International Arbitration and Cross-Border Insolvency – Common Scenarios Encountered by Practitioners

When:
Hosted By:
ABA International Law Section and Russian Arbitration Association
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Location:
Radisson Collection Hotel, Moscow

2/1 Kutuzovskiy Avenue Bld. 1, Moscow

The conference will be accessible in person and virtually.  You can register here.

The topic of whether an arbitrator or a court should decide the question of arbitrability has been the subject of long-standing debate among international scholars and practitioners.  In First Options of Chicago Inc. v. Kaplan, the Supreme Court stated the general rule that “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakabl[e]’ evidence that they did so.”  514 U.S. 938. But what constitutes clear and unmistakable evidence of the intent to arbitrate arbitrability?

The U.S. District Court for the District of Delaware recently provided an example of an arbitration clause that contains such “clear and unmistakable” evidence to delegate questions of arbitrability to an arbitrator. In Nidec Corporation v. Seagate Technology LLC, Civ. Action No. 21-52 (D. Del. July 20, 2021), Nidec Corporation (“Nidec”) brought a patent infringement action against Seagate Technology LLC (“Seagate”) and other defendants.  Seagate, relying on the arbitration clause in the parties’ agreement, moved to compel arbitration.  Seagate argued that the arbitration clause requires the Court to delegate to an arbitrator the decision whether the agreement applies to the claims at issue.  Seagate relied on the following language in the agreement:

If the parties are unable to resolve any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, whether the dispute, controversy or claim asserted is able to be arbitrated … then either party will have the option to request that the dispute be finally determined by arbitration in accordance with the JAMS International Arbitration Rules.

Nidec argued that it only agreed to arbitrate disputes that arise under the agreement and Seagate should not be allowed to compel arbitration by declaring that each dispute between the parties is a dispute arising out of or relating to the agreement.    
Continue Reading Delaware Federal Court Must Abide By The Parties Decision To Delegate The Arbitrability Of The Dispute To The Arbitrator Even If The Arbitration Agreement Is Irrelevant To The Dispute

Strategies to Collect International Arbitration Awards

One of the problems that parties to international arbitration face is that the opposing party may attempt to move its assets so that if an award it entered against it, the assets will no longer be available to satisfy the award.  Here, we discuss a recent case in which

The Supreme Court has granted certiorari on an issue involving domestic arbitration that has divided the federal courts of appeal (Badgerow v. Walters, Docket No. 20-1143):

Do federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act (FAA) where the only

As the U.S. Supreme Court currently considers the issue of whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), the lower courts continue to receive applications for discovery assistance in international arbitration matters.  Section 1782(a) authorizes U.S. district courts to provide assistance to foreign or

Insolvency proceedings can create potential roadblocks for arbitration proceedings that require careful navigation. Arbitration proceedings are private contractual proceedings intended to resolve individual claims. In contrast, insolvency proceedings are public proceedings intended to resolve claims collectively. Yet, an arbitration within an insolvency proceeding can be useful for resolving individual claims that may help resolve the

Like some other international arbitration institutions, the International Centre for Dispute Resolution (“ICDR”) recently adopted amendments to its International Dispute Resolution Procedures (the “2021 ICDR Rules”).  The ICDR’s amendment became effective on March 1, 2021. The amendments, according to the ICDR, aim to “promote greater efficiency and economy by addressing the early disposition of issues, emphasizing the use of mediation, and expanding the applicability of the expedited procedures. Importantly, the rules also place an increased emphasis on arbitrators’ ethical obligations.”  The 2021 ICDR Rules also address challenges and concerns related to the COVID-19 pandemic, including the use of video, audio, and other electronic means of communication.

Notable and significant revisions include:

Authority of International Administrative Council (“IARC”)

Article 5 of the 2021 ICDR Rules expressly authorizes IARC to (1) determine challenges to the appointment or continuing service of an arbitrator; (2) decide disputes regarding the number of arbitrators to be appointed; (3) determine whether a party has met the administrative requirements to initiate or file an arbitration; (4) in case of parties disagreement, determine the initial place of arbitration.

Joinder

            The joinder rules have been expanded in Article 8(1) as now the joinder is permitted after the constitution of the tribunal if the tribunal determines that the joinder is appropriate and the additional party consents to be joined.

As we have previously reported, International Court of Arbitration (“ICC”) also recently expanded its joinder rules.
Continue Reading Revised ICDR 2021 Rules Are Now In Effect

In our recent post, we discussed the split in the federal appeals courts over whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), which authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district.

The parties in a $238-million dispute over the construction of the third set of locks for the Panama Canal is raising issues concerning alleged conflicts of interest on the part of the International Chamber of Commerce (“ICC”) arbitrators in the United States District Court for the Southern District of Florida.[1] The case may resolve