Commercial Arbitration

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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 bilateral investment treaty (BIT) or free trade agreement, however, the investing party may have compelling reasons to simultaneously pursue commercial arbitration pursuant to contract, and investment arbitration pursuant to treaty. And unlike other situations where courts and tribunals may look askance at parallel proceedings, the presence of an otherwise exclusive arbitration clause in a contract between a foreign investor and a host state may not, by itself, preclude an injured investor from pursuing both commercial arbitration as provided in the contract and investment arbitration as provided in a treaty. This has a sound basis in international law and provides potential advantages to parties with claims pending in private commercial arbitration proceedings.
Continue Reading Pursuing Parallel Arbitration Under an Investment Treaty

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 threshold arbitrability questions that may arise, such as whether the parties have agreed to arbitrate or whether their arbitration agreement applies to and covers the particular dispute between the parties. 
Continue Reading The U.S. Supreme Court Opines on Arbitrability

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 to that provided by the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). Specifically, the Singapore Convention applies to settlement agreements reached outside of court and arbitral proceedings, which without the Convention are not directly enforceable in a domestic legal system.
Continue Reading The Singapore Convention Allows for Recognition of Settlement Agreements Made Outside of Court or Arbitral Proceedings

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 or rulemaking “solutions.”  For example, regulation of third party funding looks to be included among the topics to be addressed by anticipated amendments to the ICSID rules. In a interview, Meg Kinnear, ICSID’s General Counsel, indicated that, while the institution does not propose to prohibit the practice in the amendments, ICSID does propose to add third party funding disclosure requirements to address and avoid possible conflicts issues. HKIAC rules likewise include disclosure requirements, but also expressly permit tribunals to take into account any funding arrangements when fixing and apportioning costs. Another proposal that has been argued for, especially by state entities, is making funders liable to post security for fees at the outset of the proceedings.
Continue Reading A New Front Against Third Party Funding?