Introduction

Following Russia’s invasion of Ukraine in 2022 and the subsequent EU sanctions[1], the English Court of Appeal recently addressed a crucial issue in a decision from October 2023[2]: can an English court rightfully grant an anti-suit injunction (ASI) supporting a foreign seated arbitration to prevent proceedings initiated in Russia in breach of an arbitration agreement, especially if equivalent relief is not available in Paris, the arbitration’s seat? The court’s decision to grant an ASI elucidates the relationship between English law, arbitration practices, and the constraints imposed by a foreign arbitral seat.

This decision, as well as later English court decisions, such as UniCredit Bank GmbH v. RusChem[3], are particularly significant in the context of Article 248.1 of the Russian Arbitrazh Procedure Code, which permits Russian courts to disregard foreign arbitration agreements and exercise exclusive jurisdiction over disputes involving sanctions against Russia.[4] While English courts have historically issued ASIs to support arbitrations seated in England, their jurisdiction to grant such relief for arbitrations seated abroad, such as in Paris, remained unclear. The Court of Appeal’s decision offers essential clarity about the extent of English courts’ authority to uphold arbitration agreements under English law and the court’s position on the governing law of the arbitration agreement.

Factual Background

In 2021, RusChemAlliance LLC (RusChem), a Russian-based company, entered into a contract with Linde Engineering (Linde), a German construction company, for the engineering, procurement, and construction of an LNG plant in Russia. The contract required RusChem to make advance payments to Linde, secured by guarantees. One such guarantee, issued by Deutsche Bank AG (Deutsche Bank) for up to €230 million, was provided in favor of RusChem. The guarantee was governed by English law and included a dispute resolution clause requiring arbitration under ICC Rules, with Paris as the designated seat of arbitration. However, the arbitration agreement did not explicitly state which law it is governed by.[5]

After the European Union imposed sanctions on Russia in response to its invasion of Ukraine, Linde suspended its work under the contract. In response, RusChem terminated the contract and sought to reclaim its advance payment; however, Linde refused, citing the sanctions against Russia. Subsequently, RusChem demanded payment of the full amount under the guarantee from Deutsche Bank. Nevertheless, Deutsche Bank also refused payment, relying on the EU sanctions as justification.[6]

RusChem subsequently began litigation in Russia against Deutsche Bank, violating the arbitration agreement outlined in the guarantee, arguing that it was not enforceable. Soon after, Deutsche Bank initiated ICC arbitration in Paris, as required by the arbitration agreement. Meanwhile, while the arbitral tribunal had not yet been formed, Deutsche Bank sought an interim ASI and an anti-enforcement injunction (AEI) from the English Commercial Court to prevent RusChem from continuing its case in the Russian court proceedings.[7]

Summary of the Decision

Relying on the principles established by the English Supreme Court’s judgment in Enka v. Chubb[8], Justice Bright concluded that an arbitration agreement within a contract governed by English law is also subject to English law, even if the seat of the arbitration is located in another jurisdiction.[9]

Under English procedural law, foreign law is treated as a matter of evidence.[10] In support of its application, Deutsche Bank presented expert evidence on French law from Professor Claude Brenner.[11] Professor Brenner concluded that ASI, referencing inter alia the European Court of Justice’s decision in West Tankers[12], are not included in the procedural toolkit of France. Furthermore, he asserted that French law fundamentally opposed the issuance of such injunctions, deeming them incompatible with the principles of freedom of legal action and judicial autonomy. Relying on this evidence, Justice Bright observed that granting an ASI would create a direct conflict between English orders and French legal principles, particularly since Paris was the designated arbitral seat.[13]

Justice Bright also noted that a French court would neither recognize nor enforce an ASI issued by an English court and might even issue an anti-ASI in retaliation. He emphasized that French law deliberately excluded ASIs, reflecting a philosophical objection rather than a procedural gap. Given these factors, Justice Bright concluded that England was not the appropriate forum for Deutsche Bank’s claim. Accordingly, he dismissed the applications for both an ASI and an AEI, reasoning that the parties had chosen Paris as the seat and had to have contemplated the limitations of French procedural law. [14]

The English Court of Appeal overturned Bright J’s decision, relying on additional expert evidence submitted by Deutsche Bank during the appeal. This included further input from Professor Claude Brenner and new evidence from Professor d’Avout,[15] which clarified the treatment of ASIs under French law.[16] The new legal evidence demonstrated that while French courts lack procedural tools to issue ASIs domestically, they would recognize an ASI issued by a foreign court if it was (i) not contrary to international public policy (ii), issued by a foreign court with sufficient jurisdictional link, and that was (iii) issued without fraud by the claimant.[17] The Court of Appeal noted that the Commercial Court was hampered by having limited and unclear evidence of French law. However, upon reviewing the new evidence, the Court determined that while French courts do not have the jurisdiction to issue anti-suit injunctions, they were prepared to recognize and enforce such injunctions granted by other courts, provided the above criteria are met.[18]

The Court of Appeal then considered whether England was the proper forum for Deutsche Bank’s claim. Applying the test from two precedents of the English Supreme Court[19], the Court assessed three requirements: (i) whether there was a serious issue to be tried on the merits, (ii) whether there was a good arguable case that the claim fell within a relevant jurisdictional gateway, and (iii) whether England was the proper place for the claim. The Court found that Deutsche Bank had met the first requirement and satisfied the second through the “contract gateway,” as the claim involved a contract governed by English law (the arbitration agreement).[20]

Regarding the third requirement, the Court of Appeal emphasized that the court’s role is to “identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice.”[21] In this instance, the “ends of justice”[22] reflected the policy of English law that parties to contracts should comply with their contractual obligations. The Court observed that English courts would be the appropriate forum, particularly because an English court, faced with an English law contract containing an arbitration agreement also governed by English law, would readily enforce that agreement through an anti-suit injunction. It further highlighted that such an important remedy “can only in practice be obtained in England and not in France.”[23] Consequently, the Court of Appeal concluded that England was the proper forum and granted Deutsche Bank the requested ASI and AEI.[24]

Diverging Approaches to Anti-Suit Injunctions

Similar decisions were adopted in two other recent materially identical cases, Commerzbank AG v. RusChem[25] and UniCredit.[26] In UniCredit, the English Supreme Court upheld the issuance of an ASI in favor of arbitration seated in Paris. Like in Deutsche Bank, the Supreme Court concluded that the English court was the appropriate forum to issue the ASI. Additionally, the Court clarified that when an arbitration agreement does not specify its governing law, the main contract’s law will govern the arbitration agreement, even if the seat is in a different jurisdiction. There is currently no international consensus regarding this approach. Other jurisdictions, such as France, treat the law of the seat as the governing law of the arbitration agreement.[27]

The divergent approaches of English and French courts on ASIs highlight the interaction between legal cultures and arbitration philosophies. Based on the common law tradition, English courts regard ASIs as essential for preventing violations of arbitration agreements. On the contrary, as a civil law jurisdiction, France generally does not include ASIs in its procedural toolkit, leading French courts to dismiss them as inconsistent with their legal framework.[28]

Deutsche Bank and UniCredit indicate that when English law governs an arbitration agreement, English courts will uphold the parties’ contractual choice to arbitrate and grant ASIs when necessary to support the arbitration process. While this may not deter all parties from pursuing claims in breach of such agreements, the English court’s ability to issue anti-suit injunctions ensures that foreign judgments cannot be enforced against assets in England and may also hinder enforcement efforts in other jurisdictions.[29]

Limits to the Decision’s Significance

The impact of the decisions Deutsche Bank and UniCredit may be temporarily limited due to the ongoing reformation of the English Arbitration Act 1996.[30] The proposed Arbitration Bill, currently under consideration in the UK Parliament, introduces Section 6A, which addresses the law governing arbitration agreements. The provision, in its current draft, reads as follows:[31] Law applicable to arbitration agreement: (1) The law applicable to an arbitration agreement is— (a) the law that the parties expressly agree applies to the arbitration agreement, or (b) where no such agreement is made, the law of the seat of the arbitration in question. (2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not constitute express agreement that that law also applies to the arbitration agreement. […]

This reform significantly shifts the position established by Enka, UniCredit, and Deutsche Bank, proposing that, in the absence of an explicit choice of law governing the arbitration agreement, the default governing law will be the law of the arbitration’s seat. The intent of this change is to provide greater legal certainty by simplifying the determination of the governing law for arbitration agreements.[32] During the drafting process, the Law Commission made a key adjustment between the Second Consultation and the Final Report by removing the requirement that an express choice of law must appear “in the arbitration agreement itself.” This revision allows parties to rely on express choices located in other parts of the contract or related agreements, even if they do not specifically reference the arbitration agreement. However, this change has sparked debate among scholars, who are concerned that subsection 1(a) may lead to litigation over what constitutes a “sufficiently express” choice of law.[33]

The Arbitration Bill is currently making its way through the UK Parliament. It has completed its stages in the House of Lords and is now under consideration in the House of Commons. Once both Houses agree on the final text, it will receive Royal Assent and become law. The exact date for implementation will be established at that time.[34]

Conclusion

The judgment in Deutsche Bank, especially when viewed alongside the English Supreme Court’s decision in UniCredit, demonstrates the English courts’ commitment to upholding arbitration agreements governed by English law, even when the seat is abroad. These decisions affirm the availability of ASIs as a tool to protect arbitration agreements and party autonomy. However, the proposed Arbitration Bill 2024 may limit this scope by defaulting to the law of the seat if no explicit governing law is specified. To avoid jurisdictional uncertainties and ensure enforceability, parties should explicitly state the governing law of the arbitration agreement. Contract drafters are advised to include a clear choice of law clause for the arbitration agreement, separate from the substantive law governing the main contract.

Furthermore, both decisions underscore the importance of forum selection and the challenges posed by conflicting legal systems in international arbitration. In a fragmented geopolitical environment shaped by sanctions and national interests, these cases highlight the need to anticipate jurisdictional challenges and carefully draft dispute resolution clauses. By considering the interaction between substantive and procedural law, and understanding the legal approaches of key jurisdictions, parties can better protect their arbitration rights.

***

Ann-Kathrin Reschny is an LL.M. candidate at NYU School of Law, specializing in the International Business Regulation, Litigation & Arbitration program. She earned her law degree from the University of Vienna. Before joining NYU, she worked as an associate in the dispute resolution department of a leading Austrian law firm, where she also published in the field of arbitration

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[1] The European Union has imposed a series of sanctions on Russia, including Regulation (EU) 2022/328, which introduced import and export restrictions, prohibitions on transactions with the Central Bank of Russia, asset freezes, and a ban on financial assistance. Subsequent measures have further expanded these restrictions, with the most recent successor regulations being Regulations (EU) 2024/745, (EU) 2024/1745, and (EU) 2024/3192.

[2] EWCA Civ 11.10.2023, [2023] EWCA Civ 1144, Deutsche Bank AG v. RusChemAlliance LLC.

[3] UKSC 18.09.2024, [2024] UKSC 30, UniCredit Bank GmbH v. RusChemAlliance LLC.

[4] Referred to in UniCredit Bank GmbH v. RusChemAlliance LLC, para. 6; Art. 248.1, Russian Arbitrazh Procedure Code, enacted by Federal Law No. 95-FZ, 24 July 2002 (as amended).

[5] Deutsche Bank v. RusChem, para. 4-6.

[6] Deutsche Bank v. RusChem, para. 7-8.

[7] Deutsche Bank v. RusChem, para. 8-10.

[8] UKSC 15.10.2020, [2020] UKSC 38, Enka Insaat ve Sanayi AS v. OOO “Insurance Company Chubb, para. 170(iv).

[9] Deutsche Bank v. RusChem, para. 11.

[10] Art. 33.7, Civil Procedure Rules of England and Wales, enacted by the Civil Procedure Act 1997 (as amended).

[11] Professor at the University of Paris Panthéon-Assas.

[12] ECJ 10.02.2009, Case C-185/07, Allianz SpA v. West Tankers Inc.

[13] Deutsche Bank v. RusChem, para. 10-26.

[14] Deutsche Bank v. RusChem, para. 10-26.

[15] Professor at the University of Paris Panthéon-Assas.

[16] Deutsche Bank v. RusChem, para. 28- 44.

[17] Deutsche Bank v. RusChem, para. 30.

[18] Deutsche Bank v. RusChem, para. 30.

[19] UKSC 10.04.2019, [2019] UKSC 20, Lungowe v. Vedanta Resources plc.; UKHL 19.11.1986, [1986] UKHL 10, Spiliada Maritime Corpn v. Cansulex Ltd.

[20] Deutsche Bank v. RusChem, para. 34-35.

[21] Deutsche Bank v. RusChem, para. 37.

[22] Deutsche Bank v. RusChem, para. 38.

[23] Deutsche Bank v. RusChem, para. 40.

[24] Deutsche Bank v. RusChem, para. 36-41.

[25] EWHC 13.05.2024, [2024] EWHC 1474 (Comm), Commerzbank AG v. RusChemAlliance LLC.

[26] Due to the page limit, this paper will only discuss and compare the similarities with the recent English Supreme Court decision UniCredit Bank GmbH v. RussChem.

[27] Cour de Cassation, 1re Civ., 28 Septembre 2022, n° 20-20.260, Kabab-Ji SAL v. Kout Food Group; Jalal El Ahdab; What law governs an arbitration agreement and why it matters? Lessons from Kout Food Group v Kabab-Ji SAL, available at https://www.twobirds.com/en/disputes-plus/shared/insights/2022/global/what-law-governs-an-arbitration-agreement-and-why-it-matters-lessons-from-kout-food-group (last accessed: 12/5/2024).

[28] Vincent Carriou, Claire Debourg, et al., Les injonctions anti-suit anglaises, soutien inattendu des procédures arbitrales en France, Rev. Arb. 2024, p. 285, pp. 285–290.

[29] David Bridge, UK Supreme Court Upholds Anti-Suit Injunction in Favour of Paris-Seated Arbitration, November 2024, available at: https://cms-lawnow.com/en/ealerts/2024/11/uk-supreme-court-upholds-anti-suit-injunction-in-favour-of-paris-seated-arbitration (last accessed: 11/29/2024).

[30] David Bridge, UK Supreme Court Upholds Anti-Suit Injunction in Favour of Paris-Seated Arbitration. 

[31]Arbitration Bill [HL], UK Parliament, Bill 140, Session 2023–24, available at https://bills.parliament.uk/publications/54937/documents/4641 (last accessed: 12/5/2024).

[32] John Fellas, One Thing You Need To Know About the Proposed Revisions to the English Arbitration Act, December 2023, available at: https://www.law.com/newyorklawjournal/2023/12/19/one-thing-you-need-to-know-about-the-proposed-revisions-to-the-english-arbitration-act/?slreturn=20241206183644 (last accessed 11/29/2024).

[33] Manuel Penades, The Law Governing Arbitration Agreements in England after UniCredit, November 2024, available at: https://eapil.org/2024/11/13/the-law-governing-arbitration-agreements-in-england-after-unicredit/ (last accessed 12/2/2024); Written evidence from Dr Manuel Penades – Response to the Call for evidence by the Special Public Bill Committee on the Bill to Amend the Arbitration Act 1996, available at https://committees.parliament.uk/writtenevidence/128263/pdf/(last accessed 12/4/2024).

[34] UK Parliament, Arbitration Bill Completes Lords Stages, 7 November 2024, available at: https://www.parliament.uk/business/news/2024/october/arbitration-bill-to-complete-stages-in-lords/ (last accessed 12/4/2024).

1. Introduction

While shareholder disputes are generally arbitrable under Austrian law, this is currently severely limited by Section 617 of the Austrian Code of Civil Procedure (“ACCP”).[1] The existing provision, Sec 617 ACCP[2] stipulates a very high threshold as to the validity of arbitration clauses concerning consumers. These restrictions—without exception—also apply to shareholders if they are considered consumers under Austrian law (“Consumer-Shareholders”).[3] The broad definition of “consumer” has, in practice, rendered arbitration with a seat in Austria in the area of corporate law nearly impossible. As one scholar has succinctly put it, arbitration involving shareholder disputes is “practically dead” when a Shareholder-Consumer is involved.[4]

To address this issue, a recent law proposal, identified as 3826/A[5] (“Draft Legislation”), has been under discussion in Austrian arbitration law. This paper aims to analyze how the Draft Legislation seeks to resolve the challenges posed by the current legal framework.

The Draft Legislation also includes an amendment concerning the special power of attorney required for the conclusion of arbitration clauses. This issue—while significant for the validity of arbitration clauses under Austrian law—is not the primary focus of this paper.

2. Current Framework of Sec 617 ACCP

The ACCP imposes significant restrictions on the validity of arbitration agreements involving consumers. Pursuant to Sec 617 of the ACCP, which is mandatory,[6] additional conditions must be met for an arbitration agreement to be valid when a consumer is involved. These conditions include: (i) the arbitration agreement must be concluded after the dispute has arisen (para 1); (ii) arbitration agreements cannot be embedded within other documents and must instead be executed as standalone contracts (para 2); and (iii) written information must be provided to the consumers outlining the key differences between proceedings in state courts and arbitral tribunals prior to consenting to arbitration (para 3). 

It is important to point out that Sec 617 ACCP applies to all arbitration proceedings seated in Austria and, therefore, also applies if only foreign parties are involved.[7] The restrictive nature of Sec 617 ACCP is quite unique as the provision has no parallel provision in the UNCITRAL-Model Law,[8] and as far as can be determined, stands out for its particularly extensive restrictions in comparison to other European jurisdictions.[9] The Austrian legislator justified the imposition of these strict requirements by emphasizing that, unlike Austrian arbitration law, the UNCITRAL-Model Law is designed exclusively for commercial disputes. As a result, the legislator deemed it necessary to ensure that mandatory rights, such as those of consumers, are not undermined through arbitral proceedings.[10]

3. Obstacles to Arbitration Concerning Corporate Disputes under Sec 617 ACCP

In general, the strict requirements regarding the validity of arbitration agreements with consumers are not subject to critique in this analysis. However, the current wording of Sec 617 ACCP remains highly problematic, as discussed below.

The Austrian Supreme Court has held that the restrictions set out in Sec 617 ACCP fully apply to shareholders if they are deemed consumers pursuant to the Austrian Consumer Protection Act (“ACA”).[11] According to the Austrian Supreme Court, the determination of whether a shareholder qualifies as a consumer is based on an economically-oriented perspective, with the most significant factor being the extent of the shareholder’s influence on the company’s management.[12] While some case law provides guidance on this assessment,[13] a high degree of legal uncertainty persists, as the evaluation largely depends on the specific circumstances of each case.[14] These circumstances—typical in corporate law—are subject to change, for instance, due to alterations in the composition of the corporate structure, shifts in shareholdings, or fluctuations in the value of shares.

In addition to the ambiguity about whether a shareholder meets the criteria of a Consumer-Shareholder, it is clear that the strict requirements outlined in Sec 617 ACCP are so cumbersome that arbitral proceedings involving Consumer-Shareholders based in Austria are, in reality, almost impossible, rendering such proceedings uncommon, if not entirely non-existent.[15] The current provision of Sec 617 ACCP leads, e.g., to(i) uncertainty regarding the validity of arbitration agreements, (ii) potential jurisdictional conflicts between state courts and arbitral tribunals, and (iii) ultimately limiting Consumer-Shareholder access to arbitration.

Among all the restrictions set forth in Sec 617 ACCP, the most adverse for arbitration of shareholder disputes is para 1 leg cit, which stipulates that arbitration agreements involving Consumer-Shareholders can only be validly concluded after a dispute has arisen.[16] This provision renders agreements to arbitrate future disputes—which are a cornerstone of typical arbitration clauses in shareholder agreements— invalid. The practical challenge of this restriction is evident: in the event of a dispute, it is highly unlikely that all shareholders—often numerous—would be able to reach a consensus on any issue, let alone agree to arbitration instead of litigation.[17] This inherent impracticality emphasizes the significant constraints set by existing regulations, resulting in arbitration with Consumer-Shareholders rarely occurring in practice.[18]

Further, as noted above, para 2 leg cit stipulates that the arbitration agreement must be contained in a separate contract, encompassing only the arbitration agreement itself.[19] This requirement is not only impractical but also highly problematic due to its unilateral effect. An arbitration clause must have omnilateral effect, meaning it should be valid for all shareholders and, therefore, should logically be included in the articles of association rather than in a standalone agreement.[20]

Consequently, when a Consumer-Shareholder is involved in a shareholder dispute, the arbitration agreement is often found to be invalid because the restrictions imposed by paras 1 and 2 leg cit are not met. This creates a risk of split jurisdiction between state courts and arbitral tribunals because the Consumer-Shareholder, not being bound by the arbitration agreement, can only seek remedies in state courts. At the same time, the other shareholders remain bound by the arbitration agreement and, pursuant to Section 584 ACCP, are precluded from initiating proceedings in state courts.[21] This results in a deadlock situation of split jurisdiction. Such a scenario is particularly problematic in challenges to shareholder resolutions, as these challenges are intended to have effect on all shareholders.[22]

Moreover, the restrictions imposed by Sec 617 ACCP negatively impact Austria’s attractiveness as a seat of arbitration.[23] Legal advisors and contract drafters often recommend against choosing Austria as the place of arbitration, primarily due to the overarching and restrictive effect of Sec 617 ACCP. [24] This result clearly contrasts with the purpose of the 2013 amendment to Austria’s arbitration law, which sought to strengthen Austria’s standing as a competitive arbitration hub.[25]

4. Comparative Analysis of Corporate Disputes Involving Consumers in Neighboring Jurisdictions

A comparison with neighboring countries highlights the need to exclude Consumer-Shareholders from the strict restrictions of Sec 617 ACCP. Liechtenstein has already sought to capitalize on Austria’s stringent regime of Sec 617 ACCP. Liechtenstein, which had initially modeled its arbitration law on the Austrian one, recognized the detrimental effects of a provision analogous to Section 617 ACCP—Sec 634 of the Liechtenstein Code of Civil Procedure (“LCCP”).[26] In response, Liechtenstein amended its law to exclude corporate disputes from Sec 634 LCCP. Liechtenstein justified this amendment, amongst others, with the expectation that parties would increasingly select Liechtenstein over Austria as the seat of arbitration to avoid the limitations imposed by Austrian arbitration law on company-related disputes.[27]

Similarly, Germany’s Sec 1031 para 5 of the German Code of Civil Procedure, allows exceptions for notarized arbitration clauses in company agreements,[28] while Switzerland imposes no special restrictions on arbitration agreements involving consumers, proving consumer protection can be ensured without overly stringent limitations.[29] 

5. Draft Legislation: Proposed Exception Clause

To address these challenges, scholars pleaded for a purpose-based reduction (teleologische Reduktion) of Sec 617 ACCP, excluding corporate disputes from its scope.[30] However, the Austrian Supreme Court had already clearly rejected this approach by holding that a purpose-based reduction of Sec 617 ACCP is not permitted.[31]

In light of this, legislative amendment is required. The proposed Draft Legislation introduces an exemption clause aimed at excluding corporate disputes from the restrictive provisions of Sec 617 ACCP. Specifically, the Draft Legislation proposes the addition of two new paragraphs—paras 12 and 13—to Sec 617 ACCP. Para 12 stipulates that Sec 617 ACCP does not apply to disputes arising from a corporate relationship and concerning the acquisition of shares in a company that is not a public company (Publikumsgesellschaft). Para 13 further clarifies the definition of a Publikumsgesellschaft, which is defined as a company whose shares have been offered in an offer requiring a prospectus in accordance with the Austrian Capital Market Act or the Austrian Alternative Financing Act.[32]

6. Status Quo of the Legislative Process

The Draft Legislation was debated by the Austrian Justice Committee (Justizausschuss) but was postponed in May 2024.[33] The Austrian parliamentary elections in fall 2024 brought the legislative process to a premature end. Under Austria’s discontinuity principle, all legislative proposals that have not been passed and are still under committee consideration at the end of a legislative period are not carried over into the next term.[34] However, this does not mark the definitive end of the Draft Legislation. In Austrian parliamentary practice, it is customary (parlamentarischer Usus) to reintroduce draft laws that remain relevant and up-to-date in subsequent sessions. This clearly applies in this case, making it highly likely that the draft will be reintroduced.

7. Analysis of the Draft Legislation

The Draft Legislation aims to facilitate arbitration for natural persons participating in corporations or acquiring shares while safeguarding consumer protection. In the author’s view, this balance is effectively achieved. The exemption of corporate disputes from the restrictions of Sec 617 ACCP creates a practical solution for resolving corporate disputes by arbitration while maintaining a high standard of consumer protection. Specifically, counter-exemption of public companies (Publikumsgesellschaft) ensures that consumers, particularly those acquiring shares for non-commercial purposes like savings or pensions, retain the right to resolve disputes through state courts, in line with consumer protection principles.

Additionally, consumer protection provisions such as Sec 6 para 2 lit 7 ACA remain unaffected by the Draft Legislation. This provision stipulates that arbitration clauses involving consumers must be individually negotiated and cannot be included in standard terms and conditions or standard contract forms.[35]

Further, exempting corporate disputes from Sec 617 ACCP eliminates potential jurisdictional conflicts between state courts and arbitral tribunals.

In conclusion, the proposed Draft Legislation provides for an elegant, straightforward, and arbitration-friendly solution to resolve the overarching effect of Sec 617 ACCP on corporate disputes. The Draft Legislation strengthens Austria’s position as an arbitration hub, aligning with the founding objectives of Austrian arbitration law.[36]

8. Conclusion

To summarize, the Draft Legislation represents a significant step toward modernizing Austrian arbitration law by carefully balancing the need for consumer protection with the efficiency demands of commercial arbitration. While the hopes of scholars and practitioners for the approval of the Draft Legislation in the last legislative period have been disappointed,[37] it is crucial that its importance is recognized in the new legislative period and that it is finally enacted.

In any case, it would be not only in the interests of legal certainty and clarity but also in the strengthening of Austria as a competitive arbitration hub. 

***

Franziska Hauser is an Austrian lawyer pursuing her LL.M. at NYU. Before coming to New York, she worked as a senior associate in the arbitration department of a leading Austrian law firm, excelled in the Willem C. Vis International Moot Court—winning awards such as the Werner Melis Award—and passed the Austrian Bar Exam in 2023.

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[1]     See legal principle RS0045318, Austrian Supreme Court; Austrian Supreme Court, 16.12.2013, 6 Ob 43/13m.

[2]     Sec 617 ACCP, available here (retrieved on 1.12.2024).

[3]     Legal principle RS0129263, Austrian Supreme Court.

[4]     Reiner, Schiedsverfahren und Gesellschaftsrecht, GesRZ 2007, 151, 168.

[5]     3826/A, 31.1.2024 (Draft of a federal law amending the ACCP, XXVII. GP), available at: https://www.parlament.gv.at/dokument/XXVII/A/3826/imfname_1607376.pdf (retrieved on 23.11.2024).

[6]     Plavec in Kodek/Oberhammer, ZPO-ON § 617 ZPO para 1.

[7]     Plavec in Kodek/Oberhammer, § 617 ZPO para 5.

[8]     Nueber, Schiedsvereinbarungen mit Verbrauchern im GmbH-Recht, Zak 2010/70, 48; UNCITAL-Model Law, available at: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf (retrieved on 26.11.2024).

[9]     Plavec in Kodek/Oberhammer, § 617 ZPO para 2; Position Paper of VIAC, p 2, available at: https://www.parlament.gv.at/PtWeb/api/s3serv/file/0f9f818c-969c-42c4-ae9b-657c07bd8f51 (retrieved on 26.11.2024).

[10]   Explanatory Notes (ErläutRV) 1158Annex to the National Council XXII GP, p 22, available at: https://www.parlament.gv.at/dokument/XXII/I/1158/fname_050764.pdf (retrieved on 26.11.2024).

[11]   Austrian Supreme Court, 6 Ob 43/13m, para 6.1; Plavec in Kodek/Oberhammer, § 617 ZPO para 4.

[12]   Austrian Supreme Court, 28.2.2018, 6 Ob 14/18d; Deixler-Hübner/Schauer, Schiedsgerichtsbarkeit: Reform in der 27. Gesetzgebungsperiode? ecolex 2020, 109, 111.

[13]   See Austrian Supreme Court, 6 Ob 43/13m; Austrian Supreme Court, 6 Ob 14/18d.

[14]   Legal principle RS0065238, T12, Austrian Supreme Court.

[15]   Plavec in Kodek/Oberhammer, § 617 ZPO para 15; Czernich, Schiedsgerichtsbarkeit bei Gesellschafterstreitigkeiten unter Verbraucherbeteiligung: Gesetzesvorschlag zur Problemlösung, NZ 2021/182, 651.

[16]   See also Reiner, GesRZ 2007, 168.

[17]   See also Schifferl/Kraus, § 617 ZPO und Schiedsklauseln in Gesellschaftsverträgen, GesRz 2011, 341; Czernich, NZ 2021/182, 651.

[18]   See also Hausmaninger in Fasching/Konecny³ IV/2 § 617 ZPO para 25.

[19]   For further details, see infra Section 4.

[20]   Czernich, NZ 2021/182, 651.

[21]   See also id.

[22]   Id.

[23]   Austrian Supreme Court, 6 Ob 43/13m; VIAC Position Paper; Position Paper of ICC, available at: https://www.parlament.gv.at/gegenstand/XXVII/SN/277190/ (retrieved on 26.11.2024); Position Paper of Austrian Chamber of Notaries, available at: https://www.parlament.gv.at/PtWeb/api/s3serv/file/e38270ce-822c-4257-be82-407d42a95dd (retrieved on 26.11.2024).

[24]   ICC Position Paper.

[25]   Explanatory Notes (ErläutRV) 3222 Annex to the National Council XXIV GP, p 1, available at: https://www.parlament.gv.at/dokument/XXIV/I/2322/fname_303831.pdf (retrieved on 18.11.2024).

[26]   BuA Liechtenstein 163/2016, p 7, available at: https://bua.regierung.li/BuA/default.aspx?nr=163&year=2016&erweitert=true (retrieved on 25.11.2024).

[27]   Id, p 47.

[28]   Münch in MünchKomm ZPO⁶, § 1031 Rz 68; Hausmaninger in Fasching/Konecny³, § 617 ZPO paras 15 et seqq.

[29]   See Art. 353 et seqq. Swiss Code of Civil Procedure (SR 272); Art. 176 et seqq. Swiss Federal Act on Private International Law (SR 291); Hausmaninger in Fasching/Konecny³, § 617 ZPO para 16.

[30]   See Öhlberger, Sind Schiedsklauseln in GmbH-Gesellschaftsverträgen noch möglich? ecolex 2008, 51; Terlitza/Weber, Zur Schiedsfähigkeit gesellschaftsrechtlicher Streitigkeiten nach dem SchiedsRÄG 2006, ÖJZ 2008, 1; Schifferl/Kraus, GesRZ 2011, 341; Trenker/Demetz, Schiedsfähigkeit von Beschlussmängeln in der GmbH, wbl 2013, 1; Nueber, Zak 2010, 48.

[31]   Austrian Supreme Court, 6 Ob 43/13m, para 5.5.

[32]   3826/A, 31.1.2024.

[33]   https://www.parlament.gv.at/gegenstand/XXVII/A/3826?selectedStage=100 (retrieved on 23.11.2024).

[34]   Exceptions are in place for popular initiatives and citizens’ initiatives, see Art 28 (4) Federal Constitutional Act, English translation available at: https://www.ris.bka.gv.at/Dokumente/Erv/ERV_1930_1/ERV_1930_1.pdf (retrieved on 2.12.2024).

[35]   Apathy/Frössel in Schwimann/Kodek (ed.), ABGB Praxiskommentar⁵ (2021) § 6 KSchG para 83.

[36]   See Explanatory Notes 3222, XXIV GP, p 1.

[37]   See Deixler-Hübner/Schauer, ecolex 2020, 111.

The Intesa Sanpaolo Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that it will host, together with SciencesPo Law School, the 5^th edition of the Intergenerational Arbitration Symposium. The Symposium, which will take place this coning Monday, February 10, 2025, from 9.00 am to 12.30 pm at NYU School of Law, allows young scholars interested in commercial arbitration to present their ideas and have more experienced scholars and practitioners comment on their presentations and the papers on which their presentations are based.

For more information about the speakers, the debaters, and the moderators, please see the attached flyer. Please note that although the event is free of charge, registration is required.

Professor Franco Ferrari, the Director of NYU School of Law’s Intesa Sanpaolo Center for Transnational Litigation, Arbitration, and Commercial Law, has just published a commentary on the United Nations Convention on Contracts for the International Sale of Goods (CISG). The 740-page long article-by-article commentary, which Professor Ferrari authored together with German colleagues, is part of a volume dedicated to the German Commercial Code.

Professor Ferrari’s contribution focuses on the CISG’s “General Provisions” contained in its Part I (addressing the CISG’s interpretation and gap-filling, the interpretation of statements and other conduct, trade usages, form requirements), the provisions contained in Part II, titled “Formation of the contract” (focusing on the offer, its effectiveness and the possibility of its withdrawal, the revocability of the offer, the effects of the rejection of the offer, the acceptance and its effectiveness, the effects of an acceptance modifying the offer, the time for acceptance, the consequences of a late acceptance, the time of conclusion of the contract, the inclusion of standard contract forms, and the battle of forms), the CISG’s interest provision, and those contained in Part IV, dedicated to the “Final Provisions”. These provisions set forth, although not exhaustively, the commitments in international law that a State assumes when it becomes a Contracting State to the CISG. For more info, follow this link: https://www.beck-shop.de/viertes-buch-handelsgeschaefte/product/36523811

NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that it will host, together with the Shanghai International Dispute Resolution Center, the Commercial Arbitration Research Center of the Shanghai International Arbitration Center (SHIAC), and Jincheng Tonga & Neal Law Firm (JT&N) an in-person event titled “Who Owns International Arbitration.” The event, which will take place on Friday, January 17, 2025, at the premises of the Shanghai International Dispute Resolution Center, will address the stakeholders’ expectations regarding due process, efficiency, party autonomy, as well as other important features of international commercial arbitration.

In particular, in the first part of the event, moderated by Mr. Rui Zou, the Deputy Director of the Cooperation and Development Department of SHIAC, Ms. Weijun Wang, SHIAC’s Secretary-General, will give some opening remarks under the heading “Balance of Trinity: SHIAC’s view and practice on arbitration proceedings”, while Professor Franco Ferrari, the Center’s Executive Director, will give the keynote speech titled ”Party autonomy and its limitations in international arbitration.”

The second part of the event will be a panel discussion focusing on “Risk and Prevention in the Cross Border Investment Context and the Choice of Dispute Resolution Clauses”. The participants will be Ms. Christine Kang (Partner and Co-Chair of the China Practice of Hughes Hubbard Reed), Ms. Suosheng Xu (Director of the Cooperation and Development Department of SHIAC), Mr. Alex Lu (CEO BrioHealth Technologies), Mr. JianJun Zhang (Legal and Compliance Director, Zhejiang Seaport), and Mr. Salmon Zhou (Partner, JT&N).

The second panel discussion will examine “Who Owns International Arbitration”. It will see the participation of Domenico Di Pietro (as moderator), Ms. Guang Yang (Deputy Secretary General of SHIAC), Ms. Tina Zhang (Legal Director, Donjiu Panyi Shanghai Property Management Co. Ltd), and Ms. Lexie Du (Partner, JT&N).

Mr. LeiLei Ye, the Managing Partner of JT&M, will give the closing remarks.

For more information, see the flyer!

NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that its Executive Director, Professor Franco Ferrari, submitted an amicus curiae, co-authored with Professor Andrea Bjorklund from McGill University, in the matters CC/Devas Ltd. et al. v. Antrix Corp. Ltd. et al., case number 23-1201, and Devas Multimedia Pvt. Ltd. v. Antrix Corp. Ltd. et al., case number 24-17, pending before the Supreme Court of the United States.

The issue to be decided relates to whether the Foreign Sovereign Immunities Act (“FSIA”) as applied to actions to recognize and enforce arbitral awards against foreign states requires, as held by the 9^th Circuit, plaintiffs not only to satisfy the FSIA’s clearly stated requirements, but also to plead and prove that a foreign state has “minimum contacts” with the United States to establish personal jurisdiction over a foreign sovereign in an action seeking recognition of an international arbitration award.

In their brief, Professors Ferrari and Bjorklund argue not only that the FSIA does require no such thing. Rather, the FSIA states that “[p]ersonal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) [i.e., subject matter jurisdiction] where service has been made under section 1608 of this title.” 28 U.S.C. § 1330(b). According to Professors Ferrari and Bjorklund, there is no ambiguity to that statutory command: “Under the FSIA, subject matter jurisdiction plus service of process equals personal jurisdiction.” GSS Group Ltd. v. Nat’l Port Auth., 680 F.3d 805, 811 (D.C. Cir. 2012) (internal quotations omitted). And, under the FSIA, subject matter jurisdiction is explicitly authorized in any action against a foreign state “either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration . . . or to confirm an award made pursuant to such an agreement to arbitrate” if “the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.” 28 U.S.C. § 1605(a)(6).

Professors Ferrari and Bjorklund also argue that the 9^th Circuit’s ruling impermissibly construes the FSIA in a way that contravenes the United States’ well-established obligations under both the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States.

The full text of the brief can be downloaded by following this link: https://www.supremecourt.gov/DocketPDF/23/23-1201/334873/20241211150209011_120118%20Brief.pdf

The Center for Transnational Litigation, Arbitration, and Commercial Law is pleased to announce that both the Hague Conference on Private International Law and the Permanent Court of Arbitration (PCA) will each again be offering a summer internship for students who have or can obtain NYU PILC grants. These grants are only available to JD students.  There is one internship for each institution. You can learn more about these institutions on their websites. The PCA internship focuses on international arbitration.  The Hague Conference internship involves issues of private international law, sometimes in the commercial area and sometimes in the family law field. The Hague Conference does try to accommodate a student’s interest, but often they will specify ahead of time what they plan for the student intern and that may affect the selection process.

Interested students should send a letter of application to Professor Linda Silberman (linda.silberman@nyu.edu) (Co-Director of the Center for Transnational Litigation, Arbitration, and Commercial Law) and copy her assistant Stephany Ramos (Stephany.ramos@nyu.edu).  Applications should include the following information: a resume, your unofficial law school transcript with first-semester grades (to the extent you have them), and a statement of interest and experience.  In particular your foreign language abilities, any experience abroad, and courses of study in areas involving private and public international law and international arbitration should be noted.  The statement should also include reasons why you would like the internship and what skills you would bring to it.  Identify whether you are interested in one or both of the internships, and if both, which one you would prefer and why.  You may submit an application prior to the receipt of first-year grades and then update that information as it comes in.

For additional information, interested applicants may contact Professor Silberman directly or current NYU students who had one of these internships in the past.

For the Hague Conference: Ella Hetfield, 2024 summer intern (emh9516@nyu.edu);  Ellie Webb, 2023 summer intern (mew10003@nyu.edu)

For the PCA: Junius Williams, 2024 summer intern (jw3621@nyu.edu); Jas Singh, 2023 summer intern (js13467@nyu.edu)

Applications should be submitted to Professor Silberman, at the latest by January 20, 2025.   Professor Silberman will be in her office until the end of the 2024 calendar year.  She is not in residence at NYU in January and February, 2025, but can speak with students by phone. Once applications are in, she may try to schedule a few interviews of the strongest candidates via Zoom. A decision will be made by mid-February.

Professor Franco Ferrari, the Director of NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law has just published a paper in French on the importance of the law of the seat in the peer-reviewed Revue de droit international et de droit comparé (L’importance du siège de l’arbitrage, Revue de droit international et de droit comparé (2024) 225-251). In the paper, Professor Ferrari shows, as he did in a series of other papers (including in his paper Plures leges faciunt arbitrum, 37 Arbitration International (2021) 579-597), that in international arbitration the lex loci arbitri has not lost its importance, which is not to say that it operates as the exclusive source of the arbitral process. In Professor Ferrari’s view, it is the law of the seat that primarily furnishes arbitration its regulatory norms, in the form of ground rules in accordance with which any arbitration may take place at the arbitral seat. But he also shows that the law of the seat is not the only law imposing itself upon an international arbitration. In other words, the regulatory sovereignty of the state of the seat of arbitration is not necessarily the only one to be triggered during the different stages of an arbitration’s life-cycle. This is due to the fact that this regulatory sovereignty encounters both subject-matter limitations and territorial limitations, and, therefore, depending on what matter is to be addressed – and when and by whom – may call into play the regulatory sovereignty of States other than that of the seat.

The Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that on October 7, 2024, Honorable Justice Cortesi will give a talk titled “The Interpretation and Application  of the CISG: the Good, the Bad, and the Ugly”. The in-person event, to take place at NYU School of Law, Furman Hall 900, 245 Sullivan Street, will focus on whether the United Nations Convention on Contracts for the International Sale of Goods, CISG, is interpreted and applied as intended by its drafters. Justice Cortesi will point to the difference in methodology applied by the courts of different Contracting States to the CISG and show what is wrong with certain interpretive trends that can be identified in the courts of certain Contracting States. He will also address the reasons behind these trends.

The talk by Justice Cortesi will be followed by a Q&A session, which will be moderated by Professor Franco Ferrari, the Center’s Executive Director and an expert on international sales law.

Honorable Justice Francesco Cortesi graduated cum laude from Bologna University School of Law in 1994; he then specialized in international commercial law at Tilburg University School of Law (Netherlands).

In 1999, Justice Cortesi was appointed to the District Court of Bologna. In 2001, he was appointed to the District Court of Rimini, where he mainly dealt with disputes regarding contractual matters, consumer law issues, and professional malpractice torts. In 2007, he moved to District Court of Forlì, where he was able to focus on those very same areas of law. During his tenure there, he rendered some of the most relevant decisions concerning the CISG, many of which have been translated into various languages, including English, and are taught at law schools around the globe.

In 2006, Justice Cortesi was appointed to the Government Committee for the revision of the Italian Civil Code. In January 2015, he was appointed to the Italian Supreme Court, becoming one of the two youngest justices ever appointed to the Italian Supreme Court. In 2018, he was appointed to the Research Department of the Italian Constitutional Court. Over the years, Justice Cortesi has been lecturing at the Bologna University School of Law mainly on commercial and consumer law matters and course on the “Methodology of law”. He is also a two-time scholar-in-residence at the NYU Center for Transnational Litigation, Arbitration, and Commercial Law. He is also a prolific author focusing mainly on private law and constitutional law matters.

Participation in the event is free of charge, but you will need to register. To do so, please use this link: https://forms.gle/PiYNXi3iv3Qbi1N27

The Center for Transnational Litigation, Arbitration, and Commercial Law at NYU is glad to be able to invite you to a seminar titled “The EU in the Gulf region” with the participation of Mr. Luigi Di Maio, the EU Special Representative for the Gulf region. The seminar, to take place on Tuesday, September 24, 2024 – 6:30-8:00 pm Lipton Hall, NYU School of Law, 108 West 3rd Street, NY, NY 10012, will be moderated by Professor Franco Ferrari, the Center’s Executive Director.

Luigi Di Maio, who has been the EU Special Representative for the Gulf region since June 1, 2023, served as Minister of Foreign Affairs of Italy from September 2019 to October 2022. In 2022, he was President of the of the Council of Europe’s Parliamentary Assembly. From June 2018 to September 2019 he held the positions of Deputy Prime Minister of Italy, Minister of Economic Development and Trade, Minister of Labour and Social Policies. From March 2013 to March 2018 he was Vice President of the Chamber of Deputies and a Member of the European Union Affairs Committee in the 17th Italian legislature. During his mandate as Foreign Minister he chaired, among others, the G20 Foreign Affairs Ministers meeting, the G20 Trade Ministers meeting, the G20 Ministerial Meeting on Afghanistan, the June 2021 plenary Ministerial Meeting of the International Anti-Daesh Coalition, as well as the first Mediterranean Ministerial Dialogue on the Food Security Crisis in June 2022. He was the chair of three annual editions (2019, 2020, 2021) of the MED Dialogue Conference aiming to develop a positive agenda for the wider Mediterranean region, at a time of pandemic and political and economic transition, based on multilateralism as a strategy for conflict resolution.

Franco Ferrari is the Clarence D. Ashley Professor of Law and the Director of the Center for Transnational Litigation, Arbitration, and Commercial Law at NYU School of Law. Before joining NYU, he was a full professor of law at Tilburg University (in the Netherlands), the University of Bologna, and the University of Verona (in Italy). After serving as a member of the Italian delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he was Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch, from 2000 to 2002, where he was responsible for numerous projects, including the preparation of the UNCITRAL Digest on applications of the UN Sales Convention. He has published more than 360 law review articles, book chapters, and encyclopedia entries in various languages and 50 books in the areas of international commercial law, conflict of laws, comparative law, and international commercial arbitration. Professor Ferrari, a recipient of the 2018 Certificate of Merit for High Technical Craftmanship and Utility to Practicing Lawyers and Scholars awarded by the American Society of International Law, is a member of the editorial boards of various peer-reviewed European law journals.

Registration is mandatory; to register, please use this link.

NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law is glad to be able to announce that on September 16, 2024, it will host a seminar titled “Restituting Nazi-Confiscated Art: A Restatement”.

The in-person only event, to take place from 6.30-8.00 pm in the Lester Pollack Colloquium Room, located at 245 Sullivan Street, NY, will feature Professor Matthias Weller as the main speaker and Professor Francesca Ragno, Professor Clayton P. Gillette, and Mr. Alfred Fass as commentators, while the Center’s Executive Director, Professor Franco Ferrari, the seminar’s convener, will act as moderator.

As you may know, in 1998, 44 States endorsed the “Washington Conference Principles on Nazi-Confiscated Art”, 11 soft-law principles to encourage “just and fair solutions” for artworks and cultural property that had been taken from Jewish people in the Holocaust. These principles have set in motion a far-reaching process of restitution of artworks outside court proceedings producing thousands of decisions in the six most active countries: Germany, Austria, the Netherlands, France, the United Kingdom, and Switzerland – good reasons to distill from this practice a “Restatement of Restitution Rules for Nazi-Confiscated Art” in order to identify recurring issues, tipping points, and a “grammar of reasons” that will help to address recurring points of controversy. And it is this “Restatement”, elaborated by Professor Matthias Weller and his team of PhD researchers over the last five years, that Professor Weller will present on the occasion of the event hosted by the Center. In his presentation, Professor Weller will focus on the concept behind and the results of this research project, possible implications for international practice, as well as the context of his work in Germany, where the Government is currently undertaking a major reform of the restitution process, with implications also for arbitration.

Although participation in the event is free of charge, given the limited space, registration is required.

You can register using this link: https://forms.gle/EGGQa68YHdjfyYhp8

For more information, please see these short bios of the speaker, the commentators, and the moderator:

Matthias Weller, Mag.rer.publ., MAE, is the Alfried Krupp von Bohlen und Halbach Professor for Civil Law, Art and Cultural Property Law, a Director of the Institute for German and International Civil Procedural Law, and a Founding Member of the Center for Reconciliation Research. He studied law at the University of Heidelberg and, as a scholar of the German Scholarship Foundation, at the University of Cambridge,. He was the Joseph Story Fellow for Private International Law at the Harvard Law School in 1998/1999. He worked for an attorney at the Bar of the German Federal Court of Justice in 2008/2009 and contributed to almost 100 appeal cases in civil and commercial matters. He is, inter alia, a member of the German Arbitration Institution (DIS) and the Court of Arbitration for Art (CAfA), a subdivision of the Dutch Arbitration Institution. In 2024, next to completing the Restatement Project, he organized and delivered, commissioned by the German Government, the „International Study on Strengthening the German Advisory Commission“, i.e., the Commission that is currently hearing cases on the restitution of Nazi-looted Art in out-of-court mediatory proceedings. He is also acting as arbitrator, in particular in cross-border disputes.

Francesca Ragno is Full Professor of International Law at the Department of Political and Social Science of the University of Bologna and NYU Global Professor of International Arbitration (Paris Program). She graduated in Law (J.D.) with honors at the University of Bologna and obtained her PhD from the University of Verona. Throughout her career, she has done research and lectured in Italy and at many universities abroad, such as the University of Heidelberg, Paris Nanterre and the University of Pittsburgh (as a Fulbright Distinguished Chair). Her teaching and scholarship span public international law, EU law, international trade and business law, transnational litigation, conflict of laws, international commercial arbitration and art law. She is a qualified attorney in Italy.

Clayton P. Gillette is the Max E. Greenberg Professor of Contract Law at NYU School of Law, where he teaches in the areas of contracts, commercial sales, and local government law. He has also served as Vice Dean at NYU School of Law. Prior to joining the NYU faculty, Gillette served as the Perre Bowen Professor of Law at the University of Virginia School of Law and as the Warren Scholar in Municipal Law and Associate Dean at Boston University. He has been a visiting professor at the University of Michigan, the University of Virginia, and Columbia Law School. Professor Gillette earned his J.D. magna cum laude from the University of Michigan and a B.A. magna cum laude from Amherst College. Before entering academia, he clerked for Judge J. Edward Lumbard of the United States Court of Appeals for the Second Circuit, and was associated with Cleary, Gottlieb, Steen and Hamilton in New York City.

Alfred Fass, a businessman and historian, is the great-grandson of Nuremberg toy manufacturer Abraham Adelsberger (1863-1940), who owned an art collection of at least 1,000 objects. After his company Fischer & Co. ran into financial difficulties at the end of the 1920s, Adelsberger used parts of the collection as loan collateral with lenders such as Dresdner Bank. The Abraham Adelsberger Art Research Project of the Institute for Art History at Freie Universität Berlin, funded by the German Lost Art Foundation, reconstructs the collection and also investigates the role of banks in monetizing the objects. While Abraham Adelsberger sold works of art at auction before 1933, the family lost the remainder of the collection due to Nazi persecution. In 1939, Abraham Adelsberger fled with his wife Clothilde to Amsterdam, where he died in 1940. Clothilde Adelsberger was deported to Bergen-Belsen concentration camp in 1943 and survived the Holo­caust.

Franco Ferrari is the Clarence D. Ashley Professor of Law and the Director of the Center for Transnational Litigation, Arbitration, and Commercial Law at NYU School of Law. Before joining NYU, he was a full professor of law at Tilburg University (in the Netherlands), the University of Bologna, and the University of Verona (in Italy). After serving as a member of the Italian delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he was Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch, from 2000 to 2002, where he was responsible for numerous projects, including the preparation of the UNCITRAL Digest on applications of the UN Sales Convention. He has published more than 360 law review articles, book chapters, and encyclopedia entries in various languages and 50 books in the areas of international commercial law, conflict of laws, comparative law, and international commercial arbitration. Professor Ferrari, a recipient of the 2018 Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars awarded by the American Society of International Law, also acts as an international arbitrator both in international commercial arbitrations and investment arbitrations. 

This is to announce that the Center for Transnational Litigation, Arbitration, and Commercial Law and, thanks to Professor Francesca Ragno (from Bologna University’s Department of Political Science), Bologna University will host an in-person event focusing on the 2023 reform of the Italian arbitration regime. The event will highlight the good, the bad, and the ugly of the new regime.

The event, to take place on June 28, 2024, starting at 4.00 pm local time, in Bertinoro, south of Bologna, will be held in Italian.

The speakers will be Hon. Justice Francesco Cortesi (Italian Supreme Court) and Professors Massimo Benedettelli (Università degli Studi di Bari), Giuditta Cordero-Moss (University of Oslo), Chiara Giovannucci Orlandi (Bologna University), Luca Radicati di Brozolo (Università Cattolica del Sacro Cuore), Francesca Ragno, who is also the co-convener of this event together with the Center’s Director, Professor Franco Ferrari, the Clarence D. Ashley Professor of Law at NYU School of Law, Marco Torsello (Verona University), and Elena Zucconi Galli Fonseca (Bologna University).

The various talks will address, inter alia, the arbitration culture in Italy and abroad, arbitration in Italy from an international perspective, arbitration and the jurisdiction of domestic courts, the independence and impartiality of arbitrators, the determination of the law applicable to the merits, and the recognition and enforcement of awards as well as the arbitrability of corporate disputes.

For the full program, please click here.

NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that, together with SciencesPo Law School and Universidad Austral Buenos Aires, it will host a conference on the myth and reality of party autonomy in international commercial arbitration. The in-person conference, to be held in Spanish, will take place in Buenos Aires, on June 7th, 2024, from 9:00 AM to 12:30 PM local time.

The speakers will be Francisco A. Amallo, Paul Arrighi, Diego P. Fernandez Arroyo, Roque Caivano, Maria Ines Corra, Domenico Di Pietro, Sandra Gonzalez Vila, Mariana Lozza, Maria Blanca Noodt Taquela, Julio Cesar Rivera (h), Veronica Sandler, and Joe Tirado.

Professor Franco Ferrari, the Center’s Executive Director, will make some introductory remarks and give an overview of the issues to be addressed over the course of the conference, which will be divided into two sessions, dedicated to potential limits to party autonomy in choosing the law applicable to the merits and whether the parties really own the arbitral process, respectively.

The conference will be preceded by a presentation of two books co-authored by Professor Ferrari and Professor Friedrich Rosenfeld in Spanish, together with Professors Julio Cesar Rivera (h) and Juan Ignacio Stampalija, respectively. For more information, please click here: https://bit.ly/3xjZ4zT .

The Center is glad to announce that, together with SciencesPo Law School, Queen Mary University of London, and National University of Singapore Law, it will host once again the Cross-Examination Moot. The Cross-Examination Moot, which won the Award for the Best Development in Arbitration in 2022, is a competition for university teams with an exclusive focus on cross-examination techniques in international arbitration. Students will attend various rounds of hearings during which they will cross-examine each other’s witnesses and experts (https://www.crossmoot.com/).

This year’s case concerns a dispute over the coding of software for the life sciences industry, including accusations of improperly using and misappropriating intellectual property rights.  The registration for this year’s edition, the 4th edition, to take place from November 16th – 20th, 2024 in Paris, has just opened (to register, follow this link).

Professor Franco Ferrari, the Executive Director of the NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law will participate in the Dubrovnik Conference on Cross-Border Dispute Resolution, co-hosted by the Law Schools of the University of Pittsburgh, the University of Verona, and the University of Zagreb. The Conference will start on Wednesday, May 8th, 2024, with a half-day session on cross-border professional responsibility and privilege, followed by full-day sessions on Thursday, May 9th, and Friday, May 10th, covering essential aspects of international arbitration and international litigation. Each day will include discussion-oriented presentations and workshops on practical international arbitration and litigation issues. Professor Ferrari will participate as a speaker on both Thursday and Friday. His talks will focus on the importance of the seat of arbitration and forum shopping, respectively. 

The other presenters will be Professor Ronald A. Brand (University of Pittsburgh School of Law), Professor Milena Djordjevic (University of Belgrade), Professor Dora Zgrabljić Rotar (University of Zagreb), Professor Giesela Rühl (Humboldt University Berlin), and Professor Marco Torsello. For more information, including the full program, please click here.

The Center for Transnational Litigation, Arbitration, and Commercial Law is glad to be able to announce that its Director, Professor Franco Ferrari, has just published the Spanish version of the book titled “Recognition and Execution of Foreign Arbitral Awards: A Concise Guide to the New York Convention’s Uniform Regime”, which Professor Ferrari co-authored with Professor Friedrich Rosenfeld, and which Professor Charles T. Kotuby edited. The Spanish version, titled “Reconocimiento y ejecución de laudos arbitrales extranjeros”, was prepared by Professor Juan Ignacio Stampalija, a professor at the Universidad Austral, Buenos Aires.

This edition analyses case law from major arbitration jurisdictions, including, thanks to the contribution of Professor Stampalija, many Latin American ones, to explain the New York Convention’s sphere and scope of application, the duty to recognize and enforce arbitration agreements and arbitral awards as well as its limitations, the grounds for refusal related to jurisdiction, those related to proper notice and the ability to present one’s case, the grounds for refusal related to procedure and those related to the award’s status under the law applicable to it, as well as the grounds for refusal related to public policy, and the procedure and formal requirements for recognition.

This is the second book co-authored by Professor Ferrari in Spanish, the first one being a comparative introduction to international commercial arbitration, which Professor Ferrari co-authored with Professors Friedrich Rosenfeld, John Fellas, and Julio Cesar Rivera (h). titled “Arbitraje Comercial Internacional”.

The Center is glad to announce that it will host, together with SciencesPo Law School, an in-person conference to take place on April 24, 2024, at NYU School of Law titled “Exceptionalism in International Commercial Arbitration”. This conference is the second conference co-hosted by the Center and SciencesPo Law School on the topic of exceptionalism, the first one having been held in Paris, at SciencesPo Law School, in November 2023.

The aim of the conference is to highlight by means of a comparative exercise that there are very many differences among the various international commercial arbitration regimes, despite claims of convergence. The speakers will identify features of various arbitration regimes, which are peculiar to those arbitration regimes. In doing so, they will address, inter alia, the arbitrability of claims, arbitration clauses in adhesion contracts, the competence-competence principle, the constitutional review of arbitral awards, deference to decisions upholding an award, the duty of disclosure, the extension of arbitration agreements to non-signatories, resort to the forum non conveniens doctrine at the enforcement stage, and pre-arbitration requirements.

The speakers will be Rafael Alves, Jessica Beess und Chrostin, Caroline Kleiner, Pedro J. Martinez-Fraga, Francesca Ragno, Julio Rivera Jr., Friedrich Rosenfeld, Daniel Schimmel, Linda Silberman, and Juan Ignacio Stampalija. Professor Franco Ferrari, the convener of the conference, will act as moderator. For more information, including on how to register, please click here.

On April 23, 2024, the Center will host Judge Fabienne Schaller, who will give a lecture titled “The Evolution of French Arbitration Law: Teaching From Recent Case Law”. Judge Schaller will focus on decisions rendered in 2022 and 2023 by the International Commercial Chamber of the Paris Court of Appeal (ICCP-CA) of which Judge Schaller is the President. Specifically, she will address the decisions that have either developed or changed the French arbitration regime.

As for Judge Fabienne Schaller, she is a President in the International Commercial Chamber of the Paris Court of Appeal (ICCP-CA). Before taking up this position, she served as an Appeal Judge in the Commercial Division of the Paris Court of Appeal (2016-2018), specializing in transport law, unfair competition, agency, and wrongful termination of contracts. She served as a first instance Judge in the white collar crime division of the High Court of Paris (2014-2016). Between 2008 and 2014, she worked at the Ministry of Justice participating in negotiations for EU directives on procedural safeguards in criminal proceedings and several international conventions within the Counsel of Europe in Strasbourg. Fabienne holds a master in law from Paris Nanterre Law School and an LL.M. in trade regulation from NYU School of Law. After practicing as a lawyer in Paris and New York, she joined the Bench in 1997 and was appointed a Judge in the first instance.

For more information, and for how to register, click here.

The Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that it is convening, together with Bucerius Law School, McGill University – Faculty of Law, and University of Verona School of Law, an in-person arbitration conference focusing on soft law. The event, titled “Soft Law in Arbitration: Concepts and Examples”, will take place on Friday, March 22nd, 2024, starting at 11.00 am, at the University of Vienna, thanks to the generous invitation by Professor Paul Oberhammer, the Dean of the Law School.

Over the years, many soft law instruments addressing various issues that often come up in arbitration (including evidentiary issues, party representation, conflicts of interest, etc.) have been elaborated with the goals of providing guidance to both parties and arbitral tribunals. Still, the increase of the number of these instruments has raised questions as to the impact of soft law in general, and some of these instruments in particular. The conference will address not only the underlying concept of soft law, but also the consequences of the proliferation of soft law instruments, such as their constraining power and repercussion on the flexibility of arbitral proceedings, their relationship with hard law, the role of soft law in the determination of the applicable law, the relevance of soft law for matters of procedure, the use of soft law in investment arbitration, etc. 

The various topics will be addressed by Professors Marco Torsello, Friedrich Rosenfeld, Pilar Perales Viscasillas, Geneviève Saumier, Caroline Kleiner, Andrea Bjorklund, and Dr. Ajar Rab.

Opening remarks will be given by Professors Paul Oberhammer and Stefan Kröll. Professor Franco Ferrari, the Center’s Director, will act as moderator.

For the full program, see here.

The Center is glad to announce that it will host, together with SciencesPo Law School, the 4^th edition of the Intergenerational Arbitration Symposium (IGAS). The in-person Symposium, which will take place on Tuesday, March 12, 2024, from 9.00 am – 12.30 pm, at SciencesPo Law School, allows young scholars interested in commercial arbitration to present their ideas and have more experienced scholars and practitioners comment on their presentations and the papers on which their presentations are based.

This year’s event will be divided into three parts, focusing on “Arbitration beyond Party Autonomy”, “State Control of Arbitral Awards, and “Arbitration and Climate Change”. The speakers at this year’s edition of the IGAS will be Mesut Akbaba, Gustavo Alfonso Delgado Bravo, Estefania Delgado, Saasha Mapani, Marco Seregni (NYU LL.M. ’23), and Chitransh Vijayergia.

Professor Giuditta Cordero-Moss, Mr José Ricardo Feris, and Mr. Noah Rubins, will act as discussants, and Mr. William Brilliat-Capello, Ms. María De La Colina, and Ms. Magdalena Bulit Goni as moderators.  

The conveners, Professor Franco Ferrari, the Center’s Director, and Professor Diego P. Fernández Arroyo will give opening and closing remarks, respectively.

For the detailed program, click here.

To enroll, follow this link: https://www.sciencespo.fr/ecole-droit/en/events/fourth-intergenerational-arbitration-symposium/