International Commercial Arbitration Posts
Arbitration has been criticized as displacing cases from the public courts and thereby reducing the production of court precedent. Moreover, while arbitral awards might substitute for court precedent, the standard view is that arbitrators have little incentive to issue awards that produce legal rules because such awards mostly benefit parties to future disputes. This Article critically examines both the hypotheses, filling in gaps in existing legal literature and also offering new theoretical and empirical insights for a comprehensive account of arbitration and rule production.
The fraught question of the rights and liabilities of “non-signatories” in arbitration continues to exercise courts and commentators. The Supreme Court, as part of its endless fascination with the arbitral process, recently made its own contribution in the Outokumpu case.
UK Supreme Court Looks to Restatement of U.S. Law of International Commercial and Investor-State ArbitrationPauline Toboulidis
The Court found that when choice of law is not identified in an arbitration agreement, the law of the seat of arbitration is the law “most closely connected” to agreement, and references Restatement of the Law, The U.S. Law of International Commercial and Investor-State Arbitration in support of its decision.
On Friday, February 19, ALI CLE is offering a new ethics course featuring Reporters from Restatement of the Law, The U.S. Law of International Commercial and Investor-State Arbitration. Coupon code is available for our readers.
In recent years, governments from the state of Delaware to the Emirate of Dubai have created institutions specially designed to adjudicate transnational commercial disputes. These institutions are hybrids between courts and arbitration, or “arbitral courts.”
In his International Arbitration column, John Fellas discusses the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration—a 12-year effort primarily concerned with the role of the U.S. courts with respect to arbitration proceedings. The author describes it as a “majestic, comprehensive, and clear account of the U.S. law of international and investor-state arbitration that belongs on the shelf of everyone involved those fields.”
Argument Analysis: Justices Debate Ability of Business That Did Not Sign Arbitration Agreement to Compel ArbitrationRonald J. Mann
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA is the Supreme Court’s first arbitration case of the 2019 term. For observers familiar with the arbitration docket in recent years, this case will seem unusual, because so few of the justices seem predisposed to compel arbitration.
In a Divergence From Other US Federal Circuits, The US Sixth Circuit Court of Appeals Rules That 28 U.S.C. § 1782 May Permit US Discovery for Use in Non-US Private ArbitrationsCharles E. Harris, II and Kwadwo Sarkodie
In contrast to its sister Circuits, a unanimous three-judge panel of the Sixth Circuit held that the word “tribunal” in the relevant clause of Section 1782 includes private arbitrations. This decision could make it easier for parties engaged in non-US arbitrations to obtain discovery from US entities, particularly those that fall within the Sixth Circuit’s jurisdictional reach.
At this year’s Annual Meeting on May 20, members of The American Law Institute voted to approve the Proposed Final Draft of Restatement of the Law, The U.S. Law of International Commercial and Investor–State Arbitration. Yesterday’s vote marks the completion of this project.
This brief introduction depicts the development of international arbitration in the United States, as general background to the present Restatement of the U.S. Law of International Commercial and Investor–State Arbitration. It highlights what may be regarded as “milestones” in the development of international arbitration law in the United States.