International Commercial Arbitration Posts

A recent case before the Florida Supreme Court has found that the incorporation by reference of the American Arbitration Association (AAA) arbitration rules in Airbnb’s Terms of Service constitutes clear and unmistakable evidence of the parties’ intent to delegate questions of arbitrability away from the court and to the arbitrator.

The United States Supreme Court granted certiorari in two cases—ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401, and AlixPartners, LLP v. Fund for Prot. of Investors’ Rights in Foreign States, No. 21-518—to determine whether the discretion granted to district courts under 28 U.S.C. § 1782 (“Section 1782”) to render assistance in gathering evidence for use in a “foreign or international tribunal” includes seeking evidence in aid of private commercial arbitrations or treaty-based arbitrations.

An article in The National Law Review assesses the varying actions taken by States pursuant of public health goals for Covid-19, and if, as a result of measures taken, a State has upheld its international law obligations to promote or protect foreign investment. 

Samuel Estreicher, Rex Heinke and Jessica Weisel delve into an upcoming arbitration case before the Supreme Court of the United States that “asks the Court to resolve a circuit split over the role, if any, that federal courts should play in facilitating discovery in foreign arbitrations.”

Disputes arising under international commercial contracts that contain arbitration agreements implicate different systems of law, including the law governing the substance of the dispute, the law governing the agreement to arbitrate, and the law governing the arbitration process, or the “curial law.” In Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb the Supreme Court of the United Kingdom addressed an issue that “has long divided courts and commentators,” both in the United Kingdom and internationally.

A core tenet of the claim that international investment law promotes the rule of law is that it enhances legal certainty for foreign investors. This Chapter seeks to distinguish between tolerable consistency deficiencies in investment treaty arbitration and more structural inconsistencies that are inimical to the rule of law.

Arbitration has been criticized as displacing cases from the public courts and thereby reducing the production of court precedent. Moreover, while arbitral awards might substitute for court precedent, the standard view is that arbitrators have little incentive to issue awards that produce legal rules because such awards mostly benefit parties to future disputes. This Article critically examines both the hypotheses, filling in gaps in existing legal literature and also offering new theoretical and empirical insights for a comprehensive account of arbitration and rule production.

The fraught question of the rights and liabilities of “non-signatories” in arbitration continues to exercise courts and commentators. The Supreme Court, as part of its endless fascination with the arbitral process, recently made its own contribution in the Outokumpu case.