Supreme Court Opens the Door for Non-Signatories to Enforce Arbitration Agreements, Resolving Circuit Split

On June 1, 2020 the United States Supreme Court issued a unanimous decision in GE Energy Power Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA, LLC, No. 18-1048, 2020 WL 2814297 (U.S. June 1, 2020), holding that the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) does not conflict with the enforcement of arbitration agreements by non-signatories through domestic equitable estoppel doctrines. Continue Reading

Rolls-Royce Seeks to Resolve Circuit Split on Whether District Courts Can Order Discovery For Use in Private Arbitration

As discussed in our previous blog, many foreign companies favor private international arbitration for dispute resolution purposes in order to avoid being haled into a U.S. court and to avoid U.S.-style discovery.  That calculus may change if the Supreme Court decides to consider whether a district court has authority to order discovery under 28 U.S.C. § 1782 for use in private commercial arbitration, which would resolve the current split amongst Circuit Courts. Continue Reading

Practical Considerations under FIDIC Contracts in Light of COVID-19

The outbreak of the coronavirus has been an unprecedented event affecting every industry, including construction.  To ensure their entitlement to an extension of time, costs, or even termination, parties to construction contracts need to carefully review the contract provisions that allocate risks.  Below, we discuss a number of practical considerations that may arise under a standard form construction contract – such as the FIDIC Red Book – in light of the COVID-19 pandemic. Continue Reading

Major Arbitral Institutions Update Guidance Regarding COVID-19

Since our last update, a little over a month ago, many major arbitral institutions have updated their guidance regarding COVID-19 in light of the continuing impact of the pandemic on ongoing proceedings.  Below we have included updated guidance from major arbitral institutions and expanded the chart to include a number of new institutions.  Thirteen major arbitral institutions[i] also issued a joint statement regarding “Arbitration and COVID-19.”[ii]  The statement encouraged parties and arbitrators to work together to mitigate the effects of COVID‑19 on proceedings while still ensuring fairness. Continue Reading

Guidance for Trustees During COVID-19 Pandemic

The global health pandemic is a crisis affecting the health and well-being of our citizens, and a financial crisis of unknowable breadth and duration. We are all in crisis to one degree or another and trustees of private trusts face conditions and decisions once unthinkable. Trustees will be called upon to make the most difficult decisions of their tenures, including investments, management of trust assets, cost measures and decisions about distributions to beneficiaries.

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The Impact of COVID-19 on International Arbitration Hearings

International arbitration often equals international travel for both counsel, witnesses, and arbitrators.  But with the new reality of travel restrictions, “shelter in place” orders, remote work, and restrictions on gathering, in person hearings, especially among persons from different nations, may not be feasible, at least in the short term, and maybe longer.

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The Growing Importance of International Arbitration for Intellectual Property Disputes

International arbitration is becoming an increasingly relevant forum for the resolution of intellectual property (“IP”) disputes. This should not be a surprise given multi-country licensing of patents, trademarks and trade secrets, as well as broader market forces such as globalization, digitalization, and the Internet. In a global economy, intellectual property rights (“IPRs”) are often a company’s most valuable assets. The ability to exploit, protect and enforce IPRs on a cross-border level is thus critical. As with other types of cross-border disputes, international arbitration provides an attractive forum for the resolution of disputes over IPRs. Continue Reading

GDPR and International Arbitration at a Crossroad

The International Council for Commercial Arbitration (ICCA) and the International Bar Association (IBA) have established a Joint Task Force on Data Protection in International Arbitration Proceedings. The task force will develop guidance for arbitration professionals with regard to data protection in arbitration proceedings. This guidance, which is expected to be published for comment later this year or in early 2020, aims provide practical guidance on the potential impact of data protection principles. In particular, it will recommend how information and evidence subject to the European Union’s General Data Protection Regulation (“GDPR”) is to be handled in international arbitration proceedings. Continue Reading

Sovereign Wealth Funds – Preserving Sovereign Immunity

In order to minimize the risk of litigation arising from investments in the United States, sovereign wealth funds (“SWFs”) should take care to avoid inadvertent or unnecessary waiver of sovereign immunity–before they establish operational or investment management presence in the United States.

SWFs generally benefit from sovereign immunity in the United States under the Foreign Sovereign Immunities Act (“FSIA”). As an agency or instrumentality of foreign state, they are generally entitled to immunity from the jurisdiction of the U.S. courts. However, an SWF may lose or limit its sovereign immunity where the SWF: (1) is involved in “commercial activities” in or affecting the United States; or (2) waives sovereign immunity, either expressly or by implication. Continue Reading

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