Law Commons^™

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Engines By Ge, Body By Houdini: State Secrets As A Procedural Restraint To The Resolution Of Disputes, Les Schiefelbein

Les Schiefelbein

Virtually every national government has a state secrets doctrine. The doctrine is best defined as “any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of a government.”

Let me give state secrets some practical context and review how it is applied in the United Kingdom, the United States and France.

The best aviation description of my comments on state secrets is “Engines By GE, Body By Houdini.” The illusionist reference is an aviation descriptor of stealth airplanes whose invisibility to radar detection is like the state secret doctrine …

Reform Of Investor-State Dispute Settlement: Lessons From International Uniform Law, Joshua D H Karton

Joshua Karton

This article argues that significant improvements in the quality and consistency of decision-making in investor-state arbitration can be achieved without taking such drastic (and possibly unachievable) steps as creating a global appellate body or standing international investment court, or enacting a new treaty that codifies the substantive obligations of international investment law for all signatory states. The article draws on the experience of the international uniform law movement to suggest realistic and achievable steps that could nevertheless be effective.

Although investor-state arbitration and uniform law are not entirely analogous, they do share some important similarities. In particular, they share the …

Valuation Standards For Calculating Icsid Awards, Jason A. Pan

Jason A Pan

A common remedy in resolving disputes between foreign investors and their host governments is the award of fair market value as compensation. The International Centre for the Settlement of Investment Disputes (ICSID) is a popular forum for adjudicating such disputes, and since 1997 its caseload has taken off with the onset of globalization. As of 2011, 28% of ICSID cases resulted in an award to the claimant investor. Thus the valuation analysis behind ICSID awards is an important topic for both claimant investors and respondent governments. However, the nature of valuation analysis is that of a subjective and context-specific art …

The More Favorable Regime For Confirming International Arbitral Awards Made In The U.S.: A Choice Within The ‘Overlapping Coverage’ Of Faa Chapters One And Two, Suyash Paliwal

Suyash Paliwal

According to U.S. courts, Chapters One and Two of the Federal Arbitration Act provide “overlapping coverage” over arbitral awards that were made in the U.S. and also fall under the New York Convention. The meaning of “overlapping coverage” under U.S. arbitral law remains unclear, but affects the defeated party’s ability to challenge the conversion of these awards to court judgments and, consequently, the parties’ decision to seat an arbitration in the U.S. According to every Circuit that has addressed the question, when a U.S.-rendered award is domestic, it is subject to summary, challenge-free confirmation under Chapter One if it is …

International Commercial Arbitrators' Approaches To Contractual Interpretation, Joshua D H Karton

Joshua Karton

This article considers the available international arbitral awards that involve interpretation of a contract. It divides the awards according to the applicable substantive law, and concludes that international commercial arbitrators generally follow the interpretive rules prescribed by the laws of civil law jurisdictions, but sometimes depart from common law interpretive methods. When international arbitrators depart from the applicable law, or when they apply general principles of international law or act as amiables compositeurs, they tend to follow a civil law approach. They see discerning the true (subjective) common intention of the parties as the goal of contractual interpretation, and while …

Development And Trends Of The Lex Maritime From International Arbitration Jurisprudence, Russell J. Cortazzo

Russell J. Cortazzo Jr.

The international, maritime industry has been, and remains, remains a paradox of international cooperation and isolation, intense competition and camaraderie. Innovations within the industry are slow to be adopted, but spread rapidly when their commercial benefit is proven. The international maritime arbitration forum is one of those innovations that has taken root and is shifting the balance of maritime power across the globe. The popularity of international maritime arbitration is indicative of the quiet success of the alternative dispute resolution forum. Three factors are frequently attributed to the growth of the maritime arbitration market; the parties respect the proceeding, the …

Goodbye Boiler-Plate: Practical Advice For Drafters Of Domestic And International Arbitration Agreements, Pamela Fulmer, Noel Rodriguez, M. Anderson Berry

M. Anderson Berry

Parties agree to arbitrate disputes because, among other things, arbitration can be quicker and more flexible than judicial proceedings. This leads to advantages that all parties desire: decreased costs and better predictability of outcome. However, problems arise in domestic and international arbitrations that may defeat these advantages. As this article explains, well thought‐out and effective arbitration provisions can significantly reduce the incidence of these problems. While primarily relying on specific examples from the U.S. domestic sphere, this article also applies to the international sphere unless otherwise indicated.

The core assertion of this article is this: instead of cutting and pasting …

In Defense Of The International Treaty Arbitration System, Daniel S. Meyers

Daniel S Meyers

The past two decades have witnessed an explosion of bilateral and multilateral investment treaties, and of arbitration claims brought by private individuals and entities against sovereign States pursuant to such treaties. Indeed, it is fair to characterize the investment treaty arbitration system (the "ITA system") as one of the most rapidly-developing phenomena in international law. And, as occurs in response to every significant development in international law (or law more generally), the recent maturation of the ITA system has been met with a chorus of scholarly criticism and calls for reform. While such critiques can be integral to the healthy …

“To Boldly Go Where No One Has (Arbitrated) Before”:The Star Trek Mythos As An Heuristic Paradigm For Jurisdictional And Arbitration Issues, Antonin I. Pribetic

Antonin I. Pribetic

While the topic of international arbitration has failed to capture the interest of Hollywood producers or television audiences, the science fiction genre yields a serendipitous result. Using an excerpt from a Star Trek: The Next Generation episode, this brief comment analyzes the impact of law and popular culture on the issues of the rule of law, jurisdiction and international (more accurately, "intergalactic") comity within the context of bilateral and multilateral treaty obligations.