International Commercial Arbitration Posts

Supreme Court To Revisit Circuit Split over Discovery in Aid of International Arbitration

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The United States Supreme Court granted certiorari in two cases—ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401, and AlixPartners, LLP v. Fund for Prot. of Investors’ Rights in Foreign States, No. 21-518—to determine whether the discretion granted to district courts under 28 U.S.C. § 1782 (“Section 1782”) to render assistance in gathering evidence for use in a “foreign or international tribunal” includes seeking evidence in aid of private commercial arbitrations or treaty-based arbitrations.

The Institute in the Courts: U.K. Supreme Court Cites Restatement of the U.S. Law of International Commercial and Investor–State Arbitration

Disputes arising under international commercial contracts that contain arbitration agreements implicate different systems of law, including the law governing the substance of the dispute, the law governing the agreement to arbitrate, and the law governing the arbitration process, or the “curial law.” In Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb the Supreme Court of the United Kingdom addressed an issue that “has long divided courts and commentators,” both in the United Kingdom and internationally.

Arbitration and Rule Production

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.

UK Supreme Court Looks to Restatement of U.S. Law of International Commercial and Investor-State Arbitration

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.