My New Arbitration Book

Hot off the presses, a thoroughly updated Arbitration casebook by Stephen Ware and Alan Scott Rau:

Available from Amazon, this book discusses arbitration law and practice clearly and reliably, with engaging context ranging from partisan political battles to a Justin Bieber tweet. Balanced and comprehensive, the book covers major types of arbitration in the United States―commercial (including securities and trade associations), labor, employment, consumer, insurance, medical, and religious―as well as important types of international arbitration, such as commercial, maritime, investment, and sports. A carefully constructed teaching tool, Arbitration intersperses contemporary disputes―involving Uber’s app, Donald Trump’s confidentiality agreement, Jay-Z’s impact on arbitrator diversity, and the relationship between gender and biology―among:

• All the major Supreme Court cases from 1953 through 2019;
• Current case law on evolving topics, such as delegation clauses, contracts formed by clicking links on cell phones, and substitutes for the class actions limited by Concepcion;
• The full text of the Federal Arbitration Act, New York Convention, and Panama Convention;
• Chapters divided into short, coherent sections suitable for a single class session; and
• “Questions to Review and Synthesize” after the reading for each class session.

Shareholders Lawsuits and Arbitration Clauses in Corporate Charters

Should the Securities and Exchange Commission permit arbitration clauses in a public company's charter? A member of the SEC recently said yes.

"For shareholder lawsuits, companies can come to us to ask for relief to put in mandatory arbitration into their charters," said Michael Piwowar. "I would encourage companies to come and talk to us about that."

As Reuters reports, "The issue garnered attention in 2012, when the SEC pressured private equity firm Carlyle Group L.P. to drop a mandatory arbitration requirement before the regulator would sign off on its IPO plans."

Piwowar's use of the word "mandatory" cuts against his position because, as the saying goes, "arbitration is a matter of contract," and contracts are consensual, not mandatory. Piwowar's position should rest of the view that a corporate charter is contractual so becoming a shareholder is consent to (agreeing to a contract that provides for) arbitration of disputes. In contrast, making arbitration "mandatory" sounds like "forcing" shareholders to arbitrate, which is likely what Piwowar's opponents will argue.

International Arbitration Conference in NY

Promising conference on international arbitration at Columbia Law School, May 24, hosted by the
American Arbitration Association International Centre for Dispute Resolution

Investment Arbitration Against Argentina

Award in bondholders' investment arbitration against Argentina. ICSID (International Centre for Settlement of Investment Disputes) is part of the World Bank

International Arbitration Essay Contest with Cash Prizes

McGill University in Montreal,Canada, will award the Nappert Prize in International Arbitration and $4000 Can. for a paper on commercial or investment arbitration.

Precedent and Lawmaking in International Arbitration

International Arbitrators as Lawmakers by Rahim Moloo and Brian King.

The abstract:

Arbitration scholars and practitioners have, for many years, spilled much ink debating the role of arbitrators as lawmakers. The debate has tended to center on two questions involving the role of precedent. First, should arbitrators treat prior arbitral decisions as a form of precedent, and, if so, to what degree should they rely on them? Second, to what extent should arbitrators view themselves as precedent-makers: Is their role limited to deciding strictly the dispute that is before them, or should they take into account the potential impact of their decision on future awards? Coloring the debate on both questions have been concerns about the implications of the answers for the legitimacy of the international arbitration "regime" as a whole.

The debate has assumed more urgency in certain fields of international arbitration, such as investment treaty arbitration, where the recent availability of an abundance of public awards has spurred much interest within the international legal community. As discussed in this article, this development is unsurprising given that the publicity of awards is, in itself, one of the critical prerequisites to the possibility of viewing arbitrators as lawmakers.

While this Article will touch upon some of the issues highlighted above, its focus is different. We begin from the standpoint that regardless of whether, normatively speaking, one believes that arbitrators should perform a lawmaking function, the fact is that they do. Arbitrators regularly cite to prior awards, appear to consider themselves cabined by them to some extent, and demonstrate concern about the impact that the awards they render may have on the development of the law. Parties, for their part, pepper their pleadings with references to past awards where they are available, seeking to convince the panel to follow or distinguish what tribunals have done before. Given the reality on the ground, it seems appropriate to shift the inquiry from the whether to the when and the what. What kind of law do arbitrators make, and when do they do so? Is the process of arbitral lawmaking legitimate, and are all awards created equal as far as precedential value is concerned? These are the questions that this Article seeks to address.

Oil & Gas Investment Arbitrations

The Environment, Energy and Natural Resources Center of the University of Houston Law Center invitation to a conference October 31, 2014:

The oil & gas industry is one of the key feeders of transnational disputes. As a sector, the oil & gas industry is responsible by far for the most significant element by volume and claim value in investment arbitrations. This traditional role of the oil & gas industry as the bellwether of international disputes will only continue to grow in light of growing resource needs. This potential is reflected in the significant increase in oil & gas investments over the last 10 years. This conference addresses the cutting edge issues faced by the industry in the current market and political conditions focusing on the next wave of significant disputes faced by the industry. Discussion of these developments will provide counsel with insight into the current positions of leading players in the field.

International Investment Arbitration

Challenging arbitrators under ICSID and UNCITRAL rules.  Challenges of International Investment Arbitrators: How Does It Work and Does It Work? by Chiara Giorgetti of the Richmond University School of Law. The Abstract:      

In this article, I examine and assess how challenges are decided in international investment arbitration, and suggest ways to improve challenge proceedings. The analysis focuses only on the rules of the Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Rules) and the 1976 and 2010 UNCITRAL Arbitration Rules ("UNCITRAL . Rules (1976)" and "UNCITRAL Rules (2010)") because the great majority of international investment proceedings occur under either of those rules. In the first part, I describe the qualities required for an arbitrator's appointment under ICSID and UNCITRAL Rules. I then assess.and compare the standards for challenges under those rules, first procedurally, and then substantially. In the conclusion, I suggest that the ICSID challenges procedures should be amended to be more in line with the UNCITRAL Rules. Specifically, I argue that a neutral and independent body should decide arbitrator challenges in ICSID proceedings. I also argue that the standard applied in challenges to arbitrators in ICSID proceedings is too onerous, and should be interpreted taking into consideration the International Bar Association Guidelines for Conflict of Interest in International Arbitration (IBA Guidelines).

Supreme Court Decides Investment Arbitration Case

Today, the Supreme Court decided BG v. Argentina, in which an arbitration panel awarded BG $185 million in damages.

The basic issue is who—court or arbitrator—bears primary responsibility for interpreting and applying an investment treaty provision providing for arbitration 18 months after litigation in Argentina’s courts.

The Supreme Court today holds that investment treaties should in some respects be treated like ordinary contracts.  "A treaty is a contract between nations, and its interpretation normally is a matter of determining the parties’ intent. Where, as here, a federal court is asked to interpret that intent pursuant to a motion to vacate or confirm an award made under the Federal Arbitration Act, it should normally apply the presumptions supplied by American law."

The relevant presumptions are those the Supreme Court articulated, primarily in its Howsam decision:

In an ordinary contract, the parties determine whether a particular matter is primarily for arbitrators or for courts to decide.  If the contract is silent on the matter of who is to decide a "threshold" question about arbitration, courts determine the parties’ intent using presumptions. That is, courts presume that the parties intended courts to decide disputes about "arbitrability," e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 84, and arbitrators to decide disputes about the meaning and application of procedural preconditions for the use of arbitration, see id., at 86, including, e.g., claims of "waiver, delay, or a like defense to arbitrability,"  and the satisfaction of, e.g., " ‘time limits, notice, laches, [or] estoppel,’ " Howsam, 537 U. S., at 85. The [treaty] provision at issue is of the procedural variety.

Class Arbitration and Class Waivers in International and Investment Arbitration

University of Missouri Law Professor Stacy Strong does a lot of good writing on international arbitration and has been especially attentive to class actions and other mass adjudication procedures.  Her book, "Class, Mass, and Collective Arbitration in National and International Law", is here.

Her current paper, "Limits of Autonomy in International Investment Arbitration: Are Contractual Waivers of Mass Procedures Enforceable?" is here.  It discusses such mass adjudication procedures in investment arbitration and contractual waivers of such procedures.