Arbitration Archives

USCIB Supports Singapore Convention on Mediation 

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International businesses now have a powerful tool that will greatly facilitate international trade and commerce. The new Singapore Convention will make enforceable settlement agreements resulting from international mediation.

USCIB joined the US Chamber of Commerce, NFTC, and NAM to co-sign a letter of support for the U.S. signing and ratifying the Singapore Convention on Mediation. The letter was sent to U.S. Secretary of State Michael Pompeo on November 1. The treaty negotiation was launched by the U.S. with the aim of developing a cost-effective international legal mechanism for resolving cross-border commercial disputes between private parties.

“By encouraging the use of mediation as a viable path to resolving commercial disputes, the Convention reduces cost and eliminates the need for duplicative litigation,” the letter stated.

The Convention also improves the enforcement process by obliging governments to recognize the legal status of any mediated settlement. As a result, the Singapore Convention helps mitigate risk when entering into a commercial relationship with businesses in foreign markets and raises the standards of fair trade globally.

USCIB Hosts Arbitration Luncheon on B2B Data Breaches Disputes

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Program focused on the coming wave of data privacy and security disputes between businesses, the legal claims and defenses asserted in these cases and the key role of ADR in resolving these disputes.
Where there is a breach, companies need to examine who owned the data, who had custody of the data and the source of the breach.

 

USCIB’s Arbitration Committee hosted a luncheon with Squire Patton Boggs on October 3 focusing on arbitrating B2B data breach disputes. As data breaches are increasingly more common, business-to-business (“B2B”) disputes arising from security incidents between companies are also on the rise. The luncheon program focused on the coming wave of data privacy and security disputes between businesses, the legal claims and defenses asserted in these cases and the key role of ADR in resolving these disputes.

Divided into two panels, the first panel, which was moderated by USCIB General Counsel, Nancy M. Thevenin, focused on the business problem of data breach disputes. Speaker, Nancy Saltzman, former executive vice president, general counsel and company secretary of EXL Service, advised businesses to review their new and old contracts for data breach provisions and risk allocations. Where there is a breach, companies need to examine who owned the data, who had custody of the data and the source of the breach. Saltzman explained that a breach can occur internally within one’s own company via human or system error or externally via hacking.

Edward Chang of Cyber Risk Management at Travelers described how a breach may release a company’s sensitive information or personally identifiable information of its customers. Chang explained that in terms of insurance, this is a fast moving field with about 70 different issuers that provide coverage for B2B data breaches. He specified that there are four basic schemes for coverage: (a) incident response; (b) business interruption losses; (c) fraud and business email compromise; and (d) liability. Both speakers agreed that it is not uncommon for companies to quickly go through $10 million worth of coverage where a breach occurs.

The second panel, moderated by Frederic Fucci, an independent arbitrator with Fucci Law & ADR, PLL and chair of the Transactional Lawyers Subcommittee focused on how alternative dispute resolution (ADR), as opposed to litigation, was an effective means of resolving these disputes. Speaker Joseph V. DeMarco, founder and principal at DeVore & DeMarco LLP, emphasized that the confidentiality of mediation and arbitration was a key advantage. Speaker, Gary L. Benton, FCIArb, FCCA, an independent arbitrator with Gary Benton Arbitration and founder of the Silicon Valley Arbitration & Mediation Center, added that with ADR, the parties can select neutrals with the technical expertise to effectively resolve data breach disputes.

To conclude, the program emphasized the importance for businesses to focus on and negotiate the data breach provisions of any contract in which they are providing access to their data and to consider obtaining insurance to protect against data breaches. The program also emphasized using ADR to resolve these disputes. For example, using the standard ICC arbitration clause followed by provisions for the place of arbitration, applicable law, number of arbitrators with required expertise and language would be a sufficient starting place.

The New York Convention Turns 60

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By Grant Hanessian

Hanessian is a partner at Baker McKenzie in New York and chair of USCIB’s Arbitration Committee. He is the U.S. member of the ICC Court of Arbitration and an adjunct professor of law at Fordham Law School. Contact him at grant.hanessian@bakermckenzie.com. 

Grant Hanessian

A few weeks ago, the 60th anniversary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards – the “New York Convention” – was celebrated at United Nations headquarters and the U.S. Courthouse in New York.

The tremendous success of the New York Convention, which provides for national court enforcement of foreign arbitration awards and agreements, is one of the principal reasons arbitration has become the preferred choice of parties around the world for resolving cross border commercial disputes. Virtually all the world’s major trading nations have ratified the convention.

Following a conference at the UN featuring representatives from the International Chamber of Commerce, UN Commission on International Trade Law (UNCITRAL), International Bar Association, International Council for Commercial Arbitration, and U.S. Department of Commerce, a “birthday” celebration was held at the U.S. Courthouse on Pearl Street in Manhattan. ICC and UNCITRAL served as co-hosts of the event.

“The New York Convention is a tremendous example of how business and governments can work together to strengthen global governance, and its enduring relevance is a testament to ICC’s leadership in shaping the global environment for private dispute resolution over the past century,” ICC Secretary General John Denton observed at the reception. USCIB General Counsel Nancy Thevenin, who is immediate past chair of the New York State Bar Association International Section, helped organize the event and also made remarks.

ICC’s preeminence in international commercial arbitration is of course well known. The ICC International Court of Arbitration, created in 1923 to encourage settlement of disputes arising from international trade, has administered more than 23,000 disputes involving parties and arbitrators from 180 countries and independent territories.

It may be less well known that ICC initiated the process that led to creation of the New York Convention. At the UN conference, Anna Joubin-Bret, secretary of UNCITRAL, noted that ICC’s Commission on Arbitration and ADR prepared the first draft of the convention and submitted it to the UN in 1953. The UN Economic and Social Council then produced an amended draft that was discussed during a conference at UN Headquarters in May and June 1958, resulting in the UN’s adoption of the New York Convention on June 10, 1958.

Prior to adoption of the New York Convention, parties seeking to enforce foreign arbitral awards usually had to obtain two court decisions of exequatur, one from the country where the award was issued and another at the place of enforcement.  The convention eliminated the requirement of double exequatur, significantly restricted the grounds for national court refusal of recognition and enforcement and placed the burden of proving such grounds on the party opposing such recognition and enforcement.

Under the New York Convention, national courts considering applications for recognition and enforcement of foreign awards may not review the merits of the arbitral tribunal’s decision. National courts have generally construed the grounds for refusal of recognition and enforcement under the Convention narrowly, and they have exercised their discretion to refuse recognition and enforcement only in exceptional cases. Enforcement of arbitral awards by national courts is now considerably easier than enforcement of national court judgements in many countries, greatly facilitating resolution of international business disputes.

The New York Convention, and complementary UNCITRAL texts such as the UNCITRAL Model Law on International Commercial Arbitration in 1985, have led to an increasingly harmonized arbitration law. The UNCITRAL model law, which has now been adopted by 111 jurisdictions in 80 countries, essentially repeats the grounds of the New York Convention for enforcement and setting aside foreign awards.

At the UN event, Helene van Lith, the secretary of the ICC Commission on Arbitration and ADR, emphasized the role ICC continues to play in applying and interpreting the convention through Court of Arbitration scrutiny of awards and the publication of the forthcoming third revised edition of the ICC Guide to National Procedures for Recognition and Enforcement of Awards Under the New York Convention. The increasing availability of national court decisions interpreting the Convention and UNCITRAL model law, through such sources as the ICC Guide and the online Case Law on UNCITRAL Texts, has importantly contributed to a uniform and predictable application of arbitration law around the world.

In these times when multilateral trade arrangements are under stress, everyone interested in the continued growth of international business should applaud the extraordinary vitality of the New York Convention as it enters its seventh decade.

August 14, 2018

 

USCIB Joins ICC in Celebrating Anniversary of NY Convention

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USCIB General Counsel Nancy Thevenin

New York’s international arbitration community recently celebrated the 60th anniversary of the New York Convention, which provides a universal basis for enforcement of arbitration agreements and awards is a source of particular pride to the International Chamber of Commerce (ICC), which initiated the drafting process that led to the Convention’s adoption by the United Nations in 1958. 

USCIB General Counsel Nancy Thevenin, who is also the Immediate Past Chair of the New York State Bar Association International Section and George Bermann Professor at Columbia Law School, helped organize the reception and noted in her remarks, “There is an elegance to the fact that this sparely worded document has been one of the mightiest tools employed by the international business community to foster trade and investment worldwide.”

The Convention, and the many complementary UNCITRAL projects, demonstrate the abiding importance of state cooperation to promote efficient, effective and equitable resolution of commercial and investment disputes.

For more information on this event, please visit ICC’s website.

Russian Sanctions: How Do They Affect US Business?

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A roundtable discussion was held at HodgsonRuss LLP in New York on April 26, connecting participants from Washington DC, New York and Europe to discuss the recent sanctions imposed by the U.S. Government on Russia, enforcement trends and how they affect the way the U.S. companies conduct business around the globe. This event was organized by the Committee on Eastern Europe and Committee on International Trade of the International Section of the New York State Bar Association. Distinguished panelists included Charles R. Johnston (Citi), chair of USCIB’s Trade and Investment Committee, Michael Hendrix, OFAC, U.S. Department of Treasury, Hon. Volodymyr Yelchenko, permanent representative of Ukraine to the United Nations and Robert J. Leo, chair of the Committee on International Trade. The discussion was moderated by Serhiy Hoshovsky, chair of the Committee on Eastern Europe. Participation from overseas was moderated by Oleh Beketov, chapter chair in Kiev.

The event was opened by Paul M. Frank, a former chair of the International Section and renown international law attorney who hosted the event at his law firm. Yelchenko provided a comprehensive political context for the Russian sanctions and reminded of the events that led to their initial imposition in 2014. Michael Hendrix, an enforcement officer with OFAC, summarized legal framework for the sanctions and enforcement priorities as well as discussed some recent enforcement actions. Johnston provided a great overview of the sanction regime from the perspective of the U.S. business community, explaining in detail how the sanctions are becoming a new reality and how the U.S. businesses adapt to doing business. He also shared practical experiences of what U.S. companies do to stay compliant. Leo shared a very useful handbook on sanctions and practical tips on what to do when issues arise and how to stay compliant.

“The event provided a unique opportunity for the participants, especially those from the overseas, to ask questions and hear from people who are on the forefront of the sanction policy and enforcement at the US government, business community and legal profession,” said Nancy Thevenin, USCIB’s general counsel. “All panelists and participants agreed that the event was a major success and provided a great platform for sharing views and discussing major issues affecting business and legal community not only in the U.S. but also internationally.”

US and Canada ICC National Arbitration Committees Hold Annual Meeting

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Axel Baum receives award

The co-chairs of USCIB/ICC USA’s and ICC Canada’s Arbitration Expatriate Subcommittees, Charles Kaplan of Orrick and Aren Goldsmith of Cleary Gottlieb Steen & Hamilton LLP organized their annual joint meeting in Paris on April 9th. The meeting was also organized by Andrew McDougall and Kirsten Odynski both of White & Case.

Held at Orrick, the co-chairs opened the meeting and introduced Alexander Fessas, secretary general of the ICC Court, who gave a presentation about recent developments at the ICC Court. Thereafter, Chris Moore of Cleary Gottlieb Steen & Hamilton LLP in London discussed the ICC Practice Note on summary dispositions and its future application. Vasuda Sinha of Freshfields Bruckhaus Deringer’s Paris office ended the substantive segment of the meeting with a presentation comparing the practice of the Canadian, U.S. and Paris national courts in supporting the taking of evidence for use in international arbitrations.

The meeting ended with McDougall providing an update on ICC Canada’s activities, and Grant Hanessian, chair of the USCIB/ICC USA arbitration committee, discussing recent developments with the group.

At that time, Nancy Thevenin, USCIB’s general counsel, presented Axel Baum of Hughes Hubbard & Reed, LLP with a plaque recognizing him for “his many years of leadership of the U.S. arbitration community in Europe and long-standing service on the ICC Arbitration Commission.”

Baum, who was one of the longest serving U.S. members of the ICC Commission, also served as the first chair of the U.S.’s arbitration expatriate committee and helped start the yearly tradition of the joint meeting. Baum also oversaw the transition of group’s leadership to Kaplan and Goldsmith.

Thevenin Serves as Arbitrator at Annual Vis Moot Practice Session

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USCIB/ICC USA held it’s 12th Annual Vis Moot Practice Session earlier this month. The practice moots help law school students hone their advocacy skills in preparation for competing in one of the premier events in international arbitration – the Willem V. Vis Moot Competition in Vienna, Austria — which brings together over 300 law schools competing before hundreds of the world’s best international arbitration experts.

The Practice Session was co-organized with the ICC International Court of Arbitration’s North America office, and included eight law schools (Brooklyn, Cardozo, Fordham, Heidelberg University, New York, New York University, Pace University and the University of Bucharest) with over 30 New York-based arbitration professionals serving as mock arbitrators.

This year’s problem involved the sale of bakery goods under the United Nations Convention on the International Sale of Goods and applied the UNICTRAL Rules of Arbitration to the parties’ dispute.

“USCIB/ICC USA is proud to help support this effort to help train tomorrow’s law leaders in international arbitration,” said Nancy M. Thevenin, general counsel of USCIB/ICC USA, who also served as a mock arbitrator at the practice session. “We thank Javier H. Rubinstein of member firm Kirkland & Ellis, LLP, for hosting this event and for serving as a mock arbitrator.  We also thank Seoun “Nikole” Lee, deputy director, Alexandra Akerly, manager, strategy and development; and Mehr Kaur, promotion, officer of the ICC Court in North America for taking on the oars of organizing the practice session this year.”

Thevenin Joins USCIB as General Counsel

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Nancy Thevenin

New York, N.Y., October 11, 2017 – Nancy M. Thevenin has joined the United States Council for International Business (USCIB), which represents America’s leading global companies, as general counsel. USCIB serves as the U.S. affiliate of several global business bodies, including the International Chamber of Commerce (ICC), the world business organization whose International Court of Arbitration is the world’s leading forum for the settlement of cross-border commercial disputes.

Thevenin’s portfolio will include supporting USCIB’s Arbitration Committee and coordinating the work of the U.S. Nominations Committee to the ICC Court. Additionally, she will coordinate amicus requests and responses from USCIB members and other interested parties. Further, Thevenin will work closely with USCIB’s business development team to ensure more comprehensive membership recruitment outreach to both law firms and corporations.

“Nancy Thevenin brings extensive experience to this important position within USCIB,” said USCIB President and CEO Peter M. Robinson. “Our members, including both companies and law firms, have broad experience and knowledge of global arbitration and other legal matters. I am confident that Nancy will be able to fully leverage those relationships to drive further organizational growth and improved services to members.”

Thevenin previously served as deputy director of the ICC Court’s North American marketing office, which at that time also managed USCIB/ICC-USA’s Arbitration Committee. During her tenure, the group helped launch the ICC International Mediation Competition and developed USCIB’s Young Arbitrators Forum (YAF), which Thevenin helped develop and wrote the proposal to turn into a global organization under the ICC umbrella. She later joined Baker & McKenzie as a special counsel and global coordinator of the firm’s International Arbitration Practice Group. Thevenin left Baker in 2014 to start her own practice as arbitrator and mediator. She is the chair of the International Section of the New York State Bar Association and an adjunct professor of the international commercial arbitration course at St. John’s Law School.

A graduate of Tulane Law School where she obtained certificates in European legal practice and in commercial arbitration, Ms. Thevenin also attended the University of Paris at Panthéon-Assas in France, where she studied the French legal system and European Community law. She is a graduate of Cornell University, where she obtained a double major in history and Spanish literature. While at university, Ms. Thevenin lived in Madrid, Spain and studied international relations, Spanish law and Spanish literature. Thevenin is a Fellow of the Chartered Institute of Arbitrators and is licensed to practice law in New York and Florida.

About USCIB:

USCIB promotes open markets, competitiveness and innovation, sustainable development and corporate responsibility, supported by international engagement and regulatory coherence. Its members include U.S.-based global companies and professional services firms from every sector of our economy, with operations in every region of the world. As the U.S. affiliate of the International Chamber of Commerce, the International Organization of Employers and Business at OECD, USCIB provides business views to policy makers and regulatory authorities worldwide, and works to facilitate international trade and investment. More information is available at www.uscib.org.

Contact:
Jonathan Huneke, VP communications, USCIB
+1 212.703.5043 or jhuneke@uscib.org

USCIB Welcomes New General Counsel for Arbitration

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Nancy Thevenin

USCIB welcomed a new staff member last week to lead its work on Arbitration. Nancy M. Thevenin joined on October 2nd as General Counsel, coordinating the work of the U.S. Nominations Committee for the ICC Court of Arbitration. Thevenin’s portfolio will include supporting the USCIB Arbitration Committee. Additionally, she will coordinate amicus requests and responses. Thevenin will work closely with USCIB’s Business Development team in ensuring a more comprehensive policy, legal and arbitration membership outreach to both law firms and corporations.

Thevenin previously served as deputy director of the ICC Court of Arbitration’s North American marketing office. During her tenure, the group helped launch the ICC International Mediation Competition and developed USCIB Young Arbitrators Forum (YAF), with Thevenin drafting the proposal for the ICC to make YAF a global organization. Nancy then joined Baker & McKenzie as a special counsel in and global coordinator of their International Arbitration Practice Group. She left Baker in 2014 to start her own practice as arbitrator and mediator and continues to teach the spring semester international commercial arbitration course at St. John’s Law School.

We hope you join us in welcoming her to the USCIB team!

ICC Court Opens Case Management Office in Singapore

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Alexis Mourre, president of the ICC Court, Han Kok Juan, deputy secretary of MinLaw, John Danilovich, secretary-general of ICC and Indranee Rajah SC, senior Minister of State of MinLaw and Ministry of Finance

The Singapore Ministry of Law (MinLaw) and the International Court of Arbitration of the International Chamber of Commerce (ICC) announced last week that the ICC Court will set up a case management office in Singapore—aimed at boosting arbitration and serving the dispute resolution needs of businesses around the world.

MinLaw and the ICC Court announced their collaboration at the signing of a Memorandum of Understanding (MOU)—a milestone agreement—in Singapore on June 28. Under the terms of the MOU, MinLaw and the ICC Court will also work together to develop and promote Singapore as a seat and venue for arbitration in Asia through advancing thought leadership, developing talent and arbitration services and undertaking joint marketing.

The MOU was signed by Han Kok Juan, deputy secretary of MinLaw and Alexis Mourre, president of the ICC Court, witnessed by Indranee Rajah SC, senior minister of State of MinLaw and Ministry of Finance and John Danilovich, secretary-general of ICC at the 3rd ICC Asia Conference held in Singapore last week.

The ICC Court, headquartered in Paris, is one of the world’s leading arbitral institutions. In 2016, it administered almost 1,000 arbitral cases from around the world. The Singapore office will be the Court’s fourth overseas case management office—after Hong Kong, New York and Brazil—giving it a peerless global footprint. The new Singapore office is expected to commence operations in the first quarter of 2018 at Maxwell Chambers. It will take up about 2,000 square feet in the new Maxwell Chambers Suites, a conserved heritage building, which will be an expansion of Maxwell Chambers when the refurbishment works are completed in 2019.

The ICC Court has welcomed the conclusion of the MOU, emphasizing that the new case management team will form part of a unique international arbitration hub in Asia. “With its two case management teams in Hong Kong and Singapore, as well as its representative office in Shanghai, the Court is now able to offer a unique international arbitration platform across the entire Asian continent,” said Mourre.