International Arbitration Clauses: The Good, the Bad, and How to Deal with the Ugly

Join the ICC International Court of Arbitration® and ICC USA/USCIB Southwest Arbitration Subcommittee for a luncheon programme that will examine decisions to be taken when drafting an arbitration clause, how to avoid crafting a clause that will cost extra time and money down the road and what, if anything, can be done when a dispute arises and the contract contains a poorly drafted arbitration clause. Lunch will be provided.

When: May 2, 2019

Time: 12pm- 2pm

Where: Quinn Emanuel Urquhart & Sullivan, LLP (865 S. Figueroa Street, 10th Floor Los Angeles, CA 90017)

For more information or to RSVP click here

ICC West Coast Conference

When: Monday, April 29,2019
Time: 1:30-7:00 PM
Where: Arnold & Porter (Three Embarcadero Center, San Francisco, CA 94111)

About: This conference presented by the International Court of Arbitration of the International Chamber of Commerce will address hot topics and recent developments in international arbitration of interest to practitioners on the West Coast. Topics include the developments, challenges and opportunities in the Asia-Pacific region; the ICC’s Belt and Road Commission; the ICC’s experience with the Expedited Procedure Provisions; and takeaways from the newly released ICC Commission Report on Emergency Arbitrator Proceedings.

Click here for further details about the program and the RSVP link.

Note that USCIB/ICC USA members receive a 5% discount on ICC conference registration fees if they register with the National Committee (NC) code. Please contact Kendall Thibeadeau at kthibeadeau@uscib.org for our NC code.

 

Seminar on International Arbitration of Life Sciences Disputes

International Arbitration of Life Sciences Disputes: Key Issues and Best Practices

Description:

The life sciences industry – pharmaceuticals, medical devices, diagnostics, vaccines, and related businesses – is huge, growing and global, with international licensing, sales contracts, research and development agreements, and joint ventures.

Each of these international ventures can lead to disputes, and well-positioned life sciences companies prefer international arbitration to litigation as the practical way to achieve confidential, widely enforceable judgments in a neutral setting.

Listen in as our distinguished panel of speakers explain why international arbitration is the preferred dispute resolution mechanism for life sciences disputes before they take a deeper dive into some of the complex issues that can arise in such disputes.

Then join us for a reception following the event.

Location: Boston, MA

Date: April 10, 2019

Time: 5:00- 7:30 PM

Register here : https://iccwbo.org/event/international-arbitration-life-sciences-disputes-key-issues-best-practices

The Singapore Convention: Expert Perspectives on its Significance for the Future of Dispute Resolution

When: Friday, April 5, 2019
Time: 1:15-2:15 PM
Where: Conference Room 8, United Nations Conference Building

About: For those who already have a UN pass, the ICC is hosting an event during the UNCITRAL Working Group III meeting that will examine the development, scope, and significance of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”) and its associated model law. The panelists will evaluate the use of mediation as an alternative or supplement to proceedings in other contexts, such as investment disputes, and assess the role of arbitral institutions in mediation.

USCIB Speaks at Annual OECD Investment Treaties Conference

Shaun Donnelly (USCIB) speaks at the 2019 OECD Investment Treaties Conference in Paris

OECD’s annual all-day conference in Paris on International Investment Treaties had a distinctly USCIB flavor this year.  The conference, held on March 11, included leading academics, lawyers, civil society and business representatives under the auspices of the Business at OECD (BIAC) team in addition to the government experts delegates in Paris for the OECD Investment Committee meetings.

This year’s conference theme was a “Level Playing Field for Foreign Direct Investment.” USCIB Vice President for Investment Policy Shaun Donnelly led the Business at OECD team, serving as a panelist during the discussion on addressing State-Owned-Enterprises (SOE) Investment Issues and again as the business representative on the final wrap-up panel.  In addition, USCIB member lawyers and leading international arbitrators Jeremy Sharpe of Shearman and Sterling and a former chief of investment arbitration in the State Department Legal Advisor’s Office, as well as David Rivkin of Debevoise and Plimpton, formerly president of the International Bar Association, spoke on different panels.  Deputy Assistant U.S. Trade Representative for Investment Policy Lauren Mandell was also a panelist.

“Investment policy issues, investment treaties and especially ‘ISDS’ international arbitration to resolve investment disputes are increasingly under political attack internationally so the conference did spark some interesting debate,” said Donnelly. “USCIB will be on the front lines defending strong investment treaties, including effective dispute settlement disciplines and arbitration provisions.”

Seminar on International Arbitration of Life Sciences Disputes

International Arbitration of Life Sciences Disputes: Key Issues and Best Practices

Description: The life sciences industry – pharmaceuticals, medical devices, diagnostics, vaccines, and related businesses – is huge, growing and global, with international licensing, sales contracts, research and development agreements, and joint ventures. Each of these international ventures can lead to disputes, and well-positioned life sciences companies prefer international arbitration to litigation as the practical way to achieve confidential, widely enforceable judgments in a neutral setting. Listen in as our distinguished panel of speakers explain why international arbitration is the preferred dispute resolution mechanism for life sciences disputes, before they take a deeper dive into some of the complex issues that can arise in such disputes. Then join us for a reception following the event.

Location: Boston, MA

Date: April 10, 2019

Time: 5:00- 7:30 PM

Register here : https://iccwbo.org/event/international-arbitration-life-sciences-disputes-key-issues-best-practices

Arbitration Committee Meetings Plan for Upcoming Year

USCIB President and CEO Peter Robinson speaks at the NY Arbitration Committee luncheon

USCIB co-hosted Washington, DC and New York City luncheons of its Arbitration Committee on January 25 and 29, respectively. The meetings brought together local arbitration professionals for an update on new initiatives, as well as a look back on 2018 accomplishments by the ICC International Court of Arbitration©.

Hosted by Washington, DC Subcommittee Chair, Jonathan Greenblatt of Shearman & Sterling, the Washington Luncheon featured a presentation by and discussion with the Secretary General of the ICC Court Alexander Fessas, who provided an update on the ICC’s cases in 2018, use of the expedited and the emergency arbitrator procedural rules and the ICC Court’s goals for 2019. This was followed by an interactive panel discussion with Grant Hanessian of Baker & McKenzie, Claudia Frutos-Peterson of Curtis, Mallet-Prevost, Colt & Mosle LLP, and Christopher Ryan of Shearman & Sterling, providing practical guidance for handling arbitrations involving states and state-entities and describing key differences when handling investor-state and commercial disputes. The program ended with USCIB General Counsel Nancy Thevenin providing an update on developments in USCIB’s Arbitration Committee.

Hosted by Hanessian, the New York Luncheon several days later featured executive summaries from key members of the ICC International Court of Arbitration, including President Alexis Mourre, Secretary General Alexander Fessas and Counsel for North American Cases Marek Krasula. Mourre provided insight into trends in U.S. cases during the past year and expected developments in the coming year. This was followed by a town hall-style Q&A moderated by Claudia Salomon of Latham & Watkins, who also serves as the vice president of the ICC Court, with questions about the ICC Court’s diversity initiatives, arbitrator appointment process and plans to publish some of its awards.

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.

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