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How Should the United States Supreme Court Have Decided in the Controversy over 28 U.S.C. § 1782(a)?

Tue, 2022-06-14 00:47

The Kluwer Arbitration Blog previously published an excellent summary by Jonathan Tompkins of the oral arguments held before the United States Supreme Court on March 23, 2022 on the future scope and application of 28 U.S.C. §1782, a federal statute that allows foreign or international tribunals and their litigants to ask the relevant district court to order witnesses who reside or can be found in its territory to give testimony or produce documents located there). It involves the consolidated cases of ZF Automotive US, Inc. v. LuxShare Ltd. and AlixPartners, LLP v. The Fund for Protection of Investor Rights in Foreign States.

Yesterday, the US Supreme Court issued a unanimous opinion (available here, authored by Justice Barrett) in the above-mentioned cases, holding that neither the DIS tribunal in ZF Automotive, nor the ad hoc BIT tribunal under the UNCITRAL arbitration rules in AlixPartners falls within the scope of §1782. To quote from Justice Barrett’s opinion:

“The current statute, 28 U.S.C. §1782, permits district courts to order testimony or the production of evidence ‘for use in a proceeding in a foreign or international tribunal.’ These consolidated cases require us to decide whether private adjudicatory bodies count as ‘foreign or international tribunals.’ They do not. The statute reaches only governmental or intergovernmental adjudicative bodies, and neither of the arbitral panels involved in these cases fits that bill.” Slip Op. at 1.

  1. The Opinion of the Supreme Court

The issue before the Supreme Court is whether the term “foreign or international tribunals” includes arbitral tribunals. As Tompkins correctly concluded in his prior post, the oral arguments gave no reliable indication as to how the Supreme Court would decide. But now we know.

The Court based its decision mostly on an analysis of the words, first taken separately, then the combination of “foreign tribunal” and “international tribunal”. The Court observed that the word “tribunal” expanded the 1958 wording “any court in a foreign country” to the 1964 version of a “foreign or international tribunal”. “[T]hat shift created ‘the possibility of U.S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.’” citing Intel, 542 U.S., at 258. The Court goes on to say:

“So a §1782 ‘tribunal’ need not be a formal ‘court,’ and the broad meaning of ‘tribunal’ does not itself exclude private adjudicatory bodies. If we had nothing but this single word to go on, there would be a good case for including private arbitral panels.” Slip Op. at 6.

The Court then looks at the “context,” because “tribunal” does not stand alone as it is part of the phrase “foreign or international tribunal”. Attached to these “modifiers”, the word is “best understood as an adjudicative body that exercises governmental authority.” Slip Op. at 7. Taking each of “foreign tribunal” and “international tribunal” in turn, the Court ventures that in either case Congress could have used it both in a governmental context or more generally. It concludes, without any further, deeper inquiry, that “‘foreign tribunal’ more naturally refers to a tribunal belonging to a foreign nation than to a tribunal that is simply located in a foreign nation.” Ibid. The Court finds that this reading of “foreign tribunal” is reinforced by the statutory defaults for discovery procedure, as §1782 permits the district court to “prescribe the practice and procedure, which may be in whole or in part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing.” (emphasis by the Court).

Where this author would find the reference to the practice and procedure of the international tribunal to include a reference to the evidentiary rules adopted by an international arbitral tribunal, the Court finds that “that would be an odd assumption to make about a private adjudicatory body, which is typically the creature of an agreement between private parties who prescribe their own rules.” Slip Op. at 8.

Similarly, in its analysis, the Court observes that the interpretation of “international tribunal” could go either way, “either (1) involving or of two or more “nations,” or (2) involving or of two or more “nationalities.” It finds that the “latter definition is unlikely in this context because “an adjudicative body would be ‘international’ if it had adjudicators of different nationalities––and it would be strange for the availability of discovery to turn on the national origin of the adjudicators.” Ibid.

Huh? Does the Court not know what the world of arbitration ordinarily calls an international arbitral tribunal? As in “a tribunal involved in arbitrating an international dispute”?1)In a simple google search, I found this definition: “The international arbitration tribunal is the independent and non-governmental panel of independent and impartial experts most often composed of three members nominated by the Parties (or appointed by the international arbitration institution, or more rarely by a national court) on the basis of their legal and practical expertise and knowledge, to render a final and binding award.” available here jQuery('#footnote_plugin_tooltip_41936_30_1').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_1', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });

“So understood,” the Court concludes, “‘foreign tribunal’ and ‘international tribunal’ complement one another; the former is a tribunal imbued with governmental authority by one nation, and the latter is a tribunal imbued with governmental authority by multiple nations.” It finds that this interpretation is confirmed by both the statute’s history and a comparison to §7 of the Federal Arbitration Act.

As to the history, the Court emphasizes that pursuant to the Act of Sept. 2, 1958, the Commission on International Rules of Judicial Procedure was charged “with improving the process of judicial assistance, specifying that the ‘assistance and cooperation’ was ‘between the United States and foreign countries’ and that the rendering of assistance to foreign courts and quasi-judicial agencies’ should be improved.” Slip Op. at 10 (emphasis by the Court).

This author wonders since when arbitral tribunals are no longer held to be “quasi-judicial agencies.” The Court demonstrates how little it understands about the breadth and depth of international commercial arbitration, when it wonders “[w]hy would Congress lend the resources of district courts to aid purely private bodies adjudicating purely private disputes abroad?” Slip Op. at 10. Obviously, it is unfamiliar with the fact that (1) most international disputes are purely private, and (2)  the vast majority of international disputes do not end up before courts or governmental quasi-judicial agencies, but before international arbitration tribunals. It shows no understanding of the implications of the New York Convention, which now includes 170 states.

Lastly, the Court also repeats the often heard complaint that §1782 would give more extensive rights to discovery than §7 FAA does domestically. The answer to that point is simple: the Commission was not charged with amending the Federal Arbitration Act. It was charged exclusively with broadening the availability of discovery internationally, even if the suggestion was made at the time for Congress to amend §7 FAA.

So why is it that the Supreme Court decided as it did? Were the arguments made on behalf of the petitioners not strong enough? Was it simply following the wishes of the Justice Department?

It is true that the arguments were deficient in showing the Supreme Court that the Second Circuit decision discussed here was built on quicksand. Neither written nor oral arguments argued why the issue was wrongly decided when the Second Circuit Court of Appeals (as the first court of appeals) was asked to rule on the question.

The circuits were split as to whether such assistance may be given to private foreign or international tribunals or only to tribunals that are “state-sponsored.” Holding that § 1782 permits discovery assistance to private arbitrations were the 4th, 6th and likely the 11th circuit: Servotronics, Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020); Abdul Latif Jameel Transp. Co. v. Fedex Corp., 939 F.3d 710 (6th Cir. 2019); and Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987, 993–98 (11th Cir. 2012), later withdrawn in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA) Inc., 747 F.3d 1262, 1270 n.4 (11th Cir. 2014) (“leav[ing] the resolution of the matter for another day”).

Holding that § 1782 does not permit discovery assistance to private arbitrations were the 7th, 5th and 2nd circuit: Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689 (7th Cir. 2020); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999), confirmed in El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F. App’x 31, 33-34 (5th Cir. 2009); and Nat’l Broadcasting Co. v. Bear Stearns, 165 F.3d 184 (2d Cir. 1999) (hereinafter “NBC”), confirmed in In re: Application and Petition of Hanwei Guo, 965 F.3d 96 (2d Cir. 2020).

The remainder of this post provides a summary of my personal conclusions following a more detailed analysis of the issue, more specifically of where the Second Circuit Court of Appeals went wrong in its 1999 case involving a §  1782 application, Nat’l Broadcasting Co. v. Bear Stearns Co., 165 F.3d 184 (2d Cir. 1999) (“NBC”).

NBC involved a dispute between a Mexican television company, TV Azteca S.A. de C.V (“Azteca”) and National Broadcasting Company and NBC Germany (“NBC”), in which NBC filed an ex parte § 1782 application to obtain testimony from six investment banking firms, including Bear Stearns Co., in anticipation of an ICC arbitration to be brought by Azteca in Mexico. When five of the six forms objected by filing a motion to quash, the district court (by Judge Robert W. Sweet) granted the motion and quashed the subpoenas originally authorized by Judge Deborah A. Batts. NBC appealed to the Second Circuit, which affirmed Judge Sweet’s ruling holding that the term “foreign or international tribunals” in 28 U.S.C. § 1782 does not “apply to proceedings before private arbitral panels”.

When Judge Sweet’s decision in NBC had come to the attention of Professor Hans Smit, the principal draftsman of § 1782 as amended by Public Law 88-619, 78 Stat. 995 (1964), he wrote an article in which he went into greater detail about how and why § 1782 applies to foreign and international tribunals. Hans Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of the U.S.C. Revisited, 25 Syracuse J. Int’l L. & Comm. 1 (1998).

Shortly after the adoption of the 1964 Act, he wrote a lengthy commentary about the entire overhaul of 28 U.S.C.: International Litigation under the United States Code, 65 Colum. L. Rev. 1015 (1965). The 1965 article was cited approvingly by Justice Ginsburg in Intel Corp. v. Advanced Micro Devices, 542 U. S. 241 (2004), the only other time that the Supreme Court had the opportunity to interpret § 1782 (but involving a different though related issue).

Rather than relying on Professor Smit’s 1965 and 1998 articles, the NBC court ignored the 1965 article and did away with the 1998 article in a footnote. Instead, the court seemingly found support in  Professor Smit’s 1962 article, Assistance Rendered by the United States in Proceedings Before International Tribunals, 62 Colum. L. Rev. 1264 (1962).

The court’s footnote read in pertinent part:

“It is perhaps enough to say … that Professor Smit’s recent article does not purport to rely upon any special knowledge concerning legislative intent, and we find its reasoning unpersuasive. By contrast, statements in the 1962 article, which was specifically relied upon in the House and Senate reports, are probative of Congress’s contemporaneous interpretation of the statutory language.”2)165 F.3d 184, 190 (2d Cir. 1999). jQuery('#footnote_plugin_tooltip_41936_30_2').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_2', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });

 

  1. NBC’s textual analysis

The NBC court’s textual analysis of § 1782 was nothing less than convoluted, as it wrote:

“In support of its position, NBC cites numerous references to private arbitration panels as ‘tribunals’ or ‘arbitral tribunals’ in court cases, international treaties, congressional statements, academic writings, and even the Commentaries of Blackstone and Story. This authority amply demonstrates that the term ‘foreign or international tribunals’ does not unambiguously exclude private arbitration panels. On the other hand, the fact that the term ‘foreign or international tribunals’ is broad enough to include both state-sponsored and private tribunals fails to mandate a conclusion that the term, as used in § 1782, does include both. . . In our view, the term ”foreign or international tribunal’ is sufficiently ambiguous that it does not necessarily include or exclude the arbitral panel at issue here. Accordingly, we look to legislative history and purpose to determine the meaning of the term in the statute.”3)Ibid. (emphasis added) jQuery('#footnote_plugin_tooltip_41936_30_3').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_3', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });

Judge Cabranes had to get to the conclusion that the term “foreign or international tribunal” is “sufficiently ambiguous” by first fabricating a triple negative with respect to the word “tribunal”: “does (1) not (2) unambiguously (3) exclude” private arbitration panels.4)As the amicus brief of Federal Arbitration Inc. in support of ZF Automotive points out, “courts should not presume that the language of a statute is ambiguous. See United States v. LaBonte, 520 U.S. 751, 757 (1997) (“We do not start from the premise that [the statutory] language is imprecise. Instead, we assume that in drafting legislation, Congress said what it meant.”). Similarly, courts may not impose their own limitations upon a plain and unambiguous statute or resort to legislative history to upend its commonsense construction.” [citing cases]. Brief of Federal Arbitration, Inc. (FEDARB) as Amicus Curiae in support of Petitioner, at 7. (last visited February 21, 2022) jQuery('#footnote_plugin_tooltip_41936_30_4').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_4', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); And then, in order to justify this tortuous conclusion, Judge Cabranes had to rely on a misinterpretation of Robinson v. Shell Oil Co., a 1997 Supreme Court case5)Robinson v. Shell Oil Co., 519 U.S. 337, 339 (1997). jQuery('#footnote_plugin_tooltip_41936_30_5').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_5', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });, which held that the term “employees” in some provisions of Title VII was broad enough to include “former” employees, whereas in other sections the term had to mean just “current” employees, and that therefore the use of the term in the section relevant in that case was ambiguous.6)Robinson v. Shell Oil Co. involved a Title VII action by Mr. Robinson, an African-American person who had been fired by Shell. Mr. Robinson filed a charge with the EEOC, alleging that Shell had discharged him because of his race. While that charge was pending, Mr. Robinson applied for a job with another company. That company contacted Shell, as Mr. Robinson’s former employer, for an employment reference. Shell allegedly gave him a negative reference in retaliation for his having filed the EEOC charge. Section 704(a) of Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment” who have either availed themselves of Title VII’s protections or assisted others in so doing. The issue was whether the term “employees” as used in §704(a) includes former employees, such that Robinson could bring suit against his former employer for post-employment actions allegedly taken in retaliation for his having filed a charge with the EEOC. The Court found that in several sections of Title VII the term “employee” necessarily meant to include former employees whereas in other sections it necessarily meant current employees. jQuery('#footnote_plugin_tooltip_41936_30_6').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_6', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });

In his 2006 opinion in In re Roz Trading Ltd., Judge William S Duffey, Jr., a federal district court judge in Georgia, summarized well the erroneous reasoning by the NBC court in a footnote:

“The Second Circuit started with the premise that the term ‘tribunal’ is ambiguous. In essence, the Second Circuit reasoned that even though the common usage and widely accepted definition of ‘tribunal’ include private arbitral bodies, it was free to impose its own limitations on the statute. This is precisely the type of conduct that courts engaged in statutory construction are directed to avoid. [United States v.] Turkette, 452 U.S. 576, 580, 587 (1981). Even if the Second Circuit found ‘contrary indications’ , 469 F. Supp. 2d 1221, 1227, n.4 (N.D. Ga. 2006) (other citation omitted).

  1. NBC’s reliance on 22 U.S.C. §§ 270-270(g) and the 1958 version of § 1782

The Second Circuit court relied on Professor Smit’s 1962 article where it described the proposed deletion of 22 U.S.C. §§ 270 – 270(g) in light of the 1958 version of § 1782. The court cited a passage in which Professor Smit “asserted” that “an international tribunal [as described in Section 270] owes both its existence and its powers to an international agreement.”

Even in that effort, however, the court got it wrong, as it not only failed to note that Professor Smit clearly referred to the 1958 version of § 17827)In fact, Prof. Smit quotes in this connection in a footnote the text of the 1958 version of §1782: “The deposition of any witness within the United States to be used in any judicial proceeding in any court in a foreign country with which the United States is at peace may be taken before a person authorized to administer oaths designated by the district court of any district where the witness resides or may be found. The practice and procedure in taking such depositions shall conform generally to the practice and procedure for taking depositions to be used in courts of the United States.” 62 Colum. L. Rev. at 1267, n. 18. jQuery('#footnote_plugin_tooltip_41936_30_7').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_7', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); rather than the then not yet existing 1964 version, but the court also took this passage completely out of context: Professor Smit was discussing “international tribunals” in connection with the history of Section 270 in the 1930s.8)The language quoted by the NBC court is followed by this sentence: “The correctness of this view was sustained by the United States–German Mixed Claims Commission when the American agent tried to invoke the 1930 act.” 62 Colum. L. Rev. at 1267. From the context I surmise that the word “owes” in the sentence quoted by the NBC court has a typo and that it should read “owed” instead. jQuery('#footnote_plugin_tooltip_41936_30_8').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_8', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });

 

  1. The 1964 Act and Professor Smit’s 1965 Commentary

The amendments to Title 28 of the U.S. Code were signed into law by President Johnson on October 3, 1964, “to improve judicial procedures for serving documents, obtaining evidence, and proving documents in litigation with international aspects.”9)For a full report on the activities of the Commission on International Rules of Judicial Procedure, including the text and explanatory notes of all the reform measures developed by the Commission and the Project on International Procedure of the Columbia University School of Law (the “Project”), see Fourth Annual Report of the Commission on International Rules of Judicial Procedure, H.R. Doc. No. 88, 88th Cong., 1st Sess. (1963). The explanatory notes are reprinted almost verbatim in S. REP. No. 1580, 88th Cong., 2d Sess. (1964) [herein  the “Senate Report”]. Professor Smit was the Director of the Project and the Reporter for the Commission. jQuery('#footnote_plugin_tooltip_41936_30_9').tooltip({ tip: '#footnote_plugin_tooltip_text_41936_30_9', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });

The intent of the 1964 Act was to liberalize all domestic procedures in aid of foreign procedures. In fact, the reforms were premised on the hope that their principle of liberality in rendering aid to foreign courts and litigants will find widespread acceptance abroad. The 1964 Act as drafted by the Project on International Procedure at Columbia Law School was adopted by Congress without encountering any objection.

As a former research associate and assistant of the late Professor Hans Smit, who (as noted above) was the principal drafter of the 1964 amendments to 28 U.S.C., I have some knowledge as to how he wrote in general, and specifically how § 1782(a) was intended to function – alongside the other changes that the 1964 Act brought to 28 U.S.C.

For one, Professor Smit believed in brevity and conciseness, by using only necessary words while omitting all words that are superfluous. As he noted in a footnote to his lengthy 1965 article, “[t]he term ‘tribunal’ was chosen deliberately as being both neutral and encompassing. Any person or body exercising adjudicatory power is included.” 65 Colum. L. Rev. at 1021, n. 36.

In the body of the article, on the same page, he emphasized explicitly the breadth of the term “tribunal”:

“The term tribunal encompasses all bodies that have adjudicatory power, and is intended to include not only civil, criminal, and administrative courts (whether sitting as a panel or composed of a single judge), but also arbitral tribunals or single arbitrators.” 65 Colum. L. Rev. at 1021.

Although this explanation of the word “tribunal” was used in connection with the meaning and breadth of §1781, the same meaning was to be attributed to “tribunal” in all other sections of Title 28. Thus, for example, Professor Smit refers in footnote 71 to his writings on § 1782 to the same broad concept:

“71. The term “tribunal” embraces all bodies exercising adjudicatory powers, and includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts. See SENATE REPORT 7-8. On the use of the term tribunal in other sections of the Act, see notes 36-38, 53 supra and accompanying text.” 65 Colum. L. Rev. at 1026.

  1. Section 1782 Today

Reliance on Professor Smit’s explanations of § 1782, whether in his 1965 article or any of his later articles, is not really necessary: as even the Supreme Court found in the present case, the word “tribunal”, whether 100 or 60 years ago, or at present, has always included arbitral tribunals.

In 1923, the Protocol on Arbitration Clauses (the so-called Geneva Protocol of 1923) distinguished arbitral tribunals and judicial tribunals. In 1964, (as Professor George Bermann explained in his amicus brief in the Servotronics case) the Supreme Court found that in submitting a labor dispute to private arbitration rather than the National Labor Relations Board, the union was “resort[ing] to a tribunal other than the Board.” Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964). Today, the increased use of international commercial arbitration makes that the use of the word “tribunal” as referring to an arbitral tribunal is ubiquitous.

As for the applicability of § 1782 to investment arbitration, it clearly makes no difference whether the tribunal deals with commercial or investment arbitration. The artificial structure built by the Second Circuit’s opinion in the AlixPartners case (also written by Chief Judge Cabranes) has no foundation in the text, structure or history of the statute.

As noted previously, Professor Smit wrote in 1965, “the term ‘tribunal’ was chosen deliberately as being both neutral and encompassing.” In my opinion, that includes both tribunals created by pursuant to an international treaty, such as the Court of Justice of the European Union (CJEU), and arbitral tribunals in international arbitration.

 

  1. The District Court’s Discretionary Authority

The Supreme Court in Intel pointed out that § 1782 authorizes, but does not require, discovery assistance, and it developed certain factors that a district court ought to take into account as guidelines when it exercises its discretion. This is especially relevant with respect to discovery assistance as it applies to foreign or international arbitration. For example, as the district court may not know what rules of evidence the tribunal will apply, it may well decide to deny discovery assistance to an “interested person” if sought before the arbitral tribunal has been constituted.

Since the §1782 application in ZF Automotive (one of the cases presently before the U.S. Supreme Court for decision) relates to a discovery request prior to the commencement of the arbitration proceeding, the Supreme Court ought to remand the case to the district court so that it can decide whether to continue to grant the discovery request or to further limit it or deny it – at least until such time as a complaint in arbitration has been filed and an arbitral tribunal has been formed.

The above ideas are elaborated in a more in-depth article I hope to publish in the forthcoming issue of the American Review of International Arbitration.

 

  1. So How Should the Supreme Court Have Decided?

It is clear to me that Justice Barrett’s opinion is not very convincing since its reasoning borders on the unacceptable – and that it is plainly wrong. It surprises me that this is a unanimous decision. It appears that the entire Court may have little understanding of the importance of international commercial arbitration to the United States and the international community and how much § 1782 helps improve international arbitration.

Or, if it does understand that importance, perhaps the Court does not believe the argument made on behalf of Petitioners that recognizing that § 1782 extends to arbitral tribunals will not unduly burden the district courts.

If that was the true reason, the Supreme Court’s decision is most regrettable. It will have given preference to an unfounded fear of overburdening the district courts over the need to serve the international community which more and more makes international or cross-border discovery available in international commercial arbitration.

It may be that a future Congress will have the same enlightened vision as the Congress of 1958 showed by its appointment of, and charge to the Commission on International Rules of Judicial Procedure. If that should happen, as optimists certainly hope, they may decide to amend § 1782 and while they are at it, amend Section 7 of the Federal Arbitration Act.

 

Eric van Ginkel, FCollArb, FCIArb, J.D. (Leiden University 1964), J.D. (Columbia University 1969), LL.M. in Dispute Resolution (Straus Institute for Dispute Resolution, Pepperdine University 2003), is an independent international arbitrator and mediator. He is also an Adjunct Professor at both the Law School of the University of Texas at Austin and the Straus Institute for Dispute Resolution at the Caruso Law School at Pepperdine University. During the calendar year 1966, Mr. van Ginkel was a research associate and assistant to Professors Hans Smit and Richard Pugh for the Project on European Legal Institutions at Columbia Law School.

References[+]

References ↑1 In a simple google search, I found this definition: “The international arbitration tribunal is the independent and non-governmental panel of independent and impartial experts most often composed of three members nominated by the Parties (or appointed by the international arbitration institution, or more rarely by a national court) on the basis of their legal and practical expertise and knowledge, to render a final and binding award.” available here ↑2 165 F.3d 184, 190 (2d Cir. 1999). ↑3 Ibid. (emphasis added) ↑4 As the amicus brief of Federal Arbitration Inc. in support of ZF Automotive points out, “courts should not presume that the language of a statute is ambiguous. See United States v. LaBonte, 520 U.S. 751, 757 (1997) (“We do not start from the premise that [the statutory] language is imprecise. Instead, we assume that in drafting legislation, Congress said what it meant.”). Similarly, courts may not impose their own limitations upon a plain and unambiguous statute or resort to legislative history to upend its commonsense construction.” [citing cases]. Brief of Federal Arbitration, Inc. (FEDARB) as Amicus Curiae in support of Petitioner, at 7. (last visited February 21, 2022) ↑5 Robinson v. Shell Oil Co., 519 U.S. 337, 339 (1997). ↑6 Robinson v. Shell Oil Co. involved a Title VII action by Mr. Robinson, an African-American person who had been fired by Shell. Mr. Robinson filed a charge with the EEOC, alleging that Shell had discharged him because of his race. While that charge was pending, Mr. Robinson applied for a job with another company. That company contacted Shell, as Mr. Robinson’s former employer, for an employment reference. Shell allegedly gave him a negative reference in retaliation for his having filed the EEOC charge. Section 704(a) of Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment” who have either availed themselves of Title VII’s protections or assisted others in so doing. The issue was whether the term “employees” as used in §704(a) includes former employees, such that Robinson could bring suit against his former employer for post-employment actions allegedly taken in retaliation for his having filed a charge with the EEOC. The Court found that in several sections of Title VII the term “employee” necessarily meant to include former employees whereas in other sections it necessarily meant current employees. ↑7 In fact, Prof. Smit quotes in this connection in a footnote the text of the 1958 version of §1782: “The deposition of any witness within the United States to be used in any judicial proceeding in any court in a foreign country with which the United States is at peace may be taken before a person authorized to administer oaths designated by the district court of any district where the witness resides or may be found. The practice and procedure in taking such depositions shall conform generally to the practice and procedure for taking depositions to be used in courts of the United States.” 62 Colum. L. Rev. at 1267, n. 18. ↑8 The language quoted by the NBC court is followed by this sentence: “The correctness of this view was sustained by the United States–German Mixed Claims Commission when the American agent tried to invoke the 1930 act.” 62 Colum. L. Rev. at 1267. From the context I surmise that the word “owes” in the sentence quoted by the NBC court has a typo and that it should read “owed” instead. ↑9 For a full report on the activities of the Commission on International Rules of Judicial Procedure, including the text and explanatory notes of all the reform measures developed by the Commission and the Project on International Procedure of the Columbia University School of Law (the “Project”), see Fourth Annual Report of the Commission on International Rules of Judicial Procedure, H.R. Doc. No. 88, 88th Cong., 1st Sess. (1963). The explanatory notes are reprinted almost verbatim in S. REP. No. 1580, 88th Cong., 2d Sess. (1964) [herein  the “Senate Report”]. Professor Smit was the Director of the Project and the Reporter for the Commission. function footnote_expand_reference_container_41936_30() { jQuery('#footnote_references_container_41936_30').show(); jQuery('#footnote_reference_container_collapse_button_41936_30').text('−'); } function footnote_collapse_reference_container_41936_30() { jQuery('#footnote_references_container_41936_30').hide(); jQuery('#footnote_reference_container_collapse_button_41936_30').text('+'); } function footnote_expand_collapse_reference_container_41936_30() { if (jQuery('#footnote_references_container_41936_30').is(':hidden')) { footnote_expand_reference_container_41936_30(); } else { footnote_collapse_reference_container_41936_30(); } } function footnote_moveToReference_41936_30(p_str_TargetID) { footnote_expand_reference_container_41936_30(); var l_obj_Target = jQuery('#' + p_str_TargetID); if (l_obj_Target.length) { jQuery( 'html, body' ).delay( 0 ); jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight * 0.2 }, 380); } } function footnote_moveToAnchor_41936_30(p_str_TargetID) { footnote_expand_reference_container_41936_30(); var l_obj_Target = jQuery('#' + p_str_TargetID); if (l_obj_Target.length) { jQuery( 'html, body' ).delay( 0 ); jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight * 0.2 }, 380); } }More from our authors: International Investment Protection of Global Banking and Finance: Legal Principles and Arbitral Practice
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Empirical Analysis of National Court Judgements in Commercial Arbitration: What Do the Data Tell Us?

Mon, 2022-06-13 06:05

On June 6, 2022, the Journal of International Arbitration Special Issue on Empirical Work in Commercial Arbitration, was released, edited by Dr Monique Sasson, Dr Crina Baltag, Roger P. Alford, Matthew E.K. Hall, under the general editorship of Prof. Dr Maxi Scherer. The Special Issue also includes articles authored by Prof. Loukas Mistelis, Prof. Dr Maxi Scherer, Dr Ole Jensen, Giammarco Rao, Laurence Shore, Vittoria De Benedetti, Mario de Nitto Personè, Cecilia Carrara, Elina Mereminskaya, Ioana Knoll-Tudor, Arthur Dong, and Alex Yuan.

The empirical research featured in this Special Issue is based on the Kluwer Arbitration Database (“Database”) and relies on a data set that includes all national court decisions on recognition, enforcement and setting-aside of international commercial arbitration awards available in the Database and rendered from January 1, 2010, to June 1, 2020. The empirical research comprises 504 vacatur actions and 553 recognition and enforcement actions. National courts in 74 different jurisdictions issued these decisions.

The research coded every argument raised by respondents in opposing the recognition and enforcement of awards under Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as well as every argument raised by respondents in attempting to set-aside awards based on the grounds in Article 34 of the UNCITRAL Model Law on International Commercial Arbitration.  Several other grounds, outside the two instruments mentioned above have been identified in the Database.

This type of empirical research is routinely done in investment arbitration, but it is rarely attempted in commercial arbitration. Understanding success in enforcement and setting-aside proceedings is usually left to reliance on anectodical evidence, which is unsatisfactory. Moreover, it is necessary to consider the data from several jurisdictions to understand the extent to which the general impression that commercial arbitral awards are ultimately upheld by the courts is correct.

The empirical research concerned court judgments involving 104 claimant nationalities (50% of the cases were from 16 nationalities; the US was the largest percentage at 8.8%) and 107 respondent nationalities (50% of the cases were from 14 nationalities; the US was the largest percentage at 9.8%).

The majority of these court judgements arose from administered arbitrations. There were 110 different arbitral institutions (9 institutions administered 48% of the relevant awards) mentioned in the court judgments. The probability of an award being enforced was 78% in all actions filed in proceedings administered by the nine most represented arbitral institutions. In vacatur proceedings, 75% of the applications filed by respondents seeking to set-aside the award were rejected (thus, a 75% success rate in preserving the award).

 

The research first analyzed the general data and then addressed certain specific issues:

(i) Invalidity of Arbitration Agreements and Applicable Law —  Professor Scherer and Dr. Jensen analyzed the challenges to the validity of arbitration agreements, which were at issue in almost one-fifth of the database court decisions.

(ii) Non-Signatories — Professor Mistelis and Dr. Rao addressed the ‘extension’ of the arbitration agreement to non-signatories threatened the enforcement of the award.

(iii) Pathological Clauses — Mr. Shore, Dr. De Benedetti and Dr. De Nitto Persone looked at this jurisdictional objection, which was raised in 21% of the Database enforcement cases and successful only in 23% of the cases.

(iv) Conflicts of Interest — Dr. Carrara considered the issue of conflicts of interest, impartiality and independence of arbitrators.

(v) Enforcement of Annulled Awards — Professor Baltag analyzed the enforcement of awards vacated at the seat.

(vi) Public Policy — Dr. Sasson analyzed the decisions on public policy. Objections based on public policy were raised in 44% of recognition and enforcement proceedings and in 38% of setting aside proceedings. The success rate of these objections was low: 19% and 21%, respectively.

(vii) Annulment, Recognition and Enforcement Proceedings in Latin America — Dr. Mereminskaya addressed the most recent jurisprudential approaches to international arbitration in Latin America, specifically Argentina, Colombia, Costa Rica, Chile, Dominican Republic, Mexico and Peru.

(viii) Annulment, Recognition and Enforcement Proceedings in France — Dr. Knoll-Tudor examined NY Convention and annulment cases in France.

(ix) Recognition and Enforcement Proceedings in China. Dr. Dong and Dr. Yuan analyzed judgements by the Chinese courts.

 

 General Conclusions to be Drawn From the Data  

i) The Low Vacatur Application Success Rate: 23% (19% in the nine largest jurisdictions) without significant variations between courts in various jurisdictions.

ii) The High Enforcement Success Rate: 73% (71% in the nine largest jurisdictions), again without significant variations between courts in various jurisdictions.

 

It is noteworthy that, despite the lack of uniformity in the setting-aside legislative acts across the world, the percentages of confirmations of awards under national arbitration acts, and of recognition and enforcement of foreign awards under the New York Convention are very similar (77% and 73%).  This indicates that the general impression that setting-aside proceedings are parochial and not especially arbitration-friendly, because of a lack of an international convention regulating them, is misguided.

Second, there is no statistically significant evidence that the choice of arbitration institution will measurably affect enforcement outcomes. The ICC represented over 20% of cases in the data set; there was no evidence that this institution fared better than others in terms of enforcement or vacatur action outcomes. This database also highlights the widespread use of arbitration institutions from around the world, from Albania to Zambia.

Third, international commercial arbitration is overwhelmingly a private affair. Government parties features in only 6 % of the cases in the Database. Moreover, regardless of whether or not there was a government party in the arbitration, there is little evidence of a “home field” advantage. That is, there is no direct evidence connecting the nationality of the parties and the outcome of the vacatur or enforcement proceeding.

Fourth, the most common grounds for challenge are not the most successful. Arguments based on public policy or invalid arbitration agreement are most frequently raised by respondent in enforcement proceedings, but are relatively unsuccessful. Similarly,  arguments based on public policy and inability to present one’s case are most frequently raised in the vacatur context, but are relatively unsuccessful (“no notice of arbitrator appointment” was the most successful).

 

 

This empirical analysis is only a starting point. There are many unanswered questions that flow from this study. We have not analyzed, for example, questions such as the cost or duration of arbitration, the composition of tribunals or demographics of arbitrators, the enforcement of arbitration agreements. Further research is needed to answer these and other questions.

Finally, the articles in the Special Issue offer a detailed empirical analysis of national court enforcement of international commercial arbitration awards. But, it is not comprehensive, and many questions require further research. We focused on analysis of cases since January 1, 2010, and coded national court proceedings that were included in the Database. There is an inherent selectivity bias in analyzing these cases, because the reporters and editors chose to include in that database only those cases that are likely to be relevant to the international commercial arbitration community.

There is no other equivalent database relating to international commercial arbitration decisions in national courts. One must therefore draw conclusions and extrapolate from these cases, recognizing the limitations of the database. We hope that the enthusiasm with which practitioners and scholars have embraced legal empiricism in the investment arbitration context will translate to the world of international commercial arbitration

 

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International Law Talk Podcast and Arbitration: What Data Tells You About International Commercial Arbitration?, In Conversation with Monique Sasson

Fri, 2022-06-10 07:59

International Law Talk is a series of podcasts through which Wolters Kluwer provides the latest news and industry insights from thought leaders and experts in the fields of International Arbitration, IP Law, International Tax Law and Competition Law.  Here at Kluwer Arbitration Blog, we highlight the podcasts focused on international arbitration.

 

In this latest episode, Prof. Dr Maxi Scherer, General Editor of the Journal of International Arbitration (JOIA) interviews Dr Monique Sasson, one of the editors of the Journal of International Arbitration Special Issue on Empirical Work in Commercial Arbitration, together with Dr Crina Baltag, Roger P. Alford, Matthew E.K. Hall.  The Special Issue also includes articles authored by Prof. Loukas Mistelis, Prof. Dr Maxi Scherer, Dr Ole Jensen, Giammarco Rao, Laurence Shore, Vittoria De Benedetti, Mario de Nitto Personè, Cecilia Carrara, Elina Mereminskaya, Ioana Knoll-Tudor, Arthur Dong, and Alex Yuan.

 

The podcast discussion considers and explores “What Data Tells You About International Commercial Arbitration?”, namely:

  • First, the reasons why the empirical research study has been commenced, why “data is the new gold”, and research based on data has become a hot topic in recent years.  In addressing these questions, Monique Sasson highlighted that we have seen various empirical research data in investment arbitration, which enable users to predict possible outcomes of certain arguments. At the same time, such tendency is not visible in the commercial arbitration setting, where there is more “anecdotal evidence”, i.e. unverifiable and unquantifiable information, originating from “each other’s stories”.
  • Second, how the empirical research study is structured and what is comprised in the dataset.  The dataset is composed of judicial decisions rendered in setting aside and enforcement actions, more precisely 504 and 553 respectively, covering the time frame of the last ten years (January 2010 – January 2020).  The judgments originated from 74 jurisdictions, with 64% of which reflected the practice of 9 jurisdictions, namely Germany, the United States, Switzerland, Spain, the United Kingdom, the Netherlands, France, Brazil, and the People’s Republic of China.  The majority of these cases concerned arbitral awards in cases administered by institutions – over 100 arbitral institutions -, whereas ad hoc arbitrations constituted a smaller “fraction” of the data.
  • Third, what was done to the dataset and how it was coded.  The grounds for coding the dataset were divided into 19 groups for the setting aside and enforcement data. For the setting aside data, the grounds were based on Article 34 of the UNCITRAL Model Law. While for the enforcement data, the coding was based on Article V of the New York Convention.
  • Fourth, what the general and specific findings of the empirical research study were.  Among other things, some of the general conclusions, which Monique Sasson has noted to be “expected conclusions”, included the finding that the setting aside application success rate is 23%. At the same time, in the enforcement proceedings, such attempts are successful in 73% of cases.
  • Fifth, the findings of the research conducted by Prof. Dr. Maxi Scherer and Dr. Ole Jensen with respect to the grounds for invalidity of the arbitration agreements in 171 decisions.  The named decisions were coded with respect to the grounds for invalidity invoked in the setting aside or enforcement proceedings.  Some of the “surprises” related to the argument on formal invalidity of the arbitration agreement: although it is believed that it is one of the most frequently invoked grounds, the data does not confirm that.  The data showed that this ground was relied upon only in 9.3% of cases.  On the other hand, the two of the most “successful” grounds for the challenge were that (i) the arbitration agreement did not come into existence or was not applicable (36.5% success rate), and that (ii) one of the parties did not sign the arbitration agreement (42% success rate).  Finally, Prof. Scherer highlighted that there is a mismatch between the frequency in which the grounds for challenge are invoked and their success rates.

 

http://arbitrationblog.kluwerarbitration.com/wp-content/uploads/sites/48/2022/06/Trailer.mp4

 

Listen to the discussionWhat Data Tells You About International Commercial Arbitration?, In Conversation with Monique Sasson.

Follow the coverage of the International Law Talk arbitration podcasts on Kluwer Arbitration Blog here.

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The Intersection of International Arbitration and Sustainable Development: Perspectives from Sarajevo

Wed, 2022-06-08 01:41

On 18 March 2022, academics and arbitration practitioners convened in Sarajevo (Bosnia & Herzegovina) for an international conference dedicated to cutting-edge topics related to the intersection of international arbitration and sustainable development. This post outlines some of the highlights of a rich discussion that was part of a broader effort to engage the legal and academic communities in Bosnia and Herzegovina in the international reform processes in this area.

The conference was part of the annual training and a Willem C. Vis Pre-Moot, co-organized by the U.S. Department of Commerce Commercial Law Development Program (CLDP), the Faculty of Law of the University of Zenica, GIZ, Association ARBITRI and the American Chamber of Commerce Bosnia and Herzegovina Sarajevo. A diverse audience of Willem C. Vis Moot teams (from Azerbaijan, Bosnia and Herzegovina, Georgia, Germany, Kosovo and Saudi Arabia), representatives of the business sector and practitioners contributed to the richness of the discussions. Following the welcome address and introduction by CLDP representatives, the U.S. Embassy in Bosnia and Herzegovina and AmCham, the conference unfolded through two keynote speeches, two panels and an interactive presentation.

The two keynote speeches were dedicated to the law applicable to the arbitration agreement, and delivered by Mr. Steven Finizio (Wilmer Hale, London) and Prof. Dr. Helmut Ruessmann (Saarland University). In final session of the conference, Ms. Amanda Lee (Costigan King) and Honorable Virginia M. Covington (District Court Judge, Middle District of Florida) shared tips and best practices for a career in international arbitration. The session was moderated by Ms. Amina Hasanović (University of Zenica, Faculty of Law). The panels of the conference focussed upon the intersection between international arbitration and sustainable development and form the focus of this post.

 

Arbitrating for a Greener Future: How SDG Disputes are Changing the Landscape of International Arbitration

Ms. Nevena Jevremović (University of Aberdeen) opened the discussion by discussing the implications of the Sustainable Development Goals (SDGs) on trade and investment. Although the international arbitration jurisprudence is yet to see the first awards related to SDGs (including climate change), international instruments and procedural reforms are taking place on parallel tracks to prepare for the anticipated increase in caseload in this field. Given the fast pace and ambitious goals of the energy transition and adoption of green policies worldwide, many challenges lie on the horizon for policymakers and arbitration practitioners alike. More broadly, the need for accountability for adverse social, environmental, and human rights impacts of trade and investment is only increasing.

While States have taken steps to address these challenges – from the Paris Agreement to the UN 2030 Agenda to numerous soft law instruments – developing and capital importing countries are struggling to put in place a policy framework compliant with these international obligations while retaining foreign investments. KAB readers will be familiar with the concept of “regulatory chill”, which presents one of the main hindrances for adopting meaningful SDG legislation and measures. States are hesitant to disrupt their foreign investment protection regime for fear of facing lengthy and expensive investment arbitrations. While it is difficult to measure the extent and real effects of “regulatory chill”, it is a growing concern that modern investment protection treaties aim to address by expressly safeguarding the States’ right to regulate in the public interest.

Ms. Jevremović then reflected on SDG interactions and global value chains (GVCs), explained the existing international and national regulatory framework, and laid the groundwork for discussing the implications of SDG considerations for Investor-State Dispute Settlement (ISDS). She concluded with an example of a recent groundbreaking decision of The Hague District Court – Milieudefensie et al. v. Royal Dutch Shell – where the court ruled that the Shell group is responsible for its CO2 emissions and those of its suppliers. The court in that case further held that Shell must cut its CO2 emissions by 45% compared to 2019 levels. In its reasoning, the court heavily relied on scientific research and reporting on the effects of climate change and also various international instruments, primarily the UN Guiding Principles on Business and Human Rights, to interpret and apply the Dutch standard duty of care standard.

The decision is particularly noteworthy for two reasons. First, it embraces a broad, and some may say bold, take on the scope of responsibility carbon majors have in their supply chains for adverse climate change effects. Second, the decision builds on the famous Urgenda decision. On 20 December 2019, the Dutch Supreme Court ruled that the Dutch government has obligations to reduce emissions urgently and significantly in line with its human rights obligations. More specifically, it ordered the Dutch State to reduce greenhouse gas emissions by at least 25% as of late 2020 relative to 1990 levels.

The Dutch experience in Urgenda and with climate change policy more broadly illustrates certain of the concerns associated with regulatory chill noted above. The Dutch Climate Act entered into force on 1 September 2019, setting a framework for the development of policy geared towards a permanent and gradual reduction of greenhouse gas emissions in the Netherlands to a level that will be 95% lower in 2050 than in 1990, to curb global warming and climate change. However, in response to the Climate Act, RWE filed a claim against the Kingdom of Netherlands under the Energy Charter Treaty requesting compensation for banning the use of coal in electricity generation from 2030. One can expect the connecting points between liability for adverse climate change, social, human rights, and environmental impacts, the ISDS system, and climate change litigation to multiply going forward.

Dr. Kabir Duggal (Arnold & Porter) addressed the changing landscape of ISDS and the tension between investors’ rights and States’ rights to regulate in the public interest. He reflected on the high stakes of ISDS proceedings for less developed states and the role of human rights and environmental concerns in ISDS. Turning to the ongoing reform processes in ISDS, Dr. Duggal commented on the focus on procedural reforms in ISDS, particularly the reform options deliberated and developed in the UNCITRAL Working Group III (ISDS Reform). Considering that the mandate of WG III is limited to concerns and reforms associated with dispute resolution (such as the consistency of awards, costs and duration of the proceedings and ethical rules for ISDS adjudicators), the discussion of substantive issues, including SDG concerns, remains off the table of international bodies, at least for the foreseeable future. This isolated process cannot effectively resolve the most problematic issues concerning the States’ ability to regulate in the public interest while maintaining an attractive investment environment. Therefore, there is a risk of the reform process being another missed opportunity to bring about meaningful change in the field.

 

Shifting the Paradigm of Investment Arbitration: State Rights and Investor Obligations

Following the discussion about the changing landscape of global business and trade and ISDS, the second panel turned to explore the evolving positions of States and foreign investors in ISDS. Ms. Fahira Brodlija (GIZ) opened the discussion by highlighting the trajectory of the development of the existing ISDS system. Initially, bilateral investment treaties (BITs) and the ISDS clauses served a dual role: on the one hand, they were a safeguard for foreign investors from developed States venturing into developing States, while developing States used them as a tool to attract foreign investment.  The European Union, which is now the main advocate for the abandonment of ISDS and the establishment of a standing Multilateral Investment Court, once encouraged the conclusion of BITs among its Member States “as a means of establishing a favorable climate for private investment.” She noted the reversal in the attitude of States towards investment arbitration as a feature of their investment protection framework, and the growing tendency of states to safeguard their regulatory space, to the exclusion of direct recourse of foreign investors against States. This opens the door for the paradigm shift in the roles of investors and States in ISDS.

Mr. Arne Fuchs (McDermott Will & Emery) identified several approaches that could be applied to soften the tension between investment treaties and State rights to regulate. States have already started lowering investment protection standards, by exempting certain measures from the scope of investment treaty protection and judicial review. Mr. Fuchs noted that this may raise inconsistencies in practice and that a much better approach would be to change the perspective on the traditional investment protection standards and to engage directly with investors when adopting significant policies of public interest. In addition, Mr. Fuchs reflected on the possibility of using investment treaties to enforce States’ international obligations (e.g., in relation to the environment). As the notions of investment treaties as instruments of investment protection shift to a purpose od investment facilitation, the understanding of investor obligations and the State’s duties to comply with global environmental obligations will likely impact the outcomes of future investment arbitration cases.

Prof. Catherine Rogers (Arbitrator Intelligence) laid out the prospects of States acting as Claimants, rather than as Respondents as is the norm in ISDS. To illustrate the nature and implications of such actions by States, Prof. Rogers presented some prominent examples from US case law, where States acted as claimants – including an action by 40 US States against tobacco companies in the courts that resulted in a US$365 billion settlement. Prof. Rogers also highlighted the role of contingency fee arrangements in claims brought by States against private companies, as well as the high settlement rate of such cases. Finally, Prof. Rogers commented on the importance of international adjudication in any form and the prospects of increasing rates of State claims and counterclaims as an incentive for settlement.

 

***

 

It is undeniable that the world of international arbitration cannot exist in a vacuum and that it will have to tune into the challenging landscape of ESG regulations and disputes in the near future.   The conference laid the groundwork for future debates in this field among policy makers, practitioners and academics in Bosnia and Herzegovina, many of whom were among the Vis Moot participants who were in attendance. The full recording of the program is available online.

More from our authors: International Investment Protection of Global Banking and Finance: Legal Principles and Arbitral Practice
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