USCIB Supports Singapore Convention on Mediation 

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

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.

At B20, Argentina’s President Notes Crucial Role of Business

Argentina’s President Mauricio Macri
The annual B20 process provides a platform for the international business community to participate in global economic governance.
The set of actionable recommendations will be submitted for consideration by heads of state at the G20 Summit in late November.

 

Argentina hosted the B20 Summit October 4-5 in Argentina, gathering business leaders of B20, government representatives and members of international organizations. Among them was International Chamber of Commerce (ICC) Secretary General John Denton. Denton led a high-level panel on “Infrastructure + Energy: Two powerhouses for development”.

The annual summit, organised this year under the stewardship of G20 host country Argentina, provided an opportunity for Denton and selected business leaders to meet with Argentine President Mauricio Macri, who addressed the group at the Casa Rosada Museum in Buenos Aires.

Formally receiving the group’s recommendations to G20 leaders during the closing session of the Summit, Macri said, “Global solutions require the commitment and action not only of governments but also of all the sectors of society, including the business community. Companies are important in the process of dialogue and consensus building.”

The set of actionable recommendations will be submitted for consideration by heads of state at the G20 Summit in late November.

The annual B20 process provides a significant platform for the international business community to participate in global economic governance, and supports the work of the G20 by hosting focused policy discussions and developing recommendations geared towards strong, sustainable and balanced growth in the global economy.

International Business Magazine: Fall/Summer 2018

The Summer/Fall 2018 issue of USCIB’s quarterly International Business magazine is available here. The issue features a timely column by USCIB President and CEO Peter Robinson titled, “The Myth of Private-Sector ‘Conflict of Interest’ at the UN. The issue also features news stories on how tariffs harm companies and consumers, tax reform impacts, and reinforcing US-China tie, plus news from our global network–Business at OECD, the International Organization of Employers and the International Chamber of Commerce.

“International Business,” USCIB’s quarterly journal, provides essential insight into major trade and investment topics, a high-level overview of USCIB policy advocacy and services, USCIB member news and updates from our global business network.

Subscribe to USCIB’s International Business Magazine

Subscriptions to “International Business” are available free upon request to representatives of USCIB member organizations. Contact us to subscribe.

Non-members may subscribe to “International Business” and other USCIB print publications at an annual rate of $50 (U.S.) for domestic delivery, or $75 for overseas delivery. Contact us to subscribe. USCIB’s annual report, studies from the United States Council Foundation and related publications are included with your paid subscription.

Our free electronic newsletter, “International Business Weekly,” provides regular updates on USCIB’s major activities and priorities. Click here to view a sample issue. Click here to subscribe.

We welcome outside submissions and inquiries regarding our publications – send them to news@uscib.org.

We welcome advertising in International Business magazine — special discounted rates for USCIB member organizations! Contact Kira Yevtukhova (kyevtukhova@uscib.org) for more information.

 

ICC Releases New Code of Conduct for Global Marketing Industry

L-R: Carla Michelotti (International Advertising Association), Sheila Millar (Keller & Heckman), Lee Peeler (National Advertising Division)
Launched September 25 at a conference in New York, the new edition of the flagship ICC Marketing Code raises consumer protection standards around the world and expands rules in the digital realm.

The International Chamber of Commerce (ICC) has released the tenth revision of its flagship Advertising and Marketing Communications Code – a globally applicable self-regulatory framework developed by experts from all industry sectors worldwide. The ICC Marketing Code was launched on September 25 during the National Advertising Division’s 2018 Annual Conference in New York. ICC is the world’s largest business organisation, representing over 45 million companies and more than one billion employees. USCIB serves as ICC’s exclusive American national committee.

Underpinning self-regulatory frameworks in 42 countries, the ICC Marketing Code seeks to protect consumers by clearly setting out the “dos and don’ts” for responsible marketing to ensure legal, honest, decent and truthful communications and practices. This new revision ensures that the ICC Marketing Code takes into account emerging digital marketing and advertising practices, such as artificial intelligence-enabled marketing, market influencers, vloggers and data analytics.

“ICC’s global membership ensures that there is a worldwide consensus on Marketing and Advertising issues, and a unified voice when business speaks to the UN and to national governments,” said Carla Michelotti, vice president of the International Advertising Association and the vice chair of USCIB’s Marketing and Advertising Committee.

Sheila Millar, partner with Keller & Heckman and vice chair of the ICC Marketing and Advertising Commission, who joined Michelotti in unveiling the revised code, added: “The goal was to make sure that the ICC Code remains relevant to the marketplace of today, including modern technologies and marketing practices. We wanted to make it future-proof.”

The tenth revision of the ICC Marketing Code includes:

  • Enhanced guidance on distinguishing marketing communications content from true editorial and user generated content
  • Expanded coverage of the rules to include emerging digital mediums and participants
  • Consolidated rules on direct marketing and digital marketing communications
  • Updated terminology and guidance on the applicability of mobile phones and cross-devices to location-based advertising and interest-based advertising
  • Clarified rules on advertising to children and teens

“The digital transformation of marketing and advertising underscores the critical importance of trust between consumers and companies,” said ICC Secretary General John Denton. “The ICC Marketing Code sets the gold standard for ethical advertising that will help ensure consumer trust in the years to come.”

Brent Sanders, assistant general counsel at Microsoft and chair of the ICC Commission on Marketing and Advertising (as well as USCIB’s Marketing and Advertising Committee), agreed and noted: “The ICC Marketing Code has served as the inspiration for self-regulatory codes and as a building block for self-regulatory structures around the world. By ensuring advertising is honest, transparent and decent, these systems build consumer trust and provide quick and easy redress when transgressions occur.”

A Spanish-language edition of the newly-revised ICC Marketing Code will be launched in Cartagena, Colombia – and accessible globally online – on October 2.

The ICC Commission on Marketing and Advertising examines major marketing and advertising related policy issues of interest to world business and brings together top experts on self-regulation and ethical best practices in advertising and marketing communications. ICC has been the major rule-setter in international advertising self-regulation since 1937, when the Commission issued its first Marketing Code – one of the most successful examples of business self-regulation ever developed.

Business Must Help Governments Chart New Course in Trade Policy, Writes ICC Secretary General

ICC Secretary General John Denton published a letter in Financial Times on September 5 titled, “Let’s be constructive on trade and not just vent.” The letter responds to recent critique of a “muted response from U.S. chief executives to the ongoing escalation in global trade tensions,” particularly in response to President Donald Trump‘s threat to pull the U.S. out of the World Trade Organization (WTO).

“It is certainly true that there is an imperative for business to stand behind the multilateral trading system — now more so than ever,” writes Denton. “But I would suggest that the private sector has much more to offer than simply voicing its (well-founded) concerns. “Rather than adding fuel to the fire of an already polarized debate, business leaders must instead focus on helping governments chart a new course for trade policy-making that deals meaningfully with the pressures now building in the global economy. If tariffs are not the answer, then what are the alternatives? And how can the WTO, to use Mr Trump’s vernacular, best ‘shape up’ to avoid the U.S. shipping out?”

The full article can be viewed here. Member subscription required.

 

Global Competition Policy in the Spotlight at Joint ICC/USCIB Meeting

L-R: The FTC’s Bruce Hoffman (center) with (L-R) Jennifer Patterson (Arnold & Porter), Dina Kallay (Ericsson), Eva Hampl (USCIB) and Patrick Hubert (Orrick Rambaud Martel)

On September 5, against the backdrop of fast-changing business and policy practices with respect to antitrust and consumer protection, the USCIB Competition Committee held a joint meeting with the International Chamber of Commerce (ICC) Competition Commission at Arnold & Porter Kaye Scholer LLP’s offices in New York. The meeting took place in conjunction with the 45th Annual Fordham Conference on International Antitrust Law (September 6-7). Participants in the joint ICC/USCIB meeting represented many jurisdictions, including Brazil, France, Germany, Mexico, Poland, the United Kingdom and the United States.

The keynote speaker was Bruce Hoffman, director of the Bureau of Competition at the U.S. Federal Trade Commission (FTC). Hoffman discussed the latest developments of antitrust policy with USCIB members, including for competition policy litigation and enforcement in the U.S., as well as upcoming FTC hearings, beginning next week in Washington, D.C., on the state of competition law and policy.

USCIB Competition Committee Chair Dina Kallay (Ericsson) referred to the FTC’s effort – which will look at the 21st-century landscape for competition, market concentration, consumer data,  vertical mergers and other topics – as “the mother of all hearings.” Kallay and USCIB Competition Committee Vice Chair Jennifer Patterson (Arnold & Porter) led participants through an agenda that included updates on issues including mergers, due process, cartels, the International Competition Network (ICN), and the Multilateral Framework on Procedures, on which USCIB and ICC recently submitted a joint statement.

The New York Convention Turns 60

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

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.

USCIB Welcomes New Partners to SDG Business Web Platform

From L-R: Ambassador Kevin Moley, Assistant Secretary for International Organizations (State Department), Peter Robinson, President and CEO (USCIB), and John Denton, Secretary General (ICC)

On the margins of this year’s annual United Nations High-Level Political Forum (HLPF) on the Sustainable Development Goals (SDGs) at UN headquarters in New York, USCIB convened a dinner for business, UN organizations and governments to highlight private sector action and impact towards sustainable development, using the UN 2030 Agenda for Sustainable Development as a blueprint.  The Businessfor2030 Dinner was co-organized with the International Chamber of Commerce (ICC) and its Swiss and UK National Committees, as well as with the International Organization of Employers (IOE).

In addition to announcing the expansion and globalization of the Businessfor2030 web platform, the dinner and its speakers also set the stage for the SDG Business Forum, organized by ICC and held at UN HQ on July 17.  Recently appointed Secretary General of the ICC John Denton addressed the Businessfor2030 dinner, issuing a challenge to the international community to unleash the power and potential of business in order to attain the 2030 objectives across economic, social and environmental areas.  “We need to help people understand the power of working with the private sector,” emphasized Denton.  Kris DeMeester, representing the International Organization of Employers, underscored the broad commitment of employers all over the world to advance sustainable development through employment, in the workplace and working closely with other social partners.

“Three years after the launch of the SDGs, we continue to take seriously that all companies, all sectors must engage to deliver on economic, environmental and social progress,” stated USCIB President and CEO Peter Robinson in his opening remarks. “No company can sit this out.  We commend our own members for having embraced the SDGs and moved forward to embed them not only in corporate responsibility programs, but increasingly across aspects of their planning and investment.”

The Businessfor2030 webplatform is a unique resource for business, governments and others in the UN community who are seeking to understand and pursue the SDGs.  It presents business examples of SDG action, and provides information on public-private partnerships. Established by USCIB in 2015, it now features over 250 examples of business action, covering more than half of the 169 specific SDG targets.