Category Archives: Commercial Arbitration

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Supreme Court May Be Asked to Decide Whether State Insurance Laws Reverse-Preempt the New York Convention

By Neil Popovic, Shin Hahn and William de Sierra-Pambley on September 20, 2021 Posted in Commercial Arbitration, Transnational Litigation

On August 12, 2021, the Ninth Circuit Court of Appeals decided whether Washington state law reverse-preempts the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), in which case the state law would bar the enforcement of arbitration clauses in insurance contracts in states with similar anti-arbitration laws. CLMS … Continue Reading

SCOTUS Finally Agrees to Address Discovery for Use in Foreign Arbitration

By Shin Hahn and Neil Popovic on March 22, 2021 Posted in Commercial Arbitration, Transnational Litigation

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 … Continue Reading

Insisting on Live, In-person Arbitration Hearings During The Pandemic

By Neil Popovic and James Fazio on March 8, 2021 Posted in Commercial Arbitration

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 … Continue Reading

The Singapore International Arbitration Center Opens Office in New York

By Shin Hahn on January 11, 2021 Posted in Commercial Arbitration

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 … Continue Reading

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

By Neil Popovic on June 9, 2020 Posted in Commercial Arbitration

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 … Continue Reading

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

By Neil Popovic and Shin Hahn on May 22, 2020 Posted in Commercial Arbitration, Transnational Litigation

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. … Continue Reading

The Growing Importance of International Arbitration for Intellectual Property Disputes

By Hwan Kim and Jonathan DeFosse on March 12, 2020 Posted in Commercial Arbitration

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 … Continue Reading

GDPR and International Arbitration at a Crossroad

By Sheppard Mullin on December 3, 2019 Posted in Commercial Arbitration, Investor-State Dispute Settlement (ISDS)

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 … Continue Reading

Sovereign Wealth Funds – Preserving Sovereign Immunity

By Hwan Kim on July 11, 2019 Posted in Commercial Arbitration, Transnational Litigation

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 … Continue Reading

Privacy And Confidentiality Are Siblings, Not Twins

By Neil Popovic and Kevin Costello on June 27, 2019 Posted in Commercial Arbitration

When asked why they choose to resolve their disputes through international arbitration, parties often identify confidentiality as an important factor. While the parties may think their arbitration is confidential, in many cases, the proceeding is merely private. In the context of arbitration, privacy and confidentiality are not necessarily the same. Privacy means that arbitration proceedings … Continue Reading

Pursuing Parallel Arbitration Under an Investment Treaty

By Hwan Kim on June 11, 2019 Posted in Commercial Arbitration, Investor-State Dispute Settlement (ISDS)

For various reasons–including fairness, efficiency, and avoiding inconsistent results–courts and arbitration tribunals apply a range of procedural tools to discourage parties from pursuing multiple, separate dispute resolution proceedings between the same parties over related claims arising from a single dispute. In cases involving foreign investment within the coverage of an investment treaty, such as a … Continue Reading

The U.S. Supreme Court Opines on Arbitrability

By Helene Gogadze on March 1, 2019 Posted in Commercial Arbitration

In the United States, parties may agree in their contract not only to submit future disputes to arbitration but to also submit “arbitrability” questions to an arbitrator. In practice, such delegation (if properly made) means that the tribunal, instead of the court, would decide not only the merits of the parties’ dispute but also the … Continue Reading

The Singapore Convention Allows for Recognition of Settlement Agreements Made Outside of Court or Arbitral Proceedings

By Neil Popovic on February 9, 2019 Posted in Commercial Arbitration

On December 20, 2018, the United Nations General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation. This Convention will open for signature on August 7, 2019 in Singapore and will become known as the “Singapore Convention on Mediation”: It provides a framework for the recognition of international settlement agreements similar … Continue Reading

A New Front Against Third Party Funding?

By Joseph LoBue on February 8, 2019 Posted in Commercial Arbitration, Investor-State Dispute Settlement (ISDS)

Third party funding in international arbitration has garnered a great deal of attention in recent years. Many of those opposed to the practice, or seeking to limit or control it, have been outspoken and engaged in efforts to regulate or abolish the practice. Up until now, much of that effort has focused on prospective legislative … Continue Reading