Electronically stored information ("ESI") has connected businesses in ways that were not previously possible. ESI has also become a major source of evidence in all forms of commercial disputes. Arbitration generally limits discovery in order to promote its underlying goal as a cost-effective alternative to litigation. Nonetheless, parties often request documents from each other in disputes and the prevalence of ESI makes it inevitable that these documents will continue to impact the nature of international arbitrations.
In McDonnel Group, LLC v. Great Lakes Insurance SE, UK Branch (5th Cir. 2019), the Fifth Circuit recently held that the New York Convention trumps state insurance law. When its insurance claim was denied, McDonnel Group, LLC ("McDonnel") sued the insurers seeking a declaratory judgment that it was entitled to coverage. The insurers moved to dismiss arguing that the policy contained a provision to arbitrate all disputes between the parties. The policy, however, also contained a conformity to statute provision, meaning that if any term of the policy conflicts with a state statute, then "the terms are amended to conform to such statutes." Invoking that provision, McDonnel argued that it had no obligation to arbitrate because the arbitration clause was void as it conflicted with a Louisiana statute forbidding arbitration in insurance contracts.
In our modern, globally interconnected world companies from different nations frequently enter into business agreements with one another. While such joint ventures can create exciting opportunities, they can also run into challenges, or sour altogether. Thus, it is important to consider dispute resolution mechanisms at the outset of a contract or joint venture between international partners. International arbitration is the dispute mechanism best suited to resolving cross-border disputes. As the following five reasons show, international arbitration should be selected as the dispute resolution method between international partners for virtually any international contract:
It was bound to happen eventually. Maybe your company just went global or maybe they've been working internationally for years. But eventually, whether through some mistake in translation in an international contract, some global or local change in circumstances, or just picking a poor foreign partner, a dispute has arisen over some international transaction.
In the United States, the Federal Arbitration Act ("FAA") provides the rules that govern most arbitrations, and is binding on both state and federal courts. See 9 U.S.C. § 1 et seq. But the FAA is "something of an anomaly" in federal legislation as it "bestow[s] no federal jurisdiction." Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008). So motions to compel arbitration or enforcement proceedings must be brought in state courts unless there is some independent basis to assert jurisdiction (such as federal diversity jurisdiction).
The Court of Appeals for the Eleventh Circuit will be the next body to weigh in on a dispute between Del Monte International GmbH ("Del Monte") and Inversions y Procesadora Tropical INPROTSA, S.A. ("INPROTSA") over an exclusive sales agreement for pineapples. The case has been appealed to the Eleventh Circuit, and the appeal raises issues of the finality of international arbitration awards.
Cost can be a deterrent when parties are considering whether to mediate a complex business dispute. Mediation is an excellent opportunity to settle a case in advance of costly trial preparation, but mediation requires parties to pay for both a mediator and their attorneys' time to prepare for and attend the mediation. Are those costs recoverable if mediation is unsuccessful and findings at trial require the losing party to pay the winning party's attorneys' fees and costs? According to recent federal case law in the District of Massachusetts, the answer to that question depends on the basis of the fee-shifting award.
Testimony by videoconference international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.
There are fundamental differences between international arbitration and litigation in the U.S. courts that can impact the cost of resolving your dispute, the time to resolution, and each party's respective level of comfort with the process. Below, I set out a few important distinctions between the two processes.
A central feature of international arbitration is the presence of counsel, parties, and even arbitrators who hail from several different countries. Frequently, more than one nationality is represented at the arbitral hearing, and with that diversity come a host of issues that are not immediately apparent -- chief among them is the variety of different languages being spoken. Since a hearing will only be conducted in one language, it is often the case that many people in the room will need the services of both translators and interpreters in order to be present and fully understand the proceedings.
In the negotiation of complex cross-border commercial contracts, the parties too often pay scant attention to the terms of dispute resolution clauses. The clear advantages of choosing international arbitration over court forums can be overlooked.
The private nature of arbitration means that there is typically less information available-- to lawyers, their clients, and the public -- about the practices and preferences of arbitrators. A recently published study on arbitration, described by authors Thomas J. Stipanowich and Zachary P. Ulrich as "a wide-ranging, thoroughgoing empirical survey of practices and perspectives among experienced commercial arbitrators" sheds light on current trends in domestic and international arbitration.
As with any cross-border endeavor, language barriers can become a hurdle to overcome international arbitration and litigation. The dispute resolution clause in a contract may compel the client to arbitrate or litigate in a country other than their own. Arbitrators, parties, and even counsel may all hail from countries that speak different languages. Thus, a successful practitioner must give due consideration to the opportunities and challenges presented by the diversity of languages that may present itself in any given case.
BG Group plc won a major victory at the U.S. Supreme Court last month when the Court upheld an arbitration award requiring Argentina to pay BG Group more than $185 million. The case is yet another example of the deference that arbitration awards receive in U.S. courts.
Parties to a dispute often cite cost control as a reason for choosing arbitration over litigation. To achieve the goal of keeping arbitration costs down, it is important for counsel to play an active role in advocating for cost control. Without counsel's vigilant attention from the outset of the case, arbitration costs can rival litigation expenses. This is especially true international arbitrations where parties, counsel, and arbitrators hail from different parts of the world.
The International Bar Association ("IBA") recently released the "IBA Guidelines on Party Representation international Arbitration" ("Guidelines"). According to the preamble, the Guidelines are an attempt at normalizing the conduct of counsel relating to party representation in the face of the "diverse and potentially conflicting rules and norms" commonly found international arbitration. By adopting the Guidelines, parties subscribe to "the principle that party representatives should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense, including tactics aimed at obstructing the arbitration proceedings."
Before running off to Court to file an emergency request for a temporary restraining order or a preliminary injunction, counsel should consider whether the same relief can and should be sought from an arbitral institution. Start with review of the agreement at issue and its dispute resolution clause; you may find that it provides a preferable alternative to Court. Effective procedures for emergency interim relief are provided by the rules of leading arbitral institutions of the world, including the International Chamber of Commerce (ICC), The London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution of the American Arbitration Association (ICDR) and others.
Seven years ago this week, one of the most significant chapters in Bolivian history began. With one stroke of the pen on May 1, 2006, then-newly-elected president Evo Morales issued a decree nationalizing all of Bolivia's oil and gas reserves. This was shortly followed by efforts to nationalize many other natural resources in the country, including precious minerals and other elements. The nationalization of many industries has had significant legal consequences, most of which are still felt today.
As more and more nations strive to cut themselves a piece of the international arbitration pie, Southeast Asia is a perfect example of a region where countries are looking to broaden their presence in the field of international arbitration. Recently, the Singapore International Arbitration Centre ("SIAC") saw an increase to an all-time-high figure of $2.9bn (£1.9bn) in revenue from new international arbitration cases. The number of new cases for the SIAC jumped from 188 in 2011 to 235 in 2013, for an increase of 25 percent.
One of the questions that is most often asked by clients is whether or not an award issued international arbitration - which is a private vehicle for dispute resolution - is enforceable and whether collection can be guaranteed to the fullest extent of the law. In other words, whether an arbitral award can be enforced in the same way that a judgment from a court is enforced.