor–State Arbitration. It highlights what may be regarded as “milestones” in the development of international arbitration law in the United States.
In this video, project Reporters discuss what to expect from this year’s Proposed Final Draft for Restatement of the Law, The U.S. Law of International Commercial and Investor-State Arbitration.
At its meeting in Philadelphia on January 17 and 18, the ALI Council reviewed drafts for six projects. Drafts or portions of drafts for six projects received Council approval, subject to the meeting discussion and to the usual prerogative to make nonsubstantive editorial improvements.
Opinion Analysis: Kavanaugh’s First Opinion Rejects Vague Exception Limiting Enforcement of Arbitration AgreementsRonald Mann
The justices’ first opinion day of 2019 brought the first opinion from Justice Brett Kavanaugh, writing for a unanimous court in Henry Schein Inc. v. Archer & White Sales Inc. The case is the most recent in a decade-long string of opinions under the Federal Arbitration Act, in which the Supreme Court consistently has reversed lower-court decisions refusing to enforce arbitration agreements.
The November argument session begins with yet another case under the Federal Arbitration Act — Henry Schein Inc. v. Archer & White Sales Inc. With Henry Schein, New Prime Inc. v. Oliveira (from October) and Lamps Plus Inc. v. Varela (later on Monday morning), the court will have three FAA cases under its belt before the first of November – almost a match for the Armed Career Criminal Act!
Parties to international contracts have long chosen arbitration as the preferred method to resolve disputes; among other reasons, it provides them with a neutral decision-maker, rather than the home courts of either party, and international arbitration awards are more easily enforced than court judgments because of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (commonly known as the New York Convention), which celebrates its 60th anniversary this year. Moreover, a web of more than 3000 bilateral and multilateral investment treaties offers arbitration if an investor believes that the state has violated a promise under that treaty, and the number of such investor-state arbitrations has grown significantly.
This is the second post presenting Sections from the 2018 International Commercial and Investment Arbitration Annual Meeting draft that deals with the roles that courts might play during the pendency of international arbitral proceedings. The previous post presented the Black Letter and Comments from § 3-2, Court Appointment and Removal of Arbitrators.
On May 21, ALI membership will be presented with Tentative Draft No. 6 of the Restatement of the Law, The U.S. Law of International Commercial and Investment Arbitration. This draft includes Chapter 3, which addresses the roles that courts might play during the pendency of international arbitral proceedings.
In the course of its decision in GBF Industria de Gusa S/A v. AMCI Holdings, 850 F.3d 58 (2d Cir. 2017), cert. den., 138 S.Ct. 557 (2017), the U.S. Court of Appeals for the Second Circuit referred to the “confusion” that sometimes accompanies applications to U.S. district courts to reduce arbitration awards to judgment. It went on to provide the following guidance for the avoidance of such confusion in the future:
… we encourage litigants and district courts alike to take care to specify explicitly the type of arbitral award the district court is evaluating (domestic, nondomestic, or foreign), whether the district court is sitting in primary or secondary jurisdiction, and, accordingly, whether the action seeks confirmation of a domestic or nondomestic arbitral award under the district court’s primary jurisdiction or enforcement of a foreign arbitral award under its secondary jurisdiction.