Many interesting articles in March on arbitration. The abstracts of articles by Thomas V. Burch, Isabelle Liger and Leonila Guglya seem promising. good reading!
Jasminka Kalajdzic, Consumer (In)Justice: Reflections on Canadian Consumer Class Actions
Abstract:
This paper was written on the occasion of the 40th anniversary of the Annual Workshop on Commercial and Consumer Law and as a contribution to a collection of retrospective essays in the 50th volume of the Canadian Business Law Journal. In the paper, I reflect briefly on the impact of collective action on consumer access to courts, and the promised guarantee of effective justice. In the first part of the paper, I summarize the results of an empirical study which asked class action lawyers to identify the categories of cases being litigated, including those that come within the rubric of "consumer protection actions." I then examine two of the more significant advances in consumer rights litigation, namely, the development of the waiver of tort doctrine and the widespread rejection of mandatory arbitration clauses in consumer contracts. In the final part of the paper, I discuss two challenges to achieving substantive justice for consumers that have recently become more pronounced: increasing reliance on cy près distribution of settlements, and the effect of adverse costs awards on representative plaintiffs.
Lawrence A. Cunningham, Rhetoric versus Reality in Arbitration Jurisprudence: How the Supreme Court Flaunts and Flunks Contracts (and Why Contracts Teachers Need Not Teach the Cases)
Abstract:
Supreme Court rhetoric about the role of contracts and contract law in arbitration jurisprudence differs sharply from the reality of its applications. In the name of contracts, the Court administers a self-declared national policy favoring arbitration, a policy directly benefiting the judicial branch of government. This often puts the Court’s preferences ahead of those of contracting parties while declaring its mission as solely to enforce contracts in accordance with contract law. The Court thus cloaks in the rhetoric of volition a policy in tension with constitutionally-pedigreed access to justice and venerable principles of federalism.
This Article documents the rhetoric-reality gap and explores why it exists and why it matters. The rhetoric-reality gap is attributable in part to a dilemma the Court created for itself: its national policy favoring arbitration is constitutionally-suspect unless people assent, yet letting people make what contracts they wish would prevent implementing the national policy. The jurisprudence diminishes the Court’s legitimacy, tempts defiance, creates doctrinal incoherence, and poses other costs. This Article calls for reconciling these conflicting positions rather than sustaining the status quo: the Court should either give up its national policy favoring arbitration and truly respect freedom of contract or come clean about its national policy’s real implications and acknowledge its narrow conception of contract and contract law.
J. J. Spigelman, International Commercial Litigation: An Asian Perspective
Abstract:
This paper focuses on the legal transaction costs which operate as a significant non-tariff barrier to mutually beneficial exchange in trade and investment between nations. It sets out the role, functions and advantages of the international regime for commercial arbitration, based on the UNCITRAL Model Law and the New York Convention for Enforcement of Arbitral Awards. The paper discusses a range of mechanisms to harmonise civil procedure and to enhance co-operation between courts on cross-border issues, including: the Model Principles of Transnational Civil Procedure of the American Law Institute and UNIDROIT; the incidence of venue disputation; the Hague Choice of Court Convention; the UNCITRAL Model Law on Cross-Border Insolvency; the Hague Evidence Convention and Hague Service Convention and the mechanisms for enforcement of foreign judgments. The emergence of a new conception of judicial comity and of an international sense of collegiality in the context of globalisation is discussed.
Catherine A. Rogers, International Arbitration's Public Realm
Abstract:
Domestic arbitration is under attack as permitting repeat players to evade mandatory statutory law, as retarding legal developments, as undermining democratic lawmaking, and ultimately as imposing substantively biased outcomes on less sophisticated parties through contracts of adhesion. Collectively, these critiques of domestic arbitration could be interpreted as suggesting that domestic arbitration seeks to obviate or even subvert public interests and the public realm. The thesis of this chapter is that, in contrast to criticisms of domestic arbitration, international arbitration has a vibrant public realm. International arbitration produces public goods and has the potential to go beyond simply resolving disputes. It can promote international cooperation, improve transnational governance and contribute to the development of an international rule of law.
[Note: paper originally submitted in January but revised and submitted in March]
Robert D. Sloane, On the Use and Abuse of Necessity in the Law of State Responsibility
Abstract:
In an era of crises (economic, environmental, humanitarian, and even existential), the defensive plea of necessity has become a growth industry in the law of state responsibility, spurred in part by the publication of Article 25 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. Recorded incidents suggest that necessity has been raised more times in the past three decades than in the preceding three centuries - in diverse fields ranging widely across the landscape of contemporary international law. Yet recent scholarship focuses almost exclusively on necessity’s role in the distinctive (lex specialis) context of investor-state arbitration. This is understandable because of its significance to recent disputes in the field. But it is also regrettable, for it has to some extent eclipsed more fundamental questions that should be asked about the very concept of necessity in international law, which characteristically lacks the effective institutions and comparatively high degree of normative consensus that enable states to regulate necessity, consistent with the rule of law, in national law.
This Article, first, analyzes the historical evidence for Article 25, which purports to codify the customary definition of necessity; second, argues on the basis of this evidence that at least in terms of the ILC’s formal mandate, Article 25 reflects far more "progressive development" than it does "codification"; third, clarifies several of the most troubling conceptual and institutional problems that necessity raises in general international law - that is, outside of the confines of a treaty regime or other lex specialis; and finally, inquires into the continuing viability, value, and appropriate analysis of necessity in the contemporary international legal order.
I argue, in part, that the modern plea of necessity should rest on foundations that differ fundamentally from those of the existential conception inherited from the law of nations, which privileged the "very existence" of the state qua state. Article 25 modifies, but also builds upon, this partly anachronistic pedigree by borrowing concepts from national criminal law. The often incongruous transposition of these concepts obscures what almost invariably proves to be the real question raised by necessity in the law of state responsibility: who - which state, states, or other international actors - should bear the loss? A categorical answer would be neither plausible nor desirable. International law should instead contextualize the inquiry and candidly consider the competing policies and values at stake in the diverse scenarios in which necessity has been, or foreseeably might be, pled. The lodestar of this inquiry should no longer be the formerly paramount "natural" right of states to preserve themselves; it should be a transparent recognition of the difficult tradeoffs required by the - sometimes mutually exclusive - global policies, social interests, and human rights recognized by contemporary international law.
Michael H. LeRoy, Are Arbitrators Above the Law? The 'Manifest Disregard of the Law' Standard
Abstract:
Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law” - a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?
Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act (FAA). Hall Street ruled that courts cannot review awards beyond the FAA’s express terms. The parties’ standard prompted Hall Street to ask whether courts may apply “manifest disregard of the law,” even though it is not in the FAA. Inscrutably, Hall Street answered: “Maybe the term ‘manifest disregard’ was meant to name a new ground for review, but maybe it merely referred to the [FAA’s] § 10 grounds collectively, rather than adding to them.”
I analyze “manifest disregard” by using historical and empirical methods. Common law courts vacated awards for “fraud,” “corruption,” “partiality,” or if arbitrators “exceeded powers.” The FAA enumerates these as grounds to vacate awards. In the same sequence with these terms, nineteenth century courts vacated awards for “manifest mistake” or “palpable mistake” of the law. I contend that Congress inadvertently omitted “manifest disregard” from the FAA. To answer Hall Street’s equivocation: “Manifest disregard of the law” is part of the FAA.
This sets the stage for my empirical question: Has Hall Street led courts to confirm more awards, thus promoting finality? The answer is yes. In 46.4% of federal cases and 21.8% of state cases, parties in my database argued that an award manifestly disregarded the law. Still, state appellate courts confirmed more employment awards after Hall Street was decided on March 3, 2008 - 88.9% (16/18), compared to 70.9% (73/103) from 1975 until Hall Street. Federal district courts confirmed 93.7% of awards (164/175) before Hall Street, and 90.9% (30/33) after. Federal appeals courts confirmed awards at a high rate before and after Hall Street (87.8% and 85.7%).
Unfortunately, Hall Street’s muddled analysis has split federal circuits. The Fifth and Eleventh Circuits ruled that Hall Street ended “manifest disregard,” but the Second, Sixth, and Ninth Circuits still treat it as part of the FAA. The First, Third, Fourth, and Tenth Circuits avoided ruling on the standard. In addition, state courts have differed in their reactions to Hall Street.
This fractured approach implies that the Supreme Court may reconsider its vague treatment of “manifest disregard.” The Court should affirm this standard. My findings show that review for “manifest disregard” does not erode finality. The standard translates to nanoscale review of awards. As one court put it: “There is...a way to understand ‘manifest disregard of the law’ that preserves the established relation between court and arbitrator...It is this: an arbitrator may not direct the parties to violate the law.” Judges have applied this concept for two centuries to ensure that private tribunals conform to the laws. This rationale is particularly relevant because so much arbitration has changed from a voluntary to mandatory process. Judicial review must be allowed to correct an arbitrator’s intentional flouting of the law. If “manifest disregard” is eliminated, arbitral finality will rise above the crowning principle of the American constitutional system: “No man in this country is so high that he is above the law.” (U.S. v. Lee, 106 U.S. 196, 220 (1882)).
[Note: paper originally submitted in February but revised and submitted in March]
Jasminka Kalajdzic, Consumer (In)Justice: Reflections on Canadian Consumer Class Actions
Abstract:
This paper was written on the occasion of the 40th anniversary of the Annual Workshop on Commercial and Consumer Law and as a contribution to a collection of retrospective essays in the 50th volume of the Canadian Business Law Journal. In the paper, I reflect briefly on the impact of collective action on consumer access to courts, and the promised guarantee of effective justice. In the first part of the paper, I summarize the results of an empirical study which asked class action lawyers to identify the categories of cases being litigated, including those that come within the rubric of "consumer protection actions." I then examine two of the more significant advances in consumer rights litigation, namely, the development of the waiver of tort doctrine and the widespread rejection of mandatory arbitration clauses in consumer contracts. In the final part of the paper, I discuss two challenges to achieving substantive justice for consumers that have recently become more pronounced: increasing reliance on cy près distribution of settlements, and the effect of adverse costs awards on representative plaintiffs.
Lawrence A. Cunningham, Rhetoric versus Reality in Arbitration Jurisprudence: How the Supreme Court Flaunts and Flunks Contracts (and Why Contracts Teachers Need Not Teach the Cases)
Abstract:
Supreme Court rhetoric about the role of contracts and contract law in arbitration jurisprudence differs sharply from the reality of its applications. In the name of contracts, the Court administers a self-declared national policy favoring arbitration, a policy directly benefiting the judicial branch of government. This often puts the Court’s preferences ahead of those of contracting parties while declaring its mission as solely to enforce contracts in accordance with contract law. The Court thus cloaks in the rhetoric of volition a policy in tension with constitutionally-pedigreed access to justice and venerable principles of federalism.
This Article documents the rhetoric-reality gap and explores why it exists and why it matters. The rhetoric-reality gap is attributable in part to a dilemma the Court created for itself: its national policy favoring arbitration is constitutionally-suspect unless people assent, yet letting people make what contracts they wish would prevent implementing the national policy. The jurisprudence diminishes the Court’s legitimacy, tempts defiance, creates doctrinal incoherence, and poses other costs. This Article calls for reconciling these conflicting positions rather than sustaining the status quo: the Court should either give up its national policy favoring arbitration and truly respect freedom of contract or come clean about its national policy’s real implications and acknowledge its narrow conception of contract and contract law.
J. J. Spigelman, International Commercial Litigation: An Asian Perspective
Abstract:
This paper focuses on the legal transaction costs which operate as a significant non-tariff barrier to mutually beneficial exchange in trade and investment between nations. It sets out the role, functions and advantages of the international regime for commercial arbitration, based on the UNCITRAL Model Law and the New York Convention for Enforcement of Arbitral Awards. The paper discusses a range of mechanisms to harmonise civil procedure and to enhance co-operation between courts on cross-border issues, including: the Model Principles of Transnational Civil Procedure of the American Law Institute and UNIDROIT; the incidence of venue disputation; the Hague Choice of Court Convention; the UNCITRAL Model Law on Cross-Border Insolvency; the Hague Evidence Convention and Hague Service Convention and the mechanisms for enforcement of foreign judgments. The emergence of a new conception of judicial comity and of an international sense of collegiality in the context of globalisation is discussed.
Catherine A. Rogers, International Arbitration's Public Realm
Abstract:
Domestic arbitration is under attack as permitting repeat players to evade mandatory statutory law, as retarding legal developments, as undermining democratic lawmaking, and ultimately as imposing substantively biased outcomes on less sophisticated parties through contracts of adhesion. Collectively, these critiques of domestic arbitration could be interpreted as suggesting that domestic arbitration seeks to obviate or even subvert public interests and the public realm. The thesis of this chapter is that, in contrast to criticisms of domestic arbitration, international arbitration has a vibrant public realm. International arbitration produces public goods and has the potential to go beyond simply resolving disputes. It can promote international cooperation, improve transnational governance and contribute to the development of an international rule of law.
[Note: paper originally submitted in January but revised and submitted in March]
Robert D. Sloane, On the Use and Abuse of Necessity in the Law of State Responsibility
Abstract:
In an era of crises (economic, environmental, humanitarian, and even existential), the defensive plea of necessity has become a growth industry in the law of state responsibility, spurred in part by the publication of Article 25 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. Recorded incidents suggest that necessity has been raised more times in the past three decades than in the preceding three centuries - in diverse fields ranging widely across the landscape of contemporary international law. Yet recent scholarship focuses almost exclusively on necessity’s role in the distinctive (lex specialis) context of investor-state arbitration. This is understandable because of its significance to recent disputes in the field. But it is also regrettable, for it has to some extent eclipsed more fundamental questions that should be asked about the very concept of necessity in international law, which characteristically lacks the effective institutions and comparatively high degree of normative consensus that enable states to regulate necessity, consistent with the rule of law, in national law.
This Article, first, analyzes the historical evidence for Article 25, which purports to codify the customary definition of necessity; second, argues on the basis of this evidence that at least in terms of the ILC’s formal mandate, Article 25 reflects far more "progressive development" than it does "codification"; third, clarifies several of the most troubling conceptual and institutional problems that necessity raises in general international law - that is, outside of the confines of a treaty regime or other lex specialis; and finally, inquires into the continuing viability, value, and appropriate analysis of necessity in the contemporary international legal order.
I argue, in part, that the modern plea of necessity should rest on foundations that differ fundamentally from those of the existential conception inherited from the law of nations, which privileged the "very existence" of the state qua state. Article 25 modifies, but also builds upon, this partly anachronistic pedigree by borrowing concepts from national criminal law. The often incongruous transposition of these concepts obscures what almost invariably proves to be the real question raised by necessity in the law of state responsibility: who - which state, states, or other international actors - should bear the loss? A categorical answer would be neither plausible nor desirable. International law should instead contextualize the inquiry and candidly consider the competing policies and values at stake in the diverse scenarios in which necessity has been, or foreseeably might be, pled. The lodestar of this inquiry should no longer be the formerly paramount "natural" right of states to preserve themselves; it should be a transparent recognition of the difficult tradeoffs required by the - sometimes mutually exclusive - global policies, social interests, and human rights recognized by contemporary international law.
Michael H. LeRoy, Are Arbitrators Above the Law? The 'Manifest Disregard of the Law' Standard
Abstract:
Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law” - a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?
Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act (FAA). Hall Street ruled that courts cannot review awards beyond the FAA’s express terms. The parties’ standard prompted Hall Street to ask whether courts may apply “manifest disregard of the law,” even though it is not in the FAA. Inscrutably, Hall Street answered: “Maybe the term ‘manifest disregard’ was meant to name a new ground for review, but maybe it merely referred to the [FAA’s] § 10 grounds collectively, rather than adding to them.”
I analyze “manifest disregard” by using historical and empirical methods. Common law courts vacated awards for “fraud,” “corruption,” “partiality,” or if arbitrators “exceeded powers.” The FAA enumerates these as grounds to vacate awards. In the same sequence with these terms, nineteenth century courts vacated awards for “manifest mistake” or “palpable mistake” of the law. I contend that Congress inadvertently omitted “manifest disregard” from the FAA. To answer Hall Street’s equivocation: “Manifest disregard of the law” is part of the FAA.
This sets the stage for my empirical question: Has Hall Street led courts to confirm more awards, thus promoting finality? The answer is yes. In 46.4% of federal cases and 21.8% of state cases, parties in my database argued that an award manifestly disregarded the law. Still, state appellate courts confirmed more employment awards after Hall Street was decided on March 3, 2008 - 88.9% (16/18), compared to 70.9% (73/103) from 1975 until Hall Street. Federal district courts confirmed 93.7% of awards (164/175) before Hall Street, and 90.9% (30/33) after. Federal appeals courts confirmed awards at a high rate before and after Hall Street (87.8% and 85.7%).
Unfortunately, Hall Street’s muddled analysis has split federal circuits. The Fifth and Eleventh Circuits ruled that Hall Street ended “manifest disregard,” but the Second, Sixth, and Ninth Circuits still treat it as part of the FAA. The First, Third, Fourth, and Tenth Circuits avoided ruling on the standard. In addition, state courts have differed in their reactions to Hall Street.
This fractured approach implies that the Supreme Court may reconsider its vague treatment of “manifest disregard.” The Court should affirm this standard. My findings show that review for “manifest disregard” does not erode finality. The standard translates to nanoscale review of awards. As one court put it: “There is...a way to understand ‘manifest disregard of the law’ that preserves the established relation between court and arbitrator...It is this: an arbitrator may not direct the parties to violate the law.” Judges have applied this concept for two centuries to ensure that private tribunals conform to the laws. This rationale is particularly relevant because so much arbitration has changed from a voluntary to mandatory process. Judicial review must be allowed to correct an arbitrator’s intentional flouting of the law. If “manifest disregard” is eliminated, arbitral finality will rise above the crowning principle of the American constitutional system: “No man in this country is so high that he is above the law.” (U.S. v. Lee, 106 U.S. 196, 220 (1882)).
[Note: paper originally submitted in February but revised and submitted in March]
Zev J. Eigen and David Sherwyn, A Moral Contractual Approach to Labor Law Reform: A Template for Using Ethical Principles to Regulate Behavior Where Law Failed to Do So Effectively
Abstract:
If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative – offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties’ reciprocal contractual obligations, and (4) moral means of self-regulation derived from contract are more likely to be effective when parties have ongoing relationships like those between management and labor organizations. The paper explains how the current law and proposed amendments fail because they focus on fairness as a function of union win rates, and then outlines a plan to leverage strong moral contractual obligations and related norms of behavior to create as fair a process as possible for employees to vote unions up or down.
S.I. Strong, Does Class Arbitration 'Change the Nature' of Arbitration? Stolt-Nielsen and First Principles
Abstract:
In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., the United States Supreme Court stated that class arbitration “changes the nature of arbitration.” Certainly class proceedings do not resemble the traditional view of arbitration as a swift, simple and pragmatic bilateral procedure with few witnesses, documents or formalities, but do these types of large-scale disputes violate the fundamental nature of the arbitral procedure? This article answers that question by considering the jurisprudential nature of arbitration and determining whether and to what extent class arbitration fails to meet the standards necessary for a process to qualify as “arbitration.” During the course of the discussion, the article analyzes the ways in which class arbitration differs from other forms of multiparty arbitration and investigates whether a form of “quasi-arbitration” is in the process of developing as a means of responding to the demands of class proceedings.
Zev J. Eigen , Nicholas Menillo and David Sherwyn, Shifting the Paradigm of the Debate: A Proposal to Eliminate At-Will Employment and Implement a 'Mandatory Arbitration Act'
Abstract:
This article recasts the debate over mandatory arbitration of employment disputes as a discussion of the need to overhaul some critical elements of the way in which workplace rights disputes are adjudicated. Efforts to overhaul the system such as the Arbitration Fairness Act perpetuate the status quo of unjust cost-driven exploitation by law-breaking employers and employees alike. The authors provide an alternative two-part solution. First, we propose a "Mandatory Arbitration Act" that attempts to remedy legitimate problems like forum privacy that increase bad employers' abilities to hide from the law, while retaining significant benefits of pre-dispute arbitration like flexibility, speed, and reduced costs which augment access to justice for low wage earners. Second, we propose that employees engaged in interstate commerce can be terminated only if there is cause for the termination or severance pay given in lieu thereof. The article outlines a new employment standard that will provide employees with protection, allow employers to operate with greater certainty, and restore creditability and accountability to discrimination law.
[Note: paper originally submitted in February but revised and submitted in March]
Amar Gupta Sr. , Deth Sao and David A. Gantz, Disputes Related to Healthcare Across National Boundaries: The Potential for Arbitration
Abstract:
Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health services; and (4) enforcement of foreign judgments. Such legal uncertainties and ambiguities call for a uniform means of redress that is more flexible and predictable than litigation in a court room. Given such needs, arbitration offers a potential solution, as it is a private streamlined adjudication process that has been successfully utilized on an international level to resolve several of the above mentioned legal quandaries. The voluntary, flexible, and legally binding nature of arbitration agreements across jurisdictions makes this form of dispute resolution more efficient and adaptive to changes in the health services industry than litigation. With careful construction of an approach that accounts for arbitration costs, reasonable recovery amounts, and complementary mechanisms such as no-fault compensation, international arbitration of medical malpractice disputes will reallocate the legal risks borne by businesses and consumers more fairly and efficiently.
Thomas V. Burch, Regulating Mandatory Arbitration
Abstract:
Over the last twenty-five years, the Supreme Court has relied on party autonomy and the national policy favoring arbitration to expand the Federal Arbitration Act’s scope beyond Congress’s original intent. Choosing these loaded premises has allowed the Court to reach the outcomes it desires while denying that it is making any political or moral judgments in its decisions – a type of bureaucratic formalism. One controversial outcome of the Court’s formalism, overall, has been the increased prevalence of mandatory arbitration. Although it reduces judicial caseloads and lowers companies’ dispute-resolution costs, it also restricts or eliminates individual rights and reduces public regulation of the companies that require it. The Court has supported the spread of mandatory arbitration despite these negative effects.
Because of the Court’s support, the parties being subjected to mandatory arbitration began asking lower courts for relief through the unconscionability doctrine in the early 1990s. And because the unconscionability doctrine could not provide the wide-scale relief they wanted, they also turned to Congress, convincing its members to introduce 139 anti-arbitration bills since 1995 – the majority of which proposed eliminating mandatory arbitration. A review of these efforts, including an original survey of these bills, reveals that these parties have been disregarding mandatory arbitration’s public benefits in favor of a rights-oriented, liberal approach that rejects regulation as a possible way to improve mandatory arbitration’s overall fairness.
This Article shows that both the Supreme Court’s and the reform advocates’ approaches to mandatory arbitration are flawed. It makes more sense, at least for now, to continue mandatory arbitration’s use while improving its overall fairness through legislative or agency regulation. Regulating mandatory arbitration with the goal of improving its fairness is consistent with pragmatic principles and is superior to the Supreme Court’s formalism and the reform advocates’ liberalism in the current mandatory-arbitration context. Taking this approach will allow us to study mandatory arbitration over time before deciding whether to eliminate it – a fair way to proceed given the importance of the rights at stake and the positive effects that mandatory arbitration can (possibly) have on the public good.
[Note: The abstract seems promising. Note the fact that for the past 15 years there have been about 139 bills initiated in the US against mandatory arbitration]
Chetan Phull, U.S. Anti-Suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask
Abstract:
International arbitration is an increasingly popular dispute resolution mechanism, however, the threat of foreign court intervention unremittingly remains. It is therefore important for a party seeking to enforce an arbitration agreement to know which jurisdictions are most amenable to protecting arbitration agreements, and what courts in these jurisdictions consider material in deciding whether to issue an anti-suit injunction (ASI) against the party seeking to sidestep arbitration through a foreign court order. In the United States, courts in certain jurisdictions in particular have shown a willingness to protect arbitration agreements through ASIs, in the presence of certain factors. The author has uncovered five fact-specific questions from the case law produced by these courts that are material to the courts’ issuance of ASIs. In the abstract, the questions consider: actual refusal to arbitrate and parallel foreign litigation; recognition and enforcement of an arbitration award enjoined by a “competent authority” under the New York Convention; the res judicata effect of U.S. judgments; the strong public policy in favor of arbitration; and bad faith by the party seeking to hinder arbitration. The additional element of whether an ASI to enforce an arbitration agreement is requested from an offensive versus defensive position is also considered in the discussion of the five questions.
Andrew Newcombe , Markus Gehring and Marie-Claire Cordonier Segger, Introduction to ‘Sustainable Development in World Investment Law’
Abstract:
This volume builds upon previous research on sustainable development in international trade law and policy, published in Sustainable Development in World Trade Law. The volume’s goal is to analyse the state of international investment law through the lens of sustainable development and to clarify how international investment law can contribute to sustainable development. The various chapters in the volume identify, characterize, and analyse existing rules, innovations, and best practices in international investment agreements, including the investment measures used by other sustainable development treaties and instruments.
The volume proceeds in four parts. Part I establishes the foundations. Part II of the volume addresses the procedural and substantive dimension of sustainable development in international investment law. Part III is divided into two sections. The first section examines emerging issues and proposals. The second section examines how investment can be promoted through sustainable development treaties in general, followed by chapters on climate change, and biodiversity treaties, as well as treaties concerning water use and shared river regimes. Part IV provides the conclusions, which draw out the themes from this volume and provide a research agenda for the future in this emerging and important area.
Kristen Blankley, Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case
Abstract:
As the alternative dispute resolution field has grown, parties have designed their own processes from established processes in an attempt to best serve their process needs. One such hybrid process is mediation-arbitration, called “med-arb” for short. Med-arb involves a single neutral who first serves as a mediator, and, if the parties reach impasse in mediation, the neutral then serves as an arbitrator to resolve the dispute. Although the literature has given some attention to the benefits and drawbacks of med-arb, this Article examines the process in light of broad mediation confidentiality and privilege statutes. Because these laws have no exceptions for med-arb, parties who seek to utilize this process must execute careful waivers to avoid the possibility that any resulting arbitration award later be vacated by the courts.
Dinah L. Shelton, Form, Function, and the Powers of International Courts
Abstract:
At the end of the nineteenth century, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration. Since then, numerous courts and tribunals have been created on the international stage. This Article examines the interplay of form, function, and the powers exercised by international courts. It first considers the functions or attributes of any institution that carries the name "court" or "tribunal" and reflects upon whether there are powers that must be deemed inherent in such an institution to allow it to fulfill the judicial function, irrespective of limitations placed on the court's jurisdiction or the type of proceedings it conducts. The Article then identifies four specific functions that states have expressly delegated to international courts. The conclusion suggests that courts, litigants, and scholars still may usefully examine any exercise of international judicial powers by considering the function of the court and asking whether the power is one inherent to all courts, expressly conferred on the particular court, or reasonably implied from an express or inherent power.
Nancy Welsh, Integrating ‘Alternative’ Dispute Resolution into Bankruptcy: As Simple (and Pure) as Motherhood and Apple Pie?
Abstract:
Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a lawyer’s ability to provide her clients with competent advice regarding the appropriate application of these procedures; (2) impairment of a lawyer’s ability to suggest new dispute resolution hybrids that are both creative and implementable; (3) inappropriate use of dispute resolution procedures, adversely affecting clients, third party beneficiaries/victims, sponsoring institutions, and the integrity of dispute resolution as a field; (4) inadequate regulation, monitoring, and use of dispute resolution procedures; (5) the temptation of some lawyers, clients, and institutions to make intentionally inappropriate and even unethical use of dispute resolution procedures; and (6) new, and sometimes entirely unnecessary, satellite litigation arising out of the use of dispute resolution procedures. Meanwhile, the current ethics rules for lawyers, which are based largely on the American Bar Association’s Model Rules of Professional Conduct and are supposed to provide some sort of an ethical and professional brake upon “sharp practices” by lawyers, are either so ambiguous or so insufficient in their treatment of “non-adjudicative” dispute resolution procedures that they may invite bad behavior by clever clients or their lawyers. This Article tells two tales – one hypothetical, the other the real story that inspired the hypothetical – that illustrate many of the negative effects described supra.
While now is the time to advocate for the increased use of dispute resolution procedures in bankruptcy and foreclosure matters, now is also the time to demand more stringent education and regulation of lawyers to assist them in making sufficiently knowledgeable, skillful and ethical use of “alternative” dispute resolution procedures, especially in the court-connected context. Law schools, meanwhile, play an essential role in educating students regarding existing dispute resolution procedures and their application, but law schools are much more likely to incorporate such material into their curricula if bar exams test for future lawyers’ knowledge and thoughtful application of these procedures. Last, the Model Rules of Professional Conduct and states’ ethics rules for lawyers should be updated to respond to the many ethical ambiguities that currently haunt non-adjudicative court-connected dispute resolution.
Leonila Guglya, International Review of Decisions Concerning Recognition and Enforcement of Foreign Arbitral Award: A Threat to the Sovereignty of the States or an Overestimated Hazard (so far)? (With Emphasis on the Developments within the International Investment Arbitration Setting)
Abstract:
Over the last twenty-five years, the Supreme Court has relied on party autonomy and the national policy favoring arbitration to expand the Federal Arbitration Act’s scope beyond Congress’s original intent. Choosing these loaded premises has allowed the Court to reach the outcomes it desires while denying that it is making any political or moral judgments in its decisions – a type of bureaucratic formalism. One controversial outcome of the Court’s formalism, overall, has been the increased prevalence of mandatory arbitration. Although it reduces judicial caseloads and lowers companies’ dispute-resolution costs, it also restricts or eliminates individual rights and reduces public regulation of the companies that require it. The Court has supported the spread of mandatory arbitration despite these negative effects.
Because of the Court’s support, the parties being subjected to mandatory arbitration began asking lower courts for relief through the unconscionability doctrine in the early 1990s. And because the unconscionability doctrine could not provide the wide-scale relief they wanted, they also turned to Congress, convincing its members to introduce 139 anti-arbitration bills since 1995 – the majority of which proposed eliminating mandatory arbitration. A review of these efforts, including an original survey of these bills, reveals that these parties have been disregarding mandatory arbitration’s public benefits in favor of a rights-oriented, liberal approach that rejects regulation as a possible way to improve mandatory arbitration’s overall fairness.
This Article shows that both the Supreme Court’s and the reform advocates’ approaches to mandatory arbitration are flawed. It makes more sense, at least for now, to continue mandatory arbitration’s use while improving its overall fairness through legislative or agency regulation. Regulating mandatory arbitration with the goal of improving its fairness is consistent with pragmatic principles and is superior to the Supreme Court’s formalism and the reform advocates’ liberalism in the current mandatory-arbitration context. Taking this approach will allow us to study mandatory arbitration over time before deciding whether to eliminate it – a fair way to proceed given the importance of the rights at stake and the positive effects that mandatory arbitration can (possibly) have on the public good.
[Note: The abstract seems promising. Note the fact that for the past 15 years there have been about 139 bills initiated in the US against mandatory arbitration]
Chetan Phull, U.S. Anti-Suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask
Abstract:
International arbitration is an increasingly popular dispute resolution mechanism, however, the threat of foreign court intervention unremittingly remains. It is therefore important for a party seeking to enforce an arbitration agreement to know which jurisdictions are most amenable to protecting arbitration agreements, and what courts in these jurisdictions consider material in deciding whether to issue an anti-suit injunction (ASI) against the party seeking to sidestep arbitration through a foreign court order. In the United States, courts in certain jurisdictions in particular have shown a willingness to protect arbitration agreements through ASIs, in the presence of certain factors. The author has uncovered five fact-specific questions from the case law produced by these courts that are material to the courts’ issuance of ASIs. In the abstract, the questions consider: actual refusal to arbitrate and parallel foreign litigation; recognition and enforcement of an arbitration award enjoined by a “competent authority” under the New York Convention; the res judicata effect of U.S. judgments; the strong public policy in favor of arbitration; and bad faith by the party seeking to hinder arbitration. The additional element of whether an ASI to enforce an arbitration agreement is requested from an offensive versus defensive position is also considered in the discussion of the five questions.
Andrew Newcombe , Markus Gehring and Marie-Claire Cordonier Segger, Introduction to ‘Sustainable Development in World Investment Law’
Abstract:
This volume builds upon previous research on sustainable development in international trade law and policy, published in Sustainable Development in World Trade Law. The volume’s goal is to analyse the state of international investment law through the lens of sustainable development and to clarify how international investment law can contribute to sustainable development. The various chapters in the volume identify, characterize, and analyse existing rules, innovations, and best practices in international investment agreements, including the investment measures used by other sustainable development treaties and instruments.
The volume proceeds in four parts. Part I establishes the foundations. Part II of the volume addresses the procedural and substantive dimension of sustainable development in international investment law. Part III is divided into two sections. The first section examines emerging issues and proposals. The second section examines how investment can be promoted through sustainable development treaties in general, followed by chapters on climate change, and biodiversity treaties, as well as treaties concerning water use and shared river regimes. Part IV provides the conclusions, which draw out the themes from this volume and provide a research agenda for the future in this emerging and important area.
Kristen Blankley, Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case
Abstract:
As the alternative dispute resolution field has grown, parties have designed their own processes from established processes in an attempt to best serve their process needs. One such hybrid process is mediation-arbitration, called “med-arb” for short. Med-arb involves a single neutral who first serves as a mediator, and, if the parties reach impasse in mediation, the neutral then serves as an arbitrator to resolve the dispute. Although the literature has given some attention to the benefits and drawbacks of med-arb, this Article examines the process in light of broad mediation confidentiality and privilege statutes. Because these laws have no exceptions for med-arb, parties who seek to utilize this process must execute careful waivers to avoid the possibility that any resulting arbitration award later be vacated by the courts.
Dinah L. Shelton, Form, Function, and the Powers of International Courts
Abstract:
At the end of the nineteenth century, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration. Since then, numerous courts and tribunals have been created on the international stage. This Article examines the interplay of form, function, and the powers exercised by international courts. It first considers the functions or attributes of any institution that carries the name "court" or "tribunal" and reflects upon whether there are powers that must be deemed inherent in such an institution to allow it to fulfill the judicial function, irrespective of limitations placed on the court's jurisdiction or the type of proceedings it conducts. The Article then identifies four specific functions that states have expressly delegated to international courts. The conclusion suggests that courts, litigants, and scholars still may usefully examine any exercise of international judicial powers by considering the function of the court and asking whether the power is one inherent to all courts, expressly conferred on the particular court, or reasonably implied from an express or inherent power.
Nancy Welsh, Integrating ‘Alternative’ Dispute Resolution into Bankruptcy: As Simple (and Pure) as Motherhood and Apple Pie?
Abstract:
Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a lawyer’s ability to provide her clients with competent advice regarding the appropriate application of these procedures; (2) impairment of a lawyer’s ability to suggest new dispute resolution hybrids that are both creative and implementable; (3) inappropriate use of dispute resolution procedures, adversely affecting clients, third party beneficiaries/victims, sponsoring institutions, and the integrity of dispute resolution as a field; (4) inadequate regulation, monitoring, and use of dispute resolution procedures; (5) the temptation of some lawyers, clients, and institutions to make intentionally inappropriate and even unethical use of dispute resolution procedures; and (6) new, and sometimes entirely unnecessary, satellite litigation arising out of the use of dispute resolution procedures. Meanwhile, the current ethics rules for lawyers, which are based largely on the American Bar Association’s Model Rules of Professional Conduct and are supposed to provide some sort of an ethical and professional brake upon “sharp practices” by lawyers, are either so ambiguous or so insufficient in their treatment of “non-adjudicative” dispute resolution procedures that they may invite bad behavior by clever clients or their lawyers. This Article tells two tales – one hypothetical, the other the real story that inspired the hypothetical – that illustrate many of the negative effects described supra.
While now is the time to advocate for the increased use of dispute resolution procedures in bankruptcy and foreclosure matters, now is also the time to demand more stringent education and regulation of lawyers to assist them in making sufficiently knowledgeable, skillful and ethical use of “alternative” dispute resolution procedures, especially in the court-connected context. Law schools, meanwhile, play an essential role in educating students regarding existing dispute resolution procedures and their application, but law schools are much more likely to incorporate such material into their curricula if bar exams test for future lawyers’ knowledge and thoughtful application of these procedures. Last, the Model Rules of Professional Conduct and states’ ethics rules for lawyers should be updated to respond to the many ethical ambiguities that currently haunt non-adjudicative court-connected dispute resolution.
Leonila Guglya, International Review of Decisions Concerning Recognition and Enforcement of Foreign Arbitral Award: A Threat to the Sovereignty of the States or an Overestimated Hazard (so far)? (With Emphasis on the Developments within the International Investment Arbitration Setting)
Abstract:
The article explores the possibilities of review of the decisions of national courts pertaining to the recognition and enforcement of foreign arbitral awards by the international investment arbitration tribunals – a relatively new development, arguably limiting the sovereignty of the judiciaries of the host states further by creating a new “appellate” mechanism, verifying the “appropriateness” of their respective verdicts. The scrutiny, based on the case law analysis, demonstrates that, while overall the international dispute settlement mechanism concerned does feel certain reluctance in dealing with the reviews of the kind, in principle, taken that jurisdictional preconditions are met, it should be considered as a possible venue for the reexamination of the respective national judgments and could potentially be addressed by the parties raising expropriation, denial of justice and similar claims, arising out of the relevant context. The controversies, however, promise to present quite a challenge to the investors as far as the merits phase is concerned in light of [potential] existence of the alternative enforcement fora (arguably eliminating the expropriation claim) or the need to exhaust all available national judicial remedies (for the cases of denial of justice).
Additionally, the enforcement prospects for the international investment arbitration awards resolving the post-award phase controversies, rendered outside of the ICSID context, are so far unclear. They might risk following the fate of the awards with the successful or failing recognition and enforcement of which they are concerned.
[Note: An interesting topic]
Isabelle Liger, 100 Translation Errors in Institutional Arbitration Rules
Abstract:
This article is an extensive comparison of the main arbitral institutions’ rules in different languages, focusing on the English, French, Spanish and Russian versions of the rules, when available. Our comparative analysis of the rules took us to the conclusion that there are discrepancies between versions of the rules in different languages. In some cases, such differences between versions can have important consequences on arbitration proceedings. This article is a wake-up call for international arbitral institutions, which should provide participants to arbitration cases with better quality translations of the rules, and a warning for participants to arbitration and litigators, who should be careful in using translations of arbitration rules.
Most international arbitral institutions make their rules available on their websites in two or more languages. Because international arbitration involves parties from different countries who often do not speak the same language, these parties will use translations of the rules to make their way into arbitration proceedings. However, a comprehensive comparison of major arbitral institutions’ rules in different languages has revealed that there are differences between versions of the rules. Some of these differences are minor, and do not change the content itself of the rules or the obligation of the parties, but some differences are more important and can have notable consequences on the conduct of arbitration proceedings. Such variations can create confusion in the minds of the parties to arbitration, and prevent arbitration proceedings from being carried on diligently and without delay. First, the parties might not know that different versions of the rules are not equivalent, and rely only on one translation, which could lead in some cases to a different result. Second, the arbitral institution may indicate that one version of the rules is the official one, but the parties may not necessarily be able to understand the content of the rules if it is not written in their native language. Third, arbitration rules may have more than one official version, and the parties may legitimately rely only on one of them, though there may be some differences between two official versions of the rules. Finally, the arbitral institution may not say which of the versions of the rules is the official one, and in this case the parties are not in a position to know on which version they should rely in the event of a conflict between different versions of the rules.
The translation errors that result in differences between versions of arbitration rules vary considerably in terms of number and types of errors. Some versions of the rules are very similar, but others are very divergent. This article only reports on the institutions whose versions of the rules are not equivalent; we also limited our research to the comparisons of English, French, Spanish and Russian versions (and Italian in some very few cases). This means that the number of translation errors, considering all existing arbitration institutions, and translations of the rules in all languages available, is probably much higher. The purpose of this article is to list the kind of translation errors that can be found in arbitration rules, and to raise the awareness of the importance of wording in these rules. Hopefully, arbitral institutions will consider the need to improve their translations, in order to facilitate arbitration proceedings and to allow participants to rely on them.
[note: A very promising abstract]
Leonila Guglya, Conflicts of Interest in Arbitration: The News from the Russian Federation
Abstract:
Impartiality and independence of arbitrators, standing right at the forefront of the arbitration and, essentially, ensuring its legitimacy, have always attracted attentions of scholars and practitioners. A major breakthrough in terms of development of internationally recognized standards in the area took place in 2004, when the Guidelines on Conflicts of Interest in International Arbitration were published by the IBA. Nevertheless, despite the optimistic expectations of the drafters, the IBA Guidelines had not facilitated the conflicts of interest resolution practice of the courts and tribunals in the Russian Federation. In order to fill the lacuna, in late August 2010 the “Russian version” of the Guidelines – Rules on Impartiality and Independence of the Arbitrators – were adopted by the Chamber of Commerce and Industry of the Russian Federation. The present article is aimed at analyzing the reasons underlining the adoption of the Rules, their structural peculiarities, and, most importantly, at scrutinizing the content of the instrument in making an attempt to find explanations for the inclusion of certain provisions thereto, be that by virtue of reference of pre-existing precedents, regional cultural heritage or legal realities. The study proceeds on the comparative edge, contrasting the approach adopted by the Rules with that finding its reflection in the text of the IBA Guidelines.
Zdenek Novy, The Enforcement of Consumer Right via Arbitration (2nd Version)
Abstract:
I will seek to demonstrate in the first part of my thesis that while arbitration may be a suitable mechanism for resolving of business disputes, it is less certain that this holds true also for consumer disputes.
The key question is whether arbitration may ensure the effective protection of consumer rights. This question is gaining particular importance, as the EU prompts there be “adequate and effective out-of-court dispute resolution procedures” for consumer disputes in Member States.
Therefore, the starting point is the analysis of arbitration as a dispute resolution mechanism. Indeed, my initial hypothesis then is that some idiosyncratic features of arbitration are ill-suited for consumer disputes.
The reasons why arbitration seems to be inappropriate for resolution of consumer disputes are of the twofold nature: normative and empirical. Normative reasons stem from the peculiarities of arbitration as a legal system, whereas empirical reasons arise from certain patterns of the functioning of arbitration in practice, e.g. businesses being “repeat players” as opposed to consumer as “single-shot players” or the business-oriented nature of (international) arbitration.
Nicholas Pengelley, Confidentially Speaking: Commercial Arbitration in Canada’s Open Courts
Abstract:
Confidentiality is a vexed topic in international commercial arbitration. Regarded as arising inherently from the private nature of arbitration, with few exceptions, by UK courts; other jurisdictions have hedged it with qualifications. Canada, with its strong adherence to the principles of open courts, and freedom of speech, is at the extreme edge of the spectrum. Although its courts have found no inherent right to confidentiality, "sealing orders" will be granted in certain circumstances to preserve confidentiality of materials gathered in the course of preparing for an arbitration.
Katia Fach Gómez, Latin American Approaches to International Dispute Resolution
Abstract:
The presentation studies some actions taken by Latin American States against ICSID and also offers information about the latest developments in Latin America regarding the creation of a regional Dispute Regional Center.
The article explores the possibilities of review of the decisions of national courts pertaining to the recognition and enforcement of foreign arbitral awards by the international investment arbitration tribunals – a relatively new development, arguably limiting the sovereignty of the judiciaries of the host states further by creating a new “appellate” mechanism, verifying the “appropriateness” of their respective verdicts. The scrutiny, based on the case law analysis, demonstrates that, while overall the international dispute settlement mechanism concerned does feel certain reluctance in dealing with the reviews of the kind, in principle, taken that jurisdictional preconditions are met, it should be considered as a possible venue for the reexamination of the respective national judgments and could potentially be addressed by the parties raising expropriation, denial of justice and similar claims, arising out of the relevant context. The controversies, however, promise to present quite a challenge to the investors as far as the merits phase is concerned in light of [potential] existence of the alternative enforcement fora (arguably eliminating the expropriation claim) or the need to exhaust all available national judicial remedies (for the cases of denial of justice).
Additionally, the enforcement prospects for the international investment arbitration awards resolving the post-award phase controversies, rendered outside of the ICSID context, are so far unclear. They might risk following the fate of the awards with the successful or failing recognition and enforcement of which they are concerned.
[Note: An interesting topic]
Isabelle Liger, 100 Translation Errors in Institutional Arbitration Rules
Abstract:
This article is an extensive comparison of the main arbitral institutions’ rules in different languages, focusing on the English, French, Spanish and Russian versions of the rules, when available. Our comparative analysis of the rules took us to the conclusion that there are discrepancies between versions of the rules in different languages. In some cases, such differences between versions can have important consequences on arbitration proceedings. This article is a wake-up call for international arbitral institutions, which should provide participants to arbitration cases with better quality translations of the rules, and a warning for participants to arbitration and litigators, who should be careful in using translations of arbitration rules.
Most international arbitral institutions make their rules available on their websites in two or more languages. Because international arbitration involves parties from different countries who often do not speak the same language, these parties will use translations of the rules to make their way into arbitration proceedings. However, a comprehensive comparison of major arbitral institutions’ rules in different languages has revealed that there are differences between versions of the rules. Some of these differences are minor, and do not change the content itself of the rules or the obligation of the parties, but some differences are more important and can have notable consequences on the conduct of arbitration proceedings. Such variations can create confusion in the minds of the parties to arbitration, and prevent arbitration proceedings from being carried on diligently and without delay. First, the parties might not know that different versions of the rules are not equivalent, and rely only on one translation, which could lead in some cases to a different result. Second, the arbitral institution may indicate that one version of the rules is the official one, but the parties may not necessarily be able to understand the content of the rules if it is not written in their native language. Third, arbitration rules may have more than one official version, and the parties may legitimately rely only on one of them, though there may be some differences between two official versions of the rules. Finally, the arbitral institution may not say which of the versions of the rules is the official one, and in this case the parties are not in a position to know on which version they should rely in the event of a conflict between different versions of the rules.
The translation errors that result in differences between versions of arbitration rules vary considerably in terms of number and types of errors. Some versions of the rules are very similar, but others are very divergent. This article only reports on the institutions whose versions of the rules are not equivalent; we also limited our research to the comparisons of English, French, Spanish and Russian versions (and Italian in some very few cases). This means that the number of translation errors, considering all existing arbitration institutions, and translations of the rules in all languages available, is probably much higher. The purpose of this article is to list the kind of translation errors that can be found in arbitration rules, and to raise the awareness of the importance of wording in these rules. Hopefully, arbitral institutions will consider the need to improve their translations, in order to facilitate arbitration proceedings and to allow participants to rely on them.
[note: A very promising abstract]
Leonila Guglya, Conflicts of Interest in Arbitration: The News from the Russian Federation
Abstract:
Impartiality and independence of arbitrators, standing right at the forefront of the arbitration and, essentially, ensuring its legitimacy, have always attracted attentions of scholars and practitioners. A major breakthrough in terms of development of internationally recognized standards in the area took place in 2004, when the Guidelines on Conflicts of Interest in International Arbitration were published by the IBA. Nevertheless, despite the optimistic expectations of the drafters, the IBA Guidelines had not facilitated the conflicts of interest resolution practice of the courts and tribunals in the Russian Federation. In order to fill the lacuna, in late August 2010 the “Russian version” of the Guidelines – Rules on Impartiality and Independence of the Arbitrators – were adopted by the Chamber of Commerce and Industry of the Russian Federation. The present article is aimed at analyzing the reasons underlining the adoption of the Rules, their structural peculiarities, and, most importantly, at scrutinizing the content of the instrument in making an attempt to find explanations for the inclusion of certain provisions thereto, be that by virtue of reference of pre-existing precedents, regional cultural heritage or legal realities. The study proceeds on the comparative edge, contrasting the approach adopted by the Rules with that finding its reflection in the text of the IBA Guidelines.
Zdenek Novy, The Enforcement of Consumer Right via Arbitration (2nd Version)
Abstract:
I will seek to demonstrate in the first part of my thesis that while arbitration may be a suitable mechanism for resolving of business disputes, it is less certain that this holds true also for consumer disputes.
The key question is whether arbitration may ensure the effective protection of consumer rights. This question is gaining particular importance, as the EU prompts there be “adequate and effective out-of-court dispute resolution procedures” for consumer disputes in Member States.
Therefore, the starting point is the analysis of arbitration as a dispute resolution mechanism. Indeed, my initial hypothesis then is that some idiosyncratic features of arbitration are ill-suited for consumer disputes.
The reasons why arbitration seems to be inappropriate for resolution of consumer disputes are of the twofold nature: normative and empirical. Normative reasons stem from the peculiarities of arbitration as a legal system, whereas empirical reasons arise from certain patterns of the functioning of arbitration in practice, e.g. businesses being “repeat players” as opposed to consumer as “single-shot players” or the business-oriented nature of (international) arbitration.
Nicholas Pengelley, Confidentially Speaking: Commercial Arbitration in Canada’s Open Courts
Abstract:
Confidentiality is a vexed topic in international commercial arbitration. Regarded as arising inherently from the private nature of arbitration, with few exceptions, by UK courts; other jurisdictions have hedged it with qualifications. Canada, with its strong adherence to the principles of open courts, and freedom of speech, is at the extreme edge of the spectrum. Although its courts have found no inherent right to confidentiality, "sealing orders" will be granted in certain circumstances to preserve confidentiality of materials gathered in the course of preparing for an arbitration.
Katia Fach Gómez, Latin American Approaches to International Dispute Resolution
Abstract:
The presentation studies some actions taken by Latin American States against ICSID and also offers information about the latest developments in Latin America regarding the creation of a regional Dispute Regional Center.
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