The American Review of International Arbitration, a law review by the Parker School of Foreign and Comparative Law at Columbia University published recently a hardback issue with papers presented at the University of Texas symposium back in May of 2010, on the theme, “Arbitration and National Courts: Conflict and Cooperation.” (previews of the conference papers are here). The issue includes papers by luminaries such has Michael Reisman of Yale, Pierre Mayer of the University of Paris, Dominique Hascher, Andrea Bjorklund, Laurie Craig, Lord Leonard H. Hoffmann of Chadwick, Retired Law Lord, Brick Court Chambers, U.K, and Mariano Gomezperalta Casali, General Counsel for Trade Negotiations, Ministry of the Economy, Mexico. You may find the articles at Symposium: Arbitration and National Courts: Conflict and Cooperation, 21 The American Review of International Arbitration 47 (2010); ISSN 1050-4109 in Westlaw, Lexis Nexus, or you may order the issue here. Included in the compilation is Professor Alan Scott Rau’s latest article, Understanding (and Misunderstanding) Primary Jurisdiction. Here is the abstract: In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion – the fulcrum around which the entire arbitral enterprise pivots – has been the supposed dichotomy between the state of the “seat” – where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” – and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion – for example, by appointing the arbitrators – and above all in monitoring compliance with the agreement – for example, by annulling or vacating the resulting award. That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration – and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law. I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood. The inevitable problem, though, is that none of this is a universal solvent – the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts. Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated – perhaps on the fundamental ground that he has never even given his assent – American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” – and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.” American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit – or for that matter to the proposition that international neutrals cannot possibly be corrupt – need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges. You may download the full article (for free) here. Links to other scholarly papers by Professor Rau are here. Technorati Tags: ADR, law, arbitration

The International Chamber of Commerce (ICC) Rules of Arbitration have been newly revised to take into account current requirements and developments in arbitration practice and procedure since the last revision in 1998. The new Rules are the product of two years of work within the ICC Commission on Arbitration, a think tank of 620 dispute resolution specialists from 90 countries. The ICC will unveil the new Rules and explain the changes at a conference in Paris, on September 12-13, 2011. Topics to be addressed include: General Provisions The first part of this session will focus on the opening provisions of the new Rules concerning the institution, the application of the Rules and the initiation of arbitration proceedings. The new provisions clarify the respective roles of the ICC International Court of Arbitration, its Secretariat and the arbitral tribunals, and confirm the broad scope of ICC arbitration, which is available for disputes arising from investment treaties as well as all kinds of commercial contracts. The new Rules recognize the specificity of the former and arbitrations involving States and State entities. The session will also address filing requirements and confidentiality, including a new provision explicitly allowing for confidentiality orders. The Arbitral Tribunal The constitution of the arbitral tribunal is a core element in any set of arbitration rules, reflecting the adage that an arbitration is only as good as the arbitrator. This session will deal with the changes made in the new Rules to the appointment of arbitrators by the ICC International Court of Arbitration and to the obligations incumbent upon arbitrators, which now explicitly encompass impartiality as well as independence. Improving Time & Cost Efficiency One of the principal aims of the revised ICC Rules – and one of the chief requests from corporate users – was to provide for effective means of controlling time and costs in arbitration. This session will present the revised provisions in this field. They are designed to allow the Secretariat of the ICC Court to constitute arbitral tribunals and turn around draft awards with greater rapidity, and to enable and encourage parties and arbitrators to conduct proceedings in an expeditious and cost-effective manner. Emergency Arbitrator Provisions A new feature in the revised Rules is the provision allowing parties to apply for the appointment of an emergency arbitrator to decide on urgent conservatory or interim measures that cannot await the constitution of the arbitral tribunal. This session will present that provision and an entirely new appendix to the Rules, which sets out the rules governing emergency arbitrator proceedings. Multi-party, multi-contract arbitration and consolidation In the past decade, the transactions underlying the disputes referred to ICC arbitration have become increasingly complex, involving multiple parties and contracts. The new revision has introduced into the Rules for the first time a section devoted specifically to arbitrations involving multiple parties, multiple contracts and consolidation. This session will look at these new provisions and related provisions on the fixing of advances on costs, and consider how they will operate in practice. Information about the conference is here. You may download the conference brochure here. Technorati Tags: law, ADR, arbitration

By Brett Goodman The Court of Appeals of Texas in Dallas has denied an appeal seeking to overturn a trial court’s decision not to compel arbitration. In Adams v. StaxxRing, Inc., No. 05-10-01142 (Tex. App.–Dallas July 7, 2011, no. pet. ) William B. Adams was appealing the decision in favor of Molly Langford and StaxxRing, Inc., a jewelry business equally owned by Adams and Langford. The first strike in any sort of litigation came when Langford sued Adams, claiming that Adams had usurped power from Langford in this equal partnership setting. Through the rest of 2009 and 2010, the litigation went back and forth between the two parties, starting with an answer and assertion of affirmative defenses, to discovery and motions. In mid-2010, the court heard Adams’ motion to compel arbitration and denied it on the bases that (1) there was no agreement to arbitrate the dispute before the court, (2) Adams waived any right he may have had to arbitrate the claims in this case by substantially invoking the judicial process ‘to the clear detriment and prejudice of the plaintiffs,’ and (3) the arbitration demanded by Adams would not provide StaxxRing and Langford with “an accessible and equivalent forum for them to redress their grievances.” In this appeal, Adams asserted that the right to arbitration had not been waived on the two prongs that Adams had not “substantially invoked the judicial process and Langford and StaxxRing [had] not proven they [had] suffered prejudice.” To determine a substantial invoking of the judicial process had been undertaken, the court would have to consider a number of factors in concert. First, Adams did not deny that he had knowledge of the arbitration clause in StaxxRing’s bylaws. Adams had initiated discovery, and it seemed discovery had been completed because Adams moved to compel arbitration only after the discovery deadline had come and gone. Adams also sought temporary injunction relief and a temporary restraining order on the merits, brought third parties into litigation, filed a rule 12 motion, and initiated other independent proceedings. Taking all of these factors into consideration, the court determined the judicial process had substantially been invoked in the case. Concerning prejudice, the court stated, “prejudice refers to the inherent unfairness in terms of delay, expense, or damage to a party’s legal position that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate the same issue.” Republic Ins. Co. v. PAICO Receivables, LLC, 383 F.3d 341, 346 (5th Cir.2004). Unfairness did occur, the court ruled, in the trouble Langford and Staxxring were forced to undertake in the production of documents. This led to increased expense, unnecessary effort on their part, and a negative effect on their legal position in litigation. The court concluded that the invocation of the judicial process combined with the evidence of prejudice demonstrated that Adams had waived the right to compel arbitration. Thus, the trial court’s decision to deny a compelling of arbitration was affirmed in the Court of Appeals. Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.  

The Texas Supreme Court issued recently some amendments to its Ethical Guidelines for Mediators. These amendments were adopted in response to recommendations from the Alternative Dispute Resolution Section of the State Bar of Texas and went into effect on June 1, 2011. Find a copy of the amendments here.