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Puma v. Estudio 2000: Three Learned Lessons

Kluwer Arbitration Blog - Sun, 2017-05-28 21:00

José María de la Jara & Julio Olórtegui

Back in 2010, an arbitral tribunal composed by Luis Ramallo García (chairman), Miguel Temboury and Santiago Gastón ordered Puma to pay € 98 million to Estudio 2000 for the wrongful termination of their distribution contract.

Notably, Mr. Gastón – appointed by Puma – did not sign the award. It was later revealed that he was not given a chance to deliberate. Even though he had a discrepancy regarding the compensation to be awarded to Estudio 2000, surprisingly, his fellow arbitrators met without notifying him, changed the content of the previously agreed project and finished writing the award. The arbitrators even managed to sign it and notify the parties that same day.

On 15 February 2017, the Spanish Supreme Court declared the two arbitrators professionally liable for excluding Mr. Gastón from the deliberation procedure, and obliged them to pay Puma € 1’500,000.00 plus legal interests.

The decision of the Spanish Supreme Court constitutes an international landmark in relation to the deliberation process. In this post, we will open the arbitrator’s black box to dive into such process, explain its basic rules and suggest several tips to protect an award in difficult deliberations.

 

Lesson No. 1: consensus should not be the main goal

As Berger points out, deliberation is a joint effort to identify the relevant issues and exchange arguments, ideas and reflections that allow weighing the different options available to the arbitral tribunal.

Let’s be clear: deliberation is not tied to consensus.  As Sunstein and Hastie argue, deliberations should provide a group (e.g. arbitrators) as much information as possible.  Discussion should be encouraged. Better and more information allows the higher cost of arbitration to be translated into deeper analysis and a well sustained decision. A fair and accurate decision does not necessarily have to be unanimous.

High-level discussion, however, should not drive to anarchy. As Levy explains, the chairman is responsible for structuring, overseeing and coordinating the deliberation procedure.  Hence, he should act as a concertmaster to coordinate the exchange of ideas. Specifically, the chairman should:

  • Be an inquisitive and quiet leader. Social psychology shows that members of the group might remain silent not to contradict the opinion of those with a higher hierarchical position. Therefore, chairmen should promote the presentation of the ideas of their co- arbitrators, before issuing their opinion. This lowers the chances of an arbitrator failing to disclose relevant information only because it does not coincide with the chairman’s opinion.
  • Prime critical thinking. When the majority of the group has taken an argumentative line and the goal is to achieve consensus, the third arbitrator might be predisposed to withhold opposing information, in order to avoid reputational damage. Chairmen should try changing the rules of the game, by assigning priority to information sharing, allowing a deeper analysis even when the majority of the group has taken an initial position.
  • Assign roles. To incentive unbiased discussion, the chairman could assign arbitrators to prepare a specific position depending on their specialty. Then, the other members of the group could adopt the role of the devil’s advocate, assuming an opposing position. This technique allows the chairman to ensure that each arbitrator feels confident enough to shape her ideas and to disclose opposing opinions.

 

Lesson No. 2: treat deliberation with respect

The deliberative procedure is shaped by the principle of collegiality. Each of the steps of the deliberation should be interpreted in such a way as to guarantee the right of the arbitrators to have the opportunity to express their opinion on the construction of the award.

Collegiality was breached in the Puma Case. Two arbitrators held the final part of the deliberation while the third one was away in Madrid.

Such issue should have been fixed easily. As held in Sefri v. Komgrap, a phone call, an email or a videoconference would have been enough to give Mr. Gastón the opportunity to express his ideas in relation to the final draft of the award and protect the principle of collegiality.

The result was a lack of opportunity by one of the arbitrators to convey his opinion on the final draft of the award. As stated in Guangying Garment v. Eurasia, excluding an arbitrator from the deliberation process breaches the collegiality principle. Furthermore,  an arbitral award without deliberation breaches the defense and the right to be heard rights of the party that appointed the excluded arbitrator, (Société des télécommunications internationals du Cameroun v. SA France Télécom), and such decision does not qualify as an award (Goller v. Liberty Mutual Insurance).

Beyond the form, what really matters is that each arbitrator is given the opportunity to express his or her opinion. The formalities of the deliberative procedure shall be flexible, adapting themselves to the arbitrators and not the other way round.

In order for tribunals to respect such procedure, arbitrator practitioners might find the following tips useful:

  • Set time aside to meet your co-arbitrators. The amount of shared information when deliberating depends on the trust that exists between the arbitrators. Therefore, the chairman should arrange a meeting as soon as possible.
  • Begin deliberation as soon as possible. Deliberation should begin – gradually – upon the reception of the written submissions of both parties. In this regard, Rivkin recommends that the arbitrators could travel and meet for the procedural conference to conduct a preliminary discussion. However, preliminary discussions should be protected with disclaimers to avoid any impression of bias (“I would like to hear more about this at the hearing because maybe I could change my position”).
  • Reed Retreat. Arbitrators should meet one day before the hearings to discuss the case and how it should proceed. This allows the arbitrators to focus their attention and clear preliminary discussions out of the way.
  • Allow deliberation time during breaks and after the hearing. Approximately four breaks occur during each hearing day. Arbitrators should use these pauses to discuss the evidence they have just witnessed and to deepen their understanding of the case. Moreover, arbitrators should never set the return flight for the same day on which the hearings end. The best time to deliberate is immediately after the hearings are over. At that moment, the evidence presented will still be fresh in the memory of the arbitrators.
  • Start writing soon. Ideas should be shaped and put into paper as soon as the tribunal has allowed a discussion. This prevents opinions from getting forgotten and allows the award to be completed in advance. It is not advisable to delay issuing an award only for style editing.

 

Lesson No. 3: protect yourself against toxic arbitrators

Arguably, if two arbitrators knowingly exclude a third one from the deliberation process, they could qualify as “toxic arbitrators”.

As Bernandini points out, it is during the deliberations that these arbitrators show their true face. They reveal whether they are truly independent and impartial or whether they will block the participation of a member of the tribunal, disappear from the discussions, “plant” an annulment, or execute some other poisonous practice.

In such scenarios, arbitration practitioners might find these practices useful:

  • Register the deliberation. Leave a record of who attended, the content of the discussions, the agreements and pending points.

While this practice is critical, our research suggests that it is not the general rule. The result of a survey of more than 155 practitioners in Latin America showed that the arbitrators registered, on average, only 1.78 out of 10 deliberations. Moreover, 54.2% of the respondents replied that they had not recorded any of their last 10 deliberations.

  • Actively seek to participate in the deliberation. Send emails to your co-arbitrators. If they are not answered, consider sending formal communications, copying the arbitration center that administers the dispute. These could serve in an eventual annulment process to prove that you were excluded from the deliberations.
  • If you are being excluded, consider breaking the confidentiality of the deliberations. Depending on the specific case, one may choose to (i) send a formal communication to the co-arbitrators, (ii) notify the parties and the arbitration center that the principle of collegiality is being violated; or (iii) focus on generating evidence of such violation on the understanding that the toxic arbitrators will not change their position and that it may be more convenient for the parties to set the award aside. In any case, do not be afraid to express your opinion in a dissenting vote. Carefully consider attaching records of lack of deliberation and even evaluate your enrolment as a witness in the judicial process.

 

Final remarks

A tribunal is more than a mere sum of its parties. Through deliberation, they are capable to render an award with a deeper understanding of the dispute. Hence, excluding an arbitrator from the deliberation procedure betrays the will of the parties expressed in the arbitration agreement.

It is necessary to actively fight against this toxic practice. Write. Discuss. Attend conferences. Raise your voice and report toxic practices. After all, putting on a gas mask and pretending we are protected will only allow the virus to spread and generate more followers.

More from our authors:

The post Puma v. Estudio 2000: Three Learned Lessons appeared first on Kluwer Arbitration Blog.

Second Detroit law firm moves into GR market amid numerous local personnel shifts - MiBiz

Google International ADR News - Sun, 2017-05-28 18:00

Second Detroit law firm moves into GR market amid numerous local personnel shifts
MiBiz
At Bodman, Gates is a member of the banking, business, and litigation and alternative dispute resolution practice groups. He was joined in the new office by Darren Burmania, a banking and business law attorney who also ... The firm aims to more than ...

Conflict Coaching in person or via Skype

Communication and Conflict Blog - Sun, 2017-05-28 06:15
Conflict Coaching - 1-to-1 support for people who are experiencing a difficult relationship or unresolved conflict to create more effective ways of responding.

The Dubai-DIFC Judicial Committee and DIFC Conduit Jurisdiction: A Sequel in Four Parts – The DIFC Courts under Siege (Part 2)

Kluwer Arbitration Blog - Sat, 2017-05-27 14:13

Gordon Blanke

In a blog earlier this year, I reported in some detail on the Dubai-DIFC Judicial Committee’s first decision in Daman v. Oger (see Cassation No. 1/2016 (JT) – Daman Real Capital Partners Company LLC v. Oger Dubai LLC, hearing of 19 December 2016, published by the JT in both English and Arabic). By way of reminder, the Dubai-DIFC Judicial Committee (or simply the “Judicial Tribunal” or “JT”) was established by the Ruler of Dubai by virtue of Decree No. (19) of 2016 in order to resolve conflicts of jurisdiction between the onshore Dubai and the offshore DIFC Courts (see http://kluwerarbitrationblog.com/2016/11/29/ruler-of-dubai-establishes-new-judicial-committee-to-resolve-conflicts-of-jurisdiction-between-the-on-and-offshore-dubai-courts-will-it-undermine-the-difc-courts-acquired-status-as-a-condui/). The regular reader of this Blog will remember that in particular the creeping jurisdiction of the DIFC Courts as a conduit jurisdiction for the enforcement of domestic arbitral awards rendered onshore for onward execution against assets of award debtors in mainland Dubai has given rise to concerns of jurisdictional conflict with the onshore Dubai Courts (see, e.g., ARB 003/2013 – Banyan Tree Corporate Pte Ltd v. Meydan Group LLC, ruling of the DIFC Court of First Instance of 2nd April 2015). Daman v. Oger concerned two parallel actions: (i) an application for annulment of a DIAC award rendered in mainland Dubai as the seat of the arbitration before the onshore Dubai Courts in their capacity as the curial courts and (ii) an application for the recognition and enforcement of that award before the DIFC Courts for onward execution in the offshore DIFC. The JT found in favour of the Dubai Courts’ proper jurisdiction and ordered the DIFC Courts to cease from entertaining the case. I concluded in my previous blog on the subject that the JT’s decision was likely based on a “first-seized” rule given that the application for annulment before the onshore Dubai Courts had been filed first and had hence preceded the application for recognition and enforcement before the offshore DIFC Courts. In that sense, apart from the absence of a desire to execute the subject DIAC award onshore, there was no risk that the findings of the JT in Daman v. Oger would pose a threat to the acquired status of the DIFC Courts to serve as a conduit jurisdiction for the recognition and enforcement of domestic non-DIFC awards for onward execution in mainland Dubai.

Since its decision in Daman v. Oger, the JT has dealt with two further arbitration-specific applications that are variations of the theme. In the first one (see Cassation No. 2/2016 (JT) – Dubai Water Front LLC v. Chenshan Liu, hearing of 19 December 2016, published by the JT in both English and Arabic), the JT adopted the same reasoning as it had done in Daman v. Oger, the only difference being that the subject award was intended for onward execution onshore. Like in Daman v. Oger, the DIFC Courts were invited to “cease from entertaining the case”. However, unlike in Daman v. Oger, an application for annulment was made to the Dubai Courts only after the award creditor had instigated proceedings for recognition and enforcement before the DIFC Courts. In other words, on this occasion, the JT appears to have ignored the “first-seized” rule, which gave rise to hope in Daman v. Oger that the DIFC Courts’ acquired status of a conduit jurisdiction remained unaffected by the decisions of the JT. Unsurprisingly, the three DIFC Court members of the JT (Chief Justice Michael Hwang, Omar Al Muhairi and Sir David Steel) did not hesitate to dissent. The DIFC Court members’ dissent is explained by Deputy Chief Justice Sir David Steel’s findings in the related enforcement proceedings before the DIFC Courts in the following terms:

“Nobody is challenging or could challenge that the Dubai Courts are the Court of the seat, but the suggestion that the Dubai International Financial Centre has no jurisdiction hits the buffers at the start namely that only the DIFC Courts have jurisdiction to consider the enforcement of the award in the DIFC. It has exclusive jurisdiction.  It is somewhat unfortunate that the proposition as regards the Arbitration Law is set out without reference to the decision in Banyan Tree […].” (Giacinta v. Gillam LLC [2016] DIFC ARB 004, para. 23)

In other words, Sir David relied on the acquired status of the DIFC Courts as a conduit jurisdiction in the terms defined in Banyan Tree and hence recognised the DIFC Courts’ competence to recognise and enforce a domestic non-DIFC award for onward execution onshore. Sir David further clarified that “[t]he Dubai Courts are the court of the seat and thus the Dubai Courts clearly have jurisdiction to determine an application to annul the award.” (Giacinta v. Gillam LLC [2016] DIFC ARB 004, para. 15) The DIFC Courts, in turn, “have exclusive jurisdiction in respect of the enforcement of awards within the DIFC: no question of their jurisdiction can arise.” (ibid.)

In the second case (see Cassation No. 3/2016 (JT) – Main Logistics Solutions LLC and other v. Wadi Woraya LLC and others, hearing of 19 December 2016, published by the JT in both English and Arabic), dealing with a DIFC enforcement action in relation to a foreign award rendered in London, the JT found that there was no conflict under Art. 4 of Decree No. (19) of 2016 as no application (for annulment of the subject award) had as yet been made to the onshore Dubai Courts. The JT therefore dismissed the case. In other words, the award debtor’s application before the JT was premature and could hence not be entertained. The JT found likewise in a later decision (see Cassation No. 5/2016 (JT) – Gulf Navigation Holding PJSC v. DNB Bank ASA, hearing of 19 December 2016, published by the JT in both English and Arabic) albeit in relation to the enforcement of a foreign judgment, clarifying that for the jurisdiction of the JT to be triggered, there had to be a positive (both courts seizing jurisdiction or issuing conflicting judgments) or a negative (both courts abandoning jurisdiction) conflict of jurisdiction.

The JT’s most recent decisions in the terms discussed above give reasoned concern that the DIFC Courts are under siege, evidently deprived of their own liberty to define their proper jurisdiction within the meaning of the Judicial Authority Law as amended (Dubai Law No. 12 of 2004 in respect of The Judicial Authority at Dubai International Financial Centre as amended (by Dubai Law No. 16 of 2011). More specifically, even though initially protected from hostile attacks on their acquired status as a conduit jurisdiction, the DIFC Courts are now under threat to lose that status, in particular in the light of the JT’s decision in Dubai Water Front. That said, the reasoning of the JT’s decisions is extremely sparse and there remains leeway for recent developments to fall back into line with what was believed to have been the status quo. It is to be hoped that future decisions on the subject will put onto a firm footing the JT’s approach to the division of jurisdiction between the onshore Dubai and the offshore DIFC Courts in the recognition and enforcement of non-DIFC awards. In this context, it is important to repeat that the formalisation of a first-seized rule by making it a firm part of the regime of mutual recognition under Art. 7 of the Judicial Authority Law as amended would assist the resolution of any pending and future jurisdictional conflicts between the two courts. As demonstrated on repeated occasion elsewhere (see my various previous blogs on the subject), the conduit jurisdiction status of the DIFC Courts complies with the UAE Constitution and is not contrary to UAE public policy; nor does it violate the jurisdictional gateways under Art. 5(A)(1) of the Judicial Authority Law as amended read together with Art.42(1) of the DIFC Arbitration Law.

In any event, given the inherent powers of the JT and the status of the JT’s decisions (JT decisions being non-appealable, see Art. 7, Decree No. (19) of 2016), little can presently be done other than … wait … for a cavalry to the rescue!

More from our authors:

The post The Dubai-DIFC Judicial Committee and DIFC Conduit Jurisdiction: A Sequel in Four Parts – The DIFC Courts under Siege (Part 2) appeared first on Kluwer Arbitration Blog.

It is a small world…

ADR Prof Blog - Sat, 2017-05-27 05:53
I am at the end of a two week trip to Cambodia.   I was co-leading a trip for our students to study rule of law development in a post-conflict country.  One of  the amazing experiences we had was spending three days with the Arbitration Council of Cambodia learning about labor arbitration in the country.  Photos … Continue reading It is a small world… →

Jerry Cohen, Attorney, JAMS, to Speak at TKG's Trade Secret ... - PR.com (press release)

Google International ADR News - Sat, 2017-05-27 02:03

Jerry Cohen, Attorney, JAMS, to Speak at TKG's Trade Secret ...
PR.com (press release)
Jerry Cohen, Attorney, JAMS, to Speak at TKG's Trade Secret Mediations in 2017: What You Need to Know Live Webcast - on PR.com.

and more »

Meticulous mock courtroom in Austin could help attorneys with trial prep, dispute resolution - Austin Business Journal

Google International ADR News - Fri, 2017-05-26 13:52

Austin Business Journal

Meticulous mock courtroom in Austin could help attorneys with trial prep, dispute resolution
Austin Business Journal
To fully recreate the courtroom experience, the firm also created replica jury room and judge's chambers attached to the courtroom — 6,000 square feet in all, to prepare for trials or host alternative dispute resolution like mediation or even a rare ...

Ecuadorian BITs’ Termination Revisited: Behind the Scenes

Kluwer Arbitration Blog - Thu, 2017-05-25 21:00

Javier Jaramillo, Pérez Bustamante & Ponce and Universidad San Francisco de Quito and Camilo Muriel-Bedoya

As in García-Marquez’s novel, the denunciation of the Ecuadorian bilateral investment treaties (“BITs”) represents a chronicle of a death foretold and the Ecuadorian National Assembly and Ecuador’s President have taken one of the final steps to terminate them. Along the way, the internal termination proceedings have been highly politicized, international investment arbitration has been demonized, and more questions than answers have arisen.

Notwithstanding the fact that states may sovereignly denunciate an international treaty and that BITs usually do regulate their termination, the reasons behind such a polemical decision need to be addressed and cautiously assessed. This post aims to review the steps and arguments that the Republic of Ecuador has embraced, their flaws, and the proposals of what is yet to come in the next years.

 

Termination proceedings

Since the 1960s, Ecuador has negotiated 30 BITs, 27 of which entered into force. Only one of them – executed with Egypt – terminated in 1995, and almost a decade ago, in 2008, Ecuador denunciated nine of these BITs: those executed with Uruguay, the Dominican Republic, Guatemala, El Salvador, Cuba, Nicaragua, Honduras, Paraguay and Romania (the last six will still be in force until 2018, due to their survival clauses).

Consequently, 17 BITs remained in force and a second denunciation round took place, which has its origins in 2008. The year 2008 is not a coincidence as Ecuador’s new Constitution was then enacted bringing with it a particular and controversial prohibition under its article 422, which provides:

Treaties or international instruments where the Ecuadorian State yields its sovereign jurisdiction to international arbitration, in contractual or commercial disputes, between the State and natural persons or legal entities cannot be entered into (…).

According to the Ecuadorian Constitution and local law, denunciation of certain international treaties requires the National Assembly’s approval and, additionally, a previous and binding opinion issued by the Constitutional Court. This process was followed and the Constitutional Court considered that all the BITs were incompatible with article 422, a flawed conclusion that would apparently legitimize the termination proceedings.

 

Fallacies and unconstitutionalities

The following fallacies have been constantly repeated during the denunciation proceedings, namely: (i) that the BITs are unconstitutional; (ii) that local law replaces the protections and guarantees of a BIT; and, (iii) that BITs imply more foreign investment.

The termination of the remaining 17 BITs has been mainly based on their so-called unconstitutionality. Unfortunately, the political arguments surpassed the constitutional ones and incompatibility was sought where there was none. The Ecuadorian Constitution forbids entering into treaties or international instruments that provide jurisdiction to international arbitration, though with an important specification: contractual or commercial disputes.

Thus, the Constitutional Court did not consider that international investment arbitration is a very different animal from international commercial or contractual arbitration. In general terms, the former addresses breaches of international law, particularly of international standards protected by a BIT (e.g. fair and equitable treatment, full protection and security, most-favored-nation treatment, etc.), while the latter focuses on contractual breaches of a commercial nature, which do not necessarily derive in breach of international law. Tribunals have historically pointed out these differences in several awards.

Regrettably, the National Assembly seconded this argument and a special committee in charge of analyzing the denunciations issued several reports, recommending the termination of the remaining 17 BITs entered into with Argentina, Bolivia, Canada, Chile, China, Finland, France, Germany, Italy, the Netherlands, Peru, Spain, Sweden, Switzerland, the United Kingdom, the United States, and Venezuela. Finally, on May 3, 2017, the National Assembly’s Plenary approved the termination of all these BITs, though under the undermined fallacies mentioned above.

The National Assembly replicated the Constitutional Court’s unconstitutionality argument without distinguishing that the Constitution does not forbid international investment arbitration. Likewise, the National Assembly considered that the 2008 Constitution represents a fundamental change of circumstances and, misunderstanding article 62 of the Vienna Convention on the Law of Treaties, it also justified the termination of the BITs under that provision.

As mentioned above, the 2008 Constitution does not forbid international investment arbitration; therefore it follows that the BITs are not unconstitutional and that the enactment of the new Constitution does not represent a fundamental change of circumstances. Accordingly, this argument, which tried to legitimize the denunciations, is far from being flawless or, ironically, constitutional.

Interestingly, the reports considered that the BITs do not allow partial termination (i.e. the dispute resolution articles) and, under article 44 of the Vienna Convention, recommended the termination of the entire treaty in each case. The Ecuadorian law, nonetheless, expressly establishes that termination, renegotiation or a constitutional amendment could be sought, but the latter options were not considered.

 

Substitutes, correlation and causation

Furthermore, the vicarious interpretation that local law would give enough guarantees to foreign investments (i.e. specifically, as noted by the National Assembly, under the Ecuadorian Organic Code of Production, Commerce and Investments) is undermined. Local law does not entirely replace the international obligations that a treaty protects, even if similar standards are conceived. Also, a neutral dispute resolution mechanism is of utmost importance for foreign investors and, when it comes to Ecuadorian courts, unfortunately they are not particularly known for their celerity, and neither for not being politicized or interventionist. Finally, it would be naive to conclude that BITs are necessarily equivalent to more foreign investment.

Correlation does not imply causation, and the mere existence of a BIT does not automatically attract foreign investment. The attractiveness of a country is not just determined by the treaties it has executed, and more complex variables play an important role. Of course, local laws are significant, but if there is no legal certainty, independent courts and political stability (to say the least), foreign investors would naturally be more attracted to other jurisdictions that fulfill these requirements. Conversely, the drastic termination of BITs, instead of improving and amending them through negotiations, does raise concerns within the international community and could give a wrong message to foreign investors.

 

What is next?

Although Ecuador’s fate is uncertain and investors are raising many questions, some lights can be followed and the future debates are apparent from the Government’s conduct.

Back in 2013, President Correa created the Commission for Comprehensive Audit of the Reciprocal Investment Treaties and the Investment International Arbitration System (CAITISA, for its initials in Spanish). CAITISA finally made public its report and conclusions on May 8, 2017. Among the general recommendations, CAITISA proposes to eliminate or limit certain BIT provisions, namely: to exclude dispute resolution clauses, to include rights to be claimed by host states, to give standing to the indigenous communities, and to establish performance standards for investors such as technology transfer obligations, capital flow regulations, and others.

However, CAITISA’s main recommendation focuses on sponsoring an Alternative Model BIT (“AMB”), suggesting a reinforced focus on human and labor rights, together with protections for the indigenous communities and nature. Also, the AMB proposes giving host states standing to bring claims under the BIT, enforcing sustainable development standards, and supports the creation of an international investment court.

Moreover, the AMB suggests including a specific and strict definition of “investment”, requiring two-year minimum duration and limited to direct property owned by the investor. Also, the AMB recommends limiting the “investor” definition by requiring potential investors to have active operations in the host state for at least two years, revealing ownership information, and providing the possibility of losing investor standing if fraud or corruption in the management of the investment is proven.

The AMB recommends to expressly and strictly define the fair and equitable treatment standard, to exclude umbrella and most-favored-nation clauses, to limit survival clauses by establishing fixed-term provisions requiring the States’ express intent for renewal, and to exclude protection for indirect expropriation. Interestingly, the AMB suggests replacing full protection and security clauses with provisions enforcing the international minimum standard of treatment of foreign investors.

 

Finish them (?)

Aside from legal misunderstandings, Ecuador’s decision to terminate its BITs seems to be odd and inconsistent with its current foreign policy, which seeks to attract foreign direct investment to palliate the economic crisis. In December 2015, Ecuador enacted a Public-Private Partnerships law seeking to attract foreign investment by providing tax incentives to upcoming strategic allies. The law, although with some flaws, recognizes investors’ right to activate dispute resolution clauses under the different BITs in case controversies relating to their investment arise. Additionally, on November 11 2016, Ecuador executed the Accession Protocol to the Multiparty Trade Agreement with the European Union and, on 1 January 2017, Ecuador joined the Trade Agreement.

Finally, on May 16, 2017, President Correa issued the executive decrees that order the termination of the BITs and the notification to the treaties’ state parties. Now, the new negotiations will depend upon President Correa’s recently elected successor. The terminations, however, may complicate this process, especially considering that several countries expressed their willingness to renegotiate the current BITs instead of terminating them. Hopefully, Ecuador’s next steps will contribute to reinforce the foreign investment regime and not the country’s isolation.

More from our authors:

The post Ecuadorian BITs’ Termination Revisited: Behind the Scenes appeared first on Kluwer Arbitration Blog.

$95.6 million to woman who lost legs in building collapse - Philly.com

Google International ADR News - Thu, 2017-05-25 17:41

Philly.com

$95.6 million to woman who lost legs in building collapse
Philly.com
The arbitrator, Roscoe, 63, is a veteran lawyer who works as a neutral arbitrator for JAMS, an international alternative dispute resolution firm. The company does not comment on its cases. Roscoe was selected by the plaintiffs' lawyers to allocate the ...

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$95.6 million to woman who lost legs in building collapse - Philly.com

Google International ADR News - Thu, 2017-05-25 17:31

$95.6 million to woman who lost legs in building collapse
Philly.com
The arbitrator, Roscoe, 63, is a veteran lawyer who works as a neutral arbitrator for JAMS, an international alternative dispute resolution firm. The company does not comment on its cases. Roscoe was selected by the plaintiffs' lawyers to allocate the ...

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Council Selects Patterson as New Planning Board Member - Montgomery Community Media

Google International ADR News - Thu, 2017-05-25 11:00

Montgomery Community Media

Council Selects Patterson as New Planning Board Member
Montgomery Community Media
Patterson, who will serve a four-year term, is the principal at Jade Solutions LLC, which supplies consulting services including product management, proposal development, alternative dispute resolution and facilitation services. Other council members ...

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Verdict in JAMS Lawsuit

Business Conflict Blog - Thu, 2017-05-25 09:37

A few months ago we posted disconcerting news of a dissatisfied party to a California arbitration who, rather than seeking to vacate the award pursuant to state or federal arbitration statutes, sued the arbitrator and the service provider, alleging that the arbitrator’s qualifications had been misrepresented on the provider’s website.

The matter went to trial and the jury found that, while it could not reach a conclusion as to the accuracy of the arbitrator’s representations, the claimant had failed to show any damage resulting from reliance on those representations, and the trial judge dismissed the claims.

A complete account of the result may be found here.   The case has caused some in the profession to reassess (with caution) how they market and promote their services as neutrals.  If such possible liability provokes a “cleaner” market, then perhaps some good may come of this.  But it would be at a very great cost.

From time immemorial, private commercial decision-making has been a boon to merchants who did not want lengthy and legal proceedings over essentially mercantile matters.  This goal is reflected in American arbitration statutes, narrowly circumscribing the bases on which an arbitration award can be subject to judicial scrutiny.  The mere fact that this claim was allowed to go to trial bodes poorly for the integrity of the arbitration process.  If the arbitrator’s behavior amounted to misconduct, vacatur under the statutes was available.  It did not, but the arbitrator was subjected to expensive public scrutiny regardless, along with the organization through which her services were engaged.  This is not good.

Judicial Economy in Investor-State Disputes

Kluwer Arbitration Blog - Wed, 2017-05-24 23:30

David M. Bigge

The recent mention of “judicial economy” in the award in Eli Lilly and Company v. Government of Canada provides an opportunity to consider judicial economy in investor-state arbitration more generally. In its award of March 16, 2017, the Eli Lilly tribunal determined that certain judicial interpretations of Canada’s patent law did not violate the substantive requirements of NAFTA Chapter Eleven. The claimant acknowledged during the proceedings that it had to prove a “dramatic change” in Canadian patent law to prevail on its claims. The tribunal found in its award that the claimant had not demonstrated such “a fundamental or dramatic change” in Canadian patent law, and therefore failed to establish a violation of NAFTA Article 1105 even under the Claimant’s broad interpretation of that provision (¶¶ 387, 389).

As a result of this finding, the Eli Lilly tribunal stated that it did not have to decide whether a decision by a state’s judiciary must rise to the level of a denial of justice in order to constitute a violation of Article 1105’s minimum standard of treatment provision, and that “judicial economy dictates that it should not do so.” (¶ 220, emphasis added). This reliance on judicial economy did not, however, restrain the Tribunal from opining on the matter for six further paragraphs, concluding (contrary to Canada’s argument) that “a claimed breach of the customary international law standard of treatment requirement of NAFTA Article 1105(1) may be properly a basis for a claim under NAFTA Article 1105 notwithstanding that it is not cast in denial of justice terms.” (¶ 223). The tribunal further adopted the Glamis Gold test for Article 1105, and noted that the application of Glamis Gold to a state’s judicial decisions could occur only “in very exceptional circumstances, in which there is clear evidence of egregious and shocking conduct. . . .” (¶¶ 222, 224). As the Eli Lilly tribunal did not base its decision in the case on this analysis, the discussion of judicial acts under Article 1105 must be considered obiter dictum.

Application of Judicial Economy in Investor-State Cases

Although “judicial economy” could refer to many efficiencies of arbitration, including preliminary awards, bifurcation, or consolidation, the Eli Lilly tribunal referred to “judicial economy” as the basis for refusing to decide certain legal issues presented by the parties – particularly difficult or novel issues – where there is another basis of decision. Judicial economy as applied in Eli Lilly is a prominent feature of WTO dispute resolution: the Appellate Body has long held that WTO panels “need only address those claims which must be addressed in order to resolve the matter in issue in the dispute.” Indeed, this rule is routinely applied in the WTO context, and is even discussed in the WTO’s online training program.

Judicial economy is not widely-addressed in investor-state awards, under ICSID or otherwise, and its application in practice is inconsistent. This inconsistency may at least in part be the result of the different sets of rules used for various disputes. The UNCITRAL Rules (1976) – the governing rules for the Eli Lilly dispute – require in Rule 32(3) only that the tribunal state the reasons upon which the award was based; they do not promote or prohibit judicial economy in awards. The tribunal in Spence v. Costa Rica, a CAFTA case using the UNCITRAL Rules (1976), was therefore able to state in a 2016 interim award that, “[t]o the extent that any point has not been expressly addressed in this Award it is for reason of judicial economy and an appreciation that an assessment of the point in question was not necessary for purposes of the Tribunal’s decision rendered herein.” The Chevron v. Ecuador tribunal, also operating under the UNCITRAL Rules (1976), likewise assured the parties that “[t]he Tribunal has . . . considered the Parties’ submissions and claimed relief at length; and the omission here of any reference to any part of such cases should not be taken as signifying otherwise.” It should be noted, of course, that the UNCITRAL Rules permit a party to request an additional award if the tribunal fails to address an issue raised in the proceedings, but the tribunal may decline to make the additional award if it considers the request to be unjustified.

Article 48(3) of the ICSID Convention, in contrast, expressly requires that an “award shall deal with every question submitted to the Tribunal,” a requirement reflected in Rule 47(1)(i) of the ICSID Rules. These provisions limit a tribunal’s ability to apply judicial economy in the same manner as the WTO. This does not mean, however, that ICSID tribunals can never invoke some aspects of judicial economy to streamline their awards. As the annulment committee in M.C.I. Power Group L.C. v. Ecuador explained,

[t]he obligation in Article 48(3) of the Washington Convention to deal with every question applies to every argument which is relevant and in particular to arguments which might affect the outcome of the case. On the other hand, it would be unreasonable to require a tribunal to answer each and every argument which was made in connection with the issues that the tribunal has to decide . . . . [T]he tribunal must address all the parties’ “questions” . . . but is not required to comment on all arguments when they are of no relevance to the award.

The M.C.I. explanation of judicial economy has been applied by a number of subsequent ICSID tribunals, including in Suez v. Argentina and Gremcitel S.A. v. Peru, both holding that “[c]onsiderations of judicial economy suggest . . . that the Tribunal can dispense with dealing with arguments . . . which have no impact” on the outcome. The line between a “question” and an “argument” may be difficult to draw, but this delineation is required by the ICSID Convention as explained by the annulment committee in M.C.I. In any event, while some exercise of judicial economy is permitted, an ICSID tribunal is not permitted to rule on the narrowest issue and leave the rest of the presented questions unanswered.

Rejection of Judicial Economy

Some arbitrators have expressly rejected the notion of judicial economy in investor-state disputes. In a separate opinion in S.D. Myers v. Canada, one arbitrator wrote:

This opinion will address those issues necessary to dispose of this first stage of this case, and in doing so will attempt to provide reasoning that is sufficiently well elaborated as to be a potential source of assistance in the future. With respect to some of these issues, it would be possible for me to reach a particular conclusion on one legal basis, and avoid considering other possible bases for reaching the same conclusion. I have not always, however, taken this path of maximum avoidance. The parties to this case have devoted a great deal of thought, energy and expense to arguing a variety of legal points and have expressly indicated their desire for some broad guidance for the future. I would think it might be rather diseconomic from their point of view for me to now refrain from expressing the opinion I have formed on some important points that have been fully debated in these proceedings and which will likely be of considerable ongoing interest.

“Completeness” and “the parties have invested time and effort in briefing these issues” are perhaps the most oft-cited bases for addressing legal matters unnecessary for the resolution of the dispute. For example, in Allard v. Barbados, a case administered by the PCA under the UNCITRAL Rules (1976), the claimant alleged that his property was subject to environmental degradation due to various acts and omissions by the Respondent. In a 2016 award, the tribunal ruled that the claimant failed to establish, as a factual matter, that his property was degraded, but nonetheless “for the sake of completeness” went on to assess the alleged acts and omissions of the respondent (¶¶ 139-140). The tribunal concluded after this unnecessary analysis that “even if it had found that there was a degradation of the environment . . . it would not have been persuaded that such degradation was caused by any actions or inactions of Barbados,” and therefore that the claimant had failed to establish causation (¶ 166). Despite the fact that the claimant had proven neither loss nor causation, the tribunal went on to conduct a detailed analysis of the alleged breaches of the BIT at issue, “having regard to the exhaustive compilation of the Parties’ pleadings and the joinder of issue.” (¶ 167).

Likewise, in KT Asia Investment Group v. Kazakhstan, an ICSID case, the tribunal dismissed for lack of jurisdiction on the ground that no contribution had been made by the investor that could comprise an “investment.” Nonetheless, the tribunal explained, “[f]or the sake of completeness and because the Parties have briefed these matters, the Tribunal will now briefly examine the other elements of an investment, i.e. duration and risk.” The Tribunal in Nova Scotia Power v. Venezuela followed a similar approach.

Perhaps the most interesting reference to judicial economy appears in the 2010 award in Merrill & Ring v. Canada. In Merrill & Ring, Canada had presented a jurisdictional time-bar argument that was credible and could have disposed of the entire case. Instead of addressing that issue, the Tribunal launched into a long discussion of fair and equitable treatment under NAFTA Article 1105’s minimum standard of treatment provision, which the tribunal admitted was “[t]he most complex and difficult question brought to the Tribunal in this case. . . .” (¶182). The Merrill & Ring tribunal defined Article 1105 more expansively than previous NAFTA tribunals, basing its interpretation on the concept of “reasonableness” and suggesting that regulatory transparency, legal stability, and legitimate expectations may be requirements of customary international law. This Article 1105 analysis, which has been heavily criticized by a number of scholars, comprises 26 pages and 64 paragraphs, before the award reveals that the tribunal was unable to reach a conclusion on Canada’s liability in that case (¶ 246).

The Merrill & Ring tribunal then turned to damages and found that even assuming Canada was found liable, the claimant had not established its damages to the satisfaction of the tribunal. It was only after the lengthy exegesis on Article 1105 and the conclusion on damages that the tribunal turned to the far simpler and less controversial topic, Canada’s time-bar objection. Having found that the claimant had failed to establish damages for its Article 1105 claim, the tribunal asserted that it was applying judicial economy to refrain from ruling on the time-bar objection.

Merrill & Ring’s supposed reliance on judicial economy was a perversion of the concept; in expansively and controversially interpreting NAFTA Article 1105, instead of resting only on the simpler damages issue or addressing the time bar objection at all, the tribunal made the process less – not more – economical.

Considerations in the Application of Judicial Economy

Several considerations come into account when determining whether to apply judicial economy in drafting an award. Above all, it is the economy of judicial economy that should drive its use. If it would be more efficient to resolve a dispute simply and quickly, without having to dedicate time to analyze complicated or difficult legal and factual issues, that should be the route chosen by the tribunal in order to minimize the financial burden on the parties.

Arbitrators must also consider their obligation to address the issues presented by the parties. If, as in the ICSID system, a tribunal is obligated to resolve every question submitted to it, such an obligation limits the tribunal’s discretion to invoke judicial economy. These concerns may be what drive some tribunals to address arguments, unnecessary for the disposition of the award, for the sake of “completeness.” Depending on the specific rule involved, however, such “completeness” concerns might be addressed by summarizing the parties’ arguments while refusing, on the basis of judicial economy, to rule on those issues. This was the approach taken, for example, in InterTrade Holding v. Czech Republic, a PCA case under the UNCITRAL Rules (1976), in which the tribunal ruled first that it did not have jurisdiction, and proceeded “for the sake of completeness” to detail the parties’ merits arguments without ruling on them (¶ 205).

Some arbitrators, like the concurring arbitrator in S.D. Myers, may also believe that they have a responsibility to develop an area of law perceived to be unclear. Such an impulse should be resisted. The arbitrators’ only obligation is to the parties to the arbitration, who are paying for an efficient and effective resolution of their dispute. Arbitrators in investor-state disputes can point to no authority for a broader responsibility to develop international law for future application. Furthermore, investment treaties reflect two (or more) sovereign parties’ agreement. Arbitrators should be mindful to minimize potential conflict between states on treaty interpretation issues. Extrapolation on the agreed terms of a treaty, where such extrapolation is unnecessary to render an award, is therefore unwarranted.

Finally, it should be noted that, as in all things in arbitration, the parties to the dispute have a role to play in this procedural issue. Parties can agree in the arbitration agreement, in terms of reference, or in draft procedural orders submitted to the tribunal, that the arbitrators should (or should not) utilize judicial economy. Indeed, tribunals who refrain from exercising judicial economy often cite the fact that the parties went through the effort of submitting various arguments, suggesting that the parties expect the tribunal to rule on each of those points. If parties wish the tribunal to be more economical, they can make that wish known prior to the drafting of the award. In particular, parties can agree that tribunals should determine whether there are dispositive preliminary issues that can resolve the case without a full analysis of the merits. Obviously such a request could also include bifurcation of proceedings, although judicial economy could be invoked without bifurcation where the tribunal determines that bifurcation is inappropriate.

David M. Bigge is an attorney at the U.S. Department of State, currently serving as the U.S. Agent to the Iran-U.S. Claims Tribunal and Deputy Legal Counselor in Embassy The Hague. Prior to this position, Mr. Bigge served as an attorney-adviser on the State Department team that represents the United States in investor-state disputes, and previously represented private clients in commercial arbitration. The views expressed herein are the author’s personal views, and do not necessarily reflect the views of the U.S. government.

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President Trump’s Negotiation Skills (or Lack Thereof) – Part 4

ADR Prof Blog - Wed, 2017-05-24 17:31
Political eons ago – 20 days ago, to be precise – President Trump had a successful negotiation of sorts. If you can remember that far back, that’s when the House of Representatives approved a health care bill that Mr. Trump advocated. In prior posts, I discussed Mr. Trump’s failure to win adoption of his original … Continue reading President Trump’s Negotiation Skills (or Lack Thereof) – Part 4 →

International Arbitration In London From The Perspective Of A Civil Law Lawyer: Rome I Regulation And Contractual Penalties

Kluwer Arbitration Blog - Wed, 2017-05-24 14:37

Petr Bříza and Tomáš Hokr

YIAG

International arbitration takes a great pride in being flexible, adjustable and thus very responsive to the needs of the parties involved. Indeed, in terms of international arbitration imagination has virtually no limits – nothing really prevents parties to an arbitration agreement from agreeing on an arbitration pursuant to the UNCITRAL Arbitration Rules, in the Spanish language, administered by SIAC, seated in Dubai, with Australian governing law or to opt not to include some of the features into the “arbitration package”. Of course this example is largely exaggerated and often times what appears to be a little creative may be justified for good reasons. Nevertheless, the unusual content of such an arbitration package may not only be impractical but also unpredictable as to the legal consequences. Such an arbitration then requires extra attention and vigilance on the part of the legal counsels.

We have recently encountered an interesting arbitration in this respect. This London-seated LCIA arbitration (London seat was chosen by the parties in the arbitration clause) arose over a complex dispute involving a cross-border petroleum transaction. A petroleum trader, a Czech entity, had agreed to purchase a bulk of petroleum products from another, Russian entity, to be delivered over a certain period of time. The transaction fell into the time frame when economic sanctions were imposed upon Russia by the EU, as a result of which the transaction was not carried out. The main issue subject to the arbitration proceedings that followed was the extent of the alleged damages.

The contract did not contain an agreement on a key provision, namely the law applicable to the contract. We all know very well, how important the inclusion of a choice of law clause in the contract is, at least it avoids a lot of uncertainty down the road. There are however, situations, when the choice of law is missing and one has to resort to conflict of laws rules, especially if the parties are unable to agree on the applicable law.

The LCIA Rules as well as the other arbitration rules are of little help, stating in Article 22.3 that the Arbitral Tribunal shall apply the law which it considers appropriate. In ordinary circumstances, if the prerequisites for the application of the CISG are met, the Tribunal should apply the CISG. The damages provisions of the CISG are not, however, very detailed. Art. 7(2) of the CISG suggests that any matters which are not expressly settled in the CISG are to be settled in conformity with the general principles on which the CISG is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

Here comes the tricky part. Within the EU, the conflict of law rules that determine the law applicable to contracts are harmonized by the Rome I Regulation. At the same time, Rome I excludes arbitration agreements from its scope. There is thus an ongoing discussion on whether arbitrators are under an obligation to apply the Rome I Regulation. On the one hand, it has been argued that the exclusion of the arbitration agreement in Rome I (Art. 1 para 2 e)) should be extended to arbitration itself since the Regulation is designed to complement Brussels I, which excludes arbitration from its scope. As a matter of fact, the recitals of Rome I refer only to national courts and are otherwise silent with regard to arbitral tribunals. This posture, therefore, comes to a conclusion that arbitrators are not required to apply Rome I and Rome I is thus only one set of conflict of laws rules among others to determine the most suitable applicable law in the absence of party choice. On the other hand, others argue that the term “court” used by Rome I must be broadly interpreted and it refers to any forum applying substantive law in adversary proceedings, arbitration included.

Actually, whether Rome I applies to a contract in arbitration proceedings may be a very relevant question, especially when a contract is concluded between non-EU parties. It is because Rome I has universal character (cf. Art. 2 of Rome I and no personal/territorial scope limitation in the text of Rome I, unlike Brussels I) which implies that Rome I is applicable without any additional link to the EU, be it the parties or the place of execution of the contract. Hence, the Regulation would even apply in litigation within the EU to a contract concluded and executed in a third country between two non-EU parties which, for any conceivable reason, come to a member state to litigate. If Rome I is to apply in arbitration in the way it does in the courts of member states, any agreement of the parties on the seat of arbitration within the EU would also determine the set of conflict of law rules and inherently also the governing law of the contract. Non-EU parties, by leaving the choice of law clause out of their contract (and thus relying on the private international law rules of either party’s state) but choosing an arbitral seat within the EU, for example, for enforcement purposes, may not always realize that by virtue of their agreement on a seat they build a kind of governing law clause into their contract (which may provide for different applicable law than the law determined by the private international law rules of either party’s state).

In our case, the arbitral tribunal not only has not contradicted the claimant’s position which has been to apply Rome I, the tribunal has even indicated that the application of Rome I is mandatory. This case is thus an interesting contribution towards the debate. However, it was not the only interesting issue arising in this arbitration.

When concluding a lengthy international contract, it is nearly impossible to anticipate all the legal consequences that may arise out of the contractual provisions in the later arbitral proceedings. What one should pay special attention to, however, are the provisions on damages. Despite the confidence brought by having some civil law system apply to the contract, appropriate considerations should be taken with regard to the composition of a tribunal. It is not uncommon in Europe that the tribunal consists of one English arbitrator, although one may encounter that situation in London more often than anywhere else. A civil law lawyer should note that English law has a particular interest in non-enforcement of the contractual penalties and, as our case demonstrates, English arbitrators are willing to (at least) consider application of the English rule against penalty clauses in contracts not only as a consequence of a choice of English law but also as a matter of public policy in cases, where another law is chosen.

It shall be noted that a London seat by itself in arbitration agreement will often not be sufficient to render a contractual penalty unenforceable. In fact, English doctrine limits applicability of the public policy exception to a very limited pool of cases. It has been applied to refuse to enforce a contract only under two circumstances: (i) if it would infringe fundamental English ideas of justice and morality (only in exceptional cases such as slavery) and (ii) if it tends to injure the public interest in a way which an English invalidating rule is designed to prevent. The latter then requires that the contract has relevant connections with England (other than the connection by reason of the forum where the dispute is held). Therefore, if one handles a dispute with non-English parties, where the facts are not in any way linked to England, there is ground for concern.

It is also appropriate to mention that not all contractual penalty clauses are unenforceable under English law. What is often labeled as a contractual penalty clause in civil law systems may include both a penalty clause, which is unenforceable, and a liquidated damages clause, which is permitted subject to certain conditions. In addition, recent development such as the English High Court’s judgement in Pencil Hill Limited v US Citta di Palermo S.p.A. suggests that contractual penalty-based awards may in fact be enforceable in England if moderated by an arbitral tribunal. The significance of such an approach is highlighted by the fact that moderation tools are inherent in most civil law systems.

Our case fell within the category of cases with no link to England. When drafting the contract, the parties simply chose London as a forum to arbitrate their contractual disputes. The arbitrator acknowledged that fact by ignoring the public policy exception and through enforcement of the contractual penalty under the Russian law.

As is common in international arbitration cases, what may have seemed at first glance like a pretty straightforward breach-of-contract/change-in-circumstances case involving the law of one country, revealed further reaching questions relating to the governing law of the contract and the enforcement of the contractual penalty. In the end, four different sets of conflict of law rules and three different legal systems were considered as potentially applicable to the contract. In contrast, and quite surprisingly, the breach-of-contract/change-in-circumstances has not been subject of greater controversy.

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Dickinson Wright's Intellectual Property Practice Recognized by IP Stars 2017 - PR Web (press release)

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