On March 22, 2021, the U.S. Supreme Court granted certiorari in the case brought by Servotronics Inc., where it challenged the Seventh Circuit’s decision to reject discovery pursuant to 28 U.S.C. § 1782 for use in a private arbitration brought by Rolls-Royce PLC in London. The Supreme Court’s decision should resolve the current circuit split on the question of whether Section 1782 can be used for private international arbitration, which has been an ongoing topic of interest among international arbitration practitioners and scholars. Continue Reading
Throughout the coronavirus pandemic, parties to an arbitration agreement and arbitrators have grappled with the issue of the right to a live, in-person arbitration hearing. Is there a due process concern that flows from conducting remote proceedings over one side’s insistence on in-person hearing? For example, parties’ facility with presenting testimony and evidence remotely may be limited, arbitrators’ technical proficiency may be lacking, and they may be uncomfortable with taking evidence remotely. Then there is the difficulty of presenting the case effectively across different time zones and the potential unfair advantage to one party over another caused by requiring one party’s witnesses and evidence to be presented outside normal business hours. In some cases, there may be physical evidence that is difficult to present remotely or the need for a site visit. Continue Reading
The Singapore International Arbitration Centre (“SIAC”) opened its first office outside of Asia in New York on December 3, 2020. According to SIAC, US parties are consistently among the top foreign users of SIAC and in 2020 alone, over 500 US parties have arbitrated under SIAC’s Rules. According to SIAC’s 2019 Annual Report, U.S. was the fourth top foreign user of SIAC, coming after India, Philippines, and China. As an increasingly popular arbitral institution, not just amongst parties located in Asia but worldwide, SIAC has taken the leap to become a global institution, aiming to have a greater presence in the Americas. In 2020, despite the global pandemic, there have been more than 1,000 cases filed with SIAC, marking a new record for the institution since its establishment in 1991.
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
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
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
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
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.
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.
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