International Commercial Arbitration Posts
Essentials of International Arbitration Law: Contracts, Courts, and Awards
This March 18 CLE program will cover fundamental concepts in international arbitration while integrating key aspects of the Restatement.
Competence-Competence, Delegation, and the AAA/ICDR Rules
This article argues that the 2021/2022 amendments to the AAA and the ICDR’s arbitration rules reinforces the Restatement’s interpretation of the rules as codifying competence-competence doctrine rather than constituting delegation clauses.
Jettisoning the Principle of Party Autonomy in Modern International Commercial Arbitration: Menace to an Unprecedented Precept
This article explores the complexities surrounding the choice of law in international commercial arbitration by examining scenarios where parties explicitly or implicitly select applicable laws or remain silent on the matter.
Supreme Court Decides Extraterritorial Reach of Civil RICO Claims in Case Involving Foreign Arbitral Award
In a much-discussed decision, the U.S. Supreme Court permitted a Russian judgment creditor’s claims that a U.S. resident had violated the Racketeer Influenced and Corrupt Organizations Act by evading payment of a U.S. judgment enforcing a foreign arbitral award to go forward.
Defrosting Regulatory Chill
Analyzing 25 years of international investment dispute data, this Article’s findings challenge the conventional wisdom that the “ropes” are effective in chilling energy government policies.
Why Can’t We Be FRANDs?: Anti-Suit Injunctions, International Comity, and International Commercial Arbitration in Standard-Essential Patent Litigation
This Note recommends federal courts grant anti-suit injunctions in SEP litigation only under a restrictive test, rather than maintaining the current variation by circuit, and further suggests that Congress should codify this test. In the event of an injunction spiral that might preclude litigation altogether, SSOs should require the parties arbitrate the dispute before experts at the World Intellectual Property Organization. Together, litigation and arbitration can help preserve the interconnected and technologically compatible system currently in place around the world.
SDNY Rules Section 1782 Discovery Unavailable for Use in ICSID Arbitration
On December 19, 2022, the SDNY further restricted the use of Section 1782 discovery by ruling that an ICSID tribunal constituted under the Italy-Panama BIT does not qualify as a “foreign or international tribunal” within the meaning of Section 1782.
U.S. Supreme Court Narrows Availability of Court-Ordered Discovery in Aid of Proceedings before Foreign and International Tribunals
The U.S. Supreme Court has finally spoken on the statutory authority of U.S. federal courts to order discovery in aid of proceedings before foreign and international tribunals.
Courts may not “make up” new procedural rules to favor arbitration
This article was originally published on SCOTUSblog.com on May 24, 2022. In a series of decisions, the Supreme Court has insisted that the Federal Arbitration Act requires courts to put arbitration contracts on “equal footing” with other kinds of contracts.
Who Decides if a Dispute Is Subject to Arbitration?
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.