International Commercial Arbitration Posts
In his International Arbitration column, John Fellas discusses the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration—a 12-year effort primarily concerned with the role of the U.S. courts with respect to arbitration proceedings. The author describes it as a “majestic, comprehensive, and clear account of the U.S. law of international and investor-state arbitration that belongs on the shelf of everyone involved those fields.”
Argument Analysis: Justices Debate Ability of Business That Did Not Sign Arbitration Agreement to Compel ArbitrationRonald J. Mann
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA is the Supreme Court’s first arbitration case of the 2019 term. For observers familiar with the arbitration docket in recent years, this case will seem unusual, because so few of the justices seem predisposed to compel arbitration.
In a Divergence From Other US Federal Circuits, The US Sixth Circuit Court of Appeals Rules That 28 U.S.C. § 1782 May Permit US Discovery for Use in Non-US Private ArbitrationsCharles E. Harris, II and Kwadwo Sarkodie
In contrast to its sister Circuits, a unanimous three-judge panel of the Sixth Circuit held that the word “tribunal” in the relevant clause of Section 1782 includes private arbitrations. This decision could make it easier for parties engaged in non-US arbitrations to obtain discovery from US entities, particularly those that fall within the Sixth Circuit’s jurisdictional reach.
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.