Transnational Notes

On April 28, 2023, the NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law will host an in-person conference dedicated to “Deference in International Arbitration”,  The speakers will be, in alphabetical order, Professor George Bermann (Columbia Law School), Rémy Gerbay (Partner at Hughes Hubbard & Reed),Dr. Friedrich Rosenfeld (Partner at Hanefeld, Hamburg & Paris, and Global Adjunct Professor at NYU Paris), Professor Dennis Solomon (University of Passau, Germany), and Paige von Mehren (Senior Associate at Freshfields). The event will be moderated by Professor Franco Ferrari, the Center’s Director.

The starting point of the conference is the realization that the responsibility to control awards is shared among multiple actors of private and public origin. They include arbitral tribunals, arbitral institutions, courts at the seat as well as recognition and enforcement courts. This generally leads to a situation where one and the same issue is assessed multiple times. This, in turn, leads to the question of whether any of these aforementioned decision makers should pay deference to previous determinations by a different decision maker. And it is this question that the speakers will answer on the basis of papers submitted for publication in a book entitled “Deference in International Commercial Arbitration. The Shared System of Control in International

Commercial Arbitration”, co-edited by Professor Franco Ferrari and Dr. Friedrich Rosenfeld, to be published shortly by Kluwer Law International.

For more information, please see the attached flyer.

Please note that even though there is no charge to attend the event, registration is required. To register, please click here.

The Center is glad to be able to announce that on April 27, 2023, from 9.00 am -6.00 pm, it will host a research seminar focusing on papers authored by graduate students enrolled in NYU School of Law’s IBRLA LL.M. program. The seminar will allow the participating graduate students to present the ideas behind their research paper and discuss them with professors visiting the Center for Transnational Litigation, Arbitration, and Commercial Law as well as leading practitioners.

As one may gather from the attached flyer, the topics to be addressed range from the admissibility of illegally obtained evidence, the arbitrability of corporate disputes, the criteria to qualify a jurisdiction as an arbitration-friendly one, Article VI New York Convention, deference, ESG and arbitration, mandatory institutional rules, arbitration in the metaverse, the factors to consider when qualifying an jurisdiction as a  Model Law jurisdiction, the unintended consequences of transparency in arbitration, to the ethnocentric interpretation of the CISG, the relationship between the CISG and Shari’a, and the impact of domestic law on FIDIC contracts.

For more information, please see the attached flyer.

Registration Required.

The Center is glad to be able to announce that later this week, it will host an in-person even focusing on the United Nations Convention on Contracts for the International Sale of Goods – CISG. The event, titled “CISG: 40 (+3) Years and Still Going Strong?” and co-hosted by Bucerius Law School, McGill Faculty of Law, and Vienna University Faculty of Law, will take place in Vienna, on Friday, March 31, 2023, starting at 11.00 am.

The various talks will address CISG-related issues, which are still controversial, including the CISG’s interpretation, the CISG’s gap-filling mechanism, economic hardship under the CISG, its applicability in international commercial arbitration, and the applicability of the principle „iura novit arbiter“ in CISG related matters.

Apart from the Center’s Director, Professor Franco Ferrari, the speakers and moderators will include Prof. Dr. Dr. h.c. Yeşim M. Atamer (University of Zurich), VieAssoc. Prof. Gary F. Bell (National University of Singapore), Prof. Andrea Bjorklund (McGill University), Dr. Luca Castellani (UNCITRAL Secretariat), Prof. José Angelo Estrella-Faria (UNCITRAL Secretariat), Prof. Clayton P. Gillette (New York University), Prof. Dr. Stefan Kröll (Bucerius Law School, Hamburg); Dr. Soterios Loizou (King‘s College London, London), Prof. Dr. Dr. h.c. Paul Oberhammer (University of Vienna); (Prof. Dr. Geneviève Saumier (Mc Gill University, Montreal), Prof. Dr. Nina Tepeš (University of Zagreb, Faculty of Law),Prof. Marco Torsello (Verona University).

For more information, see the flyer.

NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law is hosting a conference in honor of Professor Linda Silberman.  The first woman law professor to receive tenure at NYU, Linda retired from NYU School of Law last year after contributing for more than 50 years through her research, her teaching, and her charisma to shaping NYU School of Law into what it is today.

The conference will take place in person on April 20 & 21, 2023 at NYU. The conference is divided into seven parts, dedicated specifically to Jurisdiction, Choice of Law, Recognition & Enforcement of Judgments, Comparative Law, Transnational Civil Litigation, International Arbitration, and Personal Reflections (reserved for personal remarks by friends and colleagues of Linda Silberman). 

The Center is glad to be able to announce that the following colleagues will participate in the two-day event in person: José Enrique Alvarez (NYU), Jodi Balsam (Brooklyn), John Bellinger (Arnold & Porter), Pamela Bookman (Fordham), Gary Born (WilmerHale), Hannah Buxbaum (Indiana University), Trey Childress (Pepperdine), Jack Coe (Ppperdine), Lord Lawrence Collins (Essex Court Chasmbers), Giuditta Cordero-Moss (Oslo University), Kevin E. Davis (NYU), Bill Dodge (UC Davis), Robin Effron (Brooklyn), Maggie Gardner (Cornell), Paul Herrup (Office of Foreign Litigation), Harold Hongju Koh (Yale), Alexander Layton (Twenty Essex), Eva Lein (Lausanne), Pedro J. Martinez-Fraga (Bryan Cave Leighton Paisner, NYU), Dean Troy McKenzie (NYU), Arthur Miller (NYU), Yuko Nishitani (Kyoto), Marta Pertegás Sender (Maastricht), Aaron Simowitz (Willamette), Allan Stein (Rutgers), Symeon Symeonides (Willamette), Louise Ellen Teitz (RWU), Peter Trooboff (Covington & Burling LLP, Washington), Tobias B. Wolff (Penn), and Katrina Wyman (NYU).  Justice Sotomayor will participate by Zoom.

The Center thanks Professor Katrina Wyman for the continuous and unwavering support in putting this conference together. Without her help this conference would not be taking place.

Please see here for the schedule of events.

Also, please note that although there is no charge to participate in the event, you will need to register to gain access to NYU.

On March 6, 2023, the Center for Transnational Litigation, Arbitration, and Commercial Law will host an in-person seminar entitled “Empirical Data on Annulment of International Awards: What to learn from it? ArbDossier.com and Beyond”. The seminar, aimed at both scholars and practitioners, will survey recent initiatives (including ArbDossier) relating to the collection of data on the annulment  of international awards in different jurisdictions, including China, India, Italy, and Singapore, and examine the role this data may play, if any, in the selection of the seat of arbitration. The seminar will also address the question of whether the data may be used to qualify a jurisdiction as an arbitration-friendly one and, if so, what implications this qualification may have.
 
The seminar will feature Dr. Monique Sasson (a former scholar-in-residence at the Center), Marco Seregni (an Italian lawyer enrolled in our LL.M. program), Bojana Bilankov (a graduate student in out IBRLA LL.M. program and editor-in-chief of ArbDossier), Murtuza Federal (the founder of the Indian firm Federal & Company), Gautam Bhattacharyya (a partner at Reed Smith LLP, operating out of London and Singapore), and Devarsh Saraf (a graduate student at Columbia Law School), the co-founder of www.ArbDossier.com.

For more info, please see the attached flyer.

On 25 and 26 August 2022, the Center for Transnational Litigation, Arbitration, and Commercial Law hosted, together with Columbia Law School and the Arbitration Channel,  a conference on “Arbitration in 2 Worlds” focusing on peculiarities of the Brazilian and the US arbitration regimes. On that occasion, the Center’s Director, Professor Franco Ferrari, gave the keynote address entitled “National International Commercial Arbitration”, based on a recent publication of his (32 Am. Rev. Int’l Arb. 439 (2022), available here). In this address, Professor Ferrari highlighted the importance played by national arbitration laws and their many differences. This lead Professor Ferrari to state that the differences in the various national arbitration regimes, which may apply during an arbitration’s life cycle, do not allow one to speak of a uniform concept of “international commercial arbitration” subject to a uniform regime, although there are, of course, very many common traits in each international commercial arbitration. It is therefore correct to state, as one commentator had just done in the Handbook of International Arbitration, that “such label[s] do not do justice to the complexities of arbitration law and convey an impression of uniformity that does not correspond to reality”.

The video of Professor Ferrari’s keynote is now available on the Arbitration Channel’s YouTube channel.

On October 10^th, 2022, Professor Franco Ferrari, the Center’s Director, will participate as the keynote speaker in the CIArb / CSP Brazil 2022 – Capacity Sharing Program – Goiânia Edition2022. The two-day event, to take place on October 10th and 11th, 2022, and put together by the co-chairs Rose Rameau and Mauricio Gomm, will feature speakers with diverse backgrounds who will give a comprehensive introduction to international arbitration, namely Aureliano Amorim, Caroline Bradley, Napoleao Casado, Paulo Marcos de Campos Batistas, Katherine Dedrick , Frederico Favacho, Hon. Judge Andrea Galhardo Palma, Lucas Mendes, Marlos Nogueira, Thiago Marinho Nunes, Jim Reiman, Christiane Reis, Carla Sahium, and Carol Santoro.

As for Professor Ferrari’s talk, it will be entitled “Is Arbitration a Global Dispute Resolution Phenomenon”. It will show that even though arbitration is a global phenomenon, and even though there may be a global notion of arbitration, there is and will be no global arbitration regime.

For more information on the program and how to register, click here.

The Center is very glad to be able to announce that it will be one of the co-hosts of the 2022 M&A Conference of the Americas to take place in person on 8 August 2022 in São Paulo, Brazil. The event, co-hosted by FGV – Fundação Getulio Vargas (Núcleo de Direito, Economia e Governança) and the School of Law of the University of São Paulo, will be divided into 7 sessions and feature the organizers, Professor Maurizio Levi-Minzi (Adjunct-Professor at NYU and Partner at Debevoise & Plimpton), Professor Mariana Pargendler (from FGV DIREITO SP and Global Professor of Law at NYU Law in Buenos Aires), Professor Carlos Portugal Gouvêa (from USP and Founding Partner of PGLaw), and the following speakers and moderators: Marcelo von Adamek, Paulo Cezar Aragão, André Rodrigues Corrêa, Rodrigo Fialho Borges, Paula Forgioni, Felipe Nutti Giannattasio, Ítalo Godinho Martins, Juliana Krueger Pela, Fernando Magno, Francisco Marino, Judith Martins-Costa, Carlos Portugal Gouvêa, Guilherme Recena Costa, Tarcila Reis Jordão, Francisco Reyes Villamizar, Gabriel Saad Kik Buschinelli, Peter Christian Sester, Renata C. Steiner, Carlos Ari Sundfeld, José Alexandre Tavares Guerreiro, Marcelo Trindade, and Lie Carmo.

For more information and the full program, please click here.

The Center for Transnational Litigation, Arbitration, and Commercial Law is glad to be able to invite you to a webinar entitled “Evidence in International Arbitration” to take place on June 30, 2022, starting at 9.30 am (NY time)/15.30 (CET). The event, which is co-hosted by  the  Danish Institute of Arbitration (DIA), and the Copenhagen Business School (CBS), will address various issues regarding evidence in international arbitration raised by some of the contributions to the “Handbook of Evidence in International Arbitration: Key Issues and Concepts”, which Professor Franco Ferrari and Dr Friedrich Rosenfeld have just published. Specifically, after a few introductory comments by Professor Ferrari and Professor Peter Arnt Nielsen (from CBS), the following topics will be addressed by the following colleagues: “The Interplay Between the Post-award and the Pre-award Regimes with Respect to a Tribunal’s Treatment of Evidentiary Issues” –  Friedrich Rosenfeld; “Iura Novit Curia” –Giuditta Cordero-Moss; “Tribunal-Appointed Experts” –Jonathan Lim; “Costs and Other Sanctions” –Hattie Middleditch; “The Danish Perspective” – Kenneth Hvelplund Pedersen and Hon. Julie Arnth Jørgensen. Steffen Pihlblad, the Secretary-General of DIA, will give the closing remarks.

For more info, please see the attached flyer.

The Center hosted an event entitled “Debating Evidence: Inspired by the Handbook of Evidence in International Commercial Arbitration” on June 10 in Vienna. This event was cosponsored by Baker McKenzie and VIAC and featured several panels including:

·         The normative framework on evidentiary issues – Friedrich Rosenfeld (Partner, Hanefeld) challenged by Helmut Ortner (Partner, Peters Ortner Partner)

·         Privilege – Klaus Peter Berger (Professor, University of Cologne) challenged by Valentina Wong (Counsel, Wolf Theiss)

·         Costs and sanctions – Hattie Middleditch (Associate, Sullivan Cromwell) challenged by Natascha Tunkel (Partner, Knoetzl)

The event was moderated by Niamh Leinwather (Secretary General, VIAC) and Désirée Prantl (Counsel, Baker McKenzie).

For more information, please see the flyer. 

On  June 2022, Professor Franco Ferrari, the Center’s Director, will give a talk on the law applicable to the merits on the occasion of the first ever Italian Arbitration Day (IAD), which is to take place in Rome on June 9, 2022. The event, put together by the Associazione Italiana per l’Arbitrato – AIA and the Milan Chamber of Arbitration (CAM) with the support of several Italian and international organizations (including the Consiglio Nazionale Forense, the International Council for Commercial Arbitration, the International Federation of Commercial Arbitration Institutions (IFCAI), the United Nations Commission on International Trade Law, UNIDROIT, and the Union Internationale des Avocats), will focus on the imminent reform of Italian arbitration law. The event will be divided into four sessions (dedicated to the arbitrator’s duty of disclosure, issues of interim relief in arbitration proceedings, the law applicable to the merits, and the enforcement of arbitral awards respectively). The sessions will be preceded by opening remarks by Andrea Carlevaris and Stefano Azzali (Director, CAM), and a general introduction to the reform by Professor Massimo Benedettelli.

Professor Ferrari will share his session, which will be moderated by Professor Luigi Fumagalli with Professor George Bermann. While Professor Bermann will address the law applicable to the merits in case of a choice of law by the parties, Professor Ferrari will focus on the law applicable absent such choice.

For the event flyer, see here.

Professor Franco Ferrari, the Center’s Director, will give the keynote address entitled “The law applicable to the arbitration agreement” on the occasion of the 4^th Athens International Mediation and Arbitration Conference to be held in Athens on June 1^st and 2^nd, 2022. Professor Ferrari, who specializes in international commercial and investment arbitration, will show why the answer to the question of which law applies to arbitration agreements depends at what point in time over the course of the life-cycle of an arbitration the question is asked, and for what purpose, and by whom. There is no one-size-fits all answer to the question.

Here is the program with more information.

On April 6, 2022, Professor Franco Ferrari, the Center’s Director, will give a talk on the occasion of a conference co-hosted by the Institute for Transnational Arbitration (ITA) and the American Society of International Law (ASIL) to take place in hybrid mode in Washington. The conference, dedicated to “Arbitration in Changed Circumstances”, will be divided into two panels, preceded by a keynote address by Ms. Lucy F. Reed entitled “Arbitration as a Cornerstone for Democracy and the Rule of Law”.

The panel in which Professor Ferrari will participate will focus specifically on how arbitration is adapting to the Covidー19 pandemic as well as shifts in geo-political and geo-economic power, the reassertion of sovereignty in international investment law, and an emerging proliferation of institutional competitors to arbitration. Professor Ferrari will share the panel with Professor Kun Fan from the University of New South Wales, who will introduce and act as the moderator, Professor Pamela Bookman (from Fordham University School of Law), Ms. Meg Kinnear, the Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID), Ms. Natalie Y. Morris-Sharma, a government legal counsel at the Attorney-General’s Chambers of Singapore, and Professor August Reinisch (from the University of Vienna).

In his talk, Professor Ferrari will focus on the effect of the Covid-19 pandemic on arbitration and suggest that, even though the importance of the pandemic on arbitration cannot be denied, for very many obvious reasons, the pandemic was not really the original trigger of some of the changes which have occurred over the last two years, but rather a catalyst. The pandemic has accelerated a movement that goes further back, but it has not itself triggered the changes.

To register for this event, please visit the ITA-ASIL Conference website.

The Center will host a webinar series entitled “Contract Law for Arbitrators: Brazilian Law, New York Law, and Transnational Law. The four webinars, to be held on April 20 and 29, and May 3 and 13^th, 2022, which will be moderated by Professor Franco Ferrari, the Center’s Director,  and Professor Cristiano de Sousa Zanetti form Universidade de São Paulo, will address four specific contract law issues, which over the last years have been the focus of many arbitration proceedings all over the world, namely contract interpretation , change of circumstances and economic hardship, good faith, and penalty clauses. Each issue will be examined from the perspectives of Brazilian law, New York law, and transnational law, including the United Nations Convention on Contracts for the International Sale of Goods (CISG), by leading arbitration practitioners, such as Rafael Alves, Eduardo Damião Gonçalves, Benno Kimmelman, D. Brian King, Juliana Krueger Pela, Catarina Monteiro Pires, Ina Popova, and Laurence Shore.

Participation in the webinars is free of charge but requires registration. To register, follow the links to be found on the attached flyer.

On 19 February, from 9.30 am to 6.00 pm, the Center for Transnational Litigation, Arbitration, and Commercial Law alongside NYU’s International Arbitration Association will host the 11th Annual NYU Vis Practice Moot.

The 11th Annual Vis Practice Moot, to be held online, will welcome teams from selected law schools from across the world as well as many distinguished professionals and academics, who agreed to act as arbitrators, including Professor Franco Ferrari, the Center’s Director.

The Practice Moot rounds aim to provide a helpful forum for the Willem C. Vis International Commercial Arbitration Moot participants to practice their oral advocacy skills by pleading before, and receiving constructive feedback from, panels of experienced arbitrators from all around the world. The Practice Moot also enables the participating teams to meet and have a chance to plead against each other before the actual rounds, where more than 3000 students from about 370 law schools from around the world will compete.

For more info, please see the flyer.

On December 1st, 2021, Professor Franco Ferrari will host Italian Supreme Court Justice Francesco Cortesi, a two-time scholar-in-residence at the Center, who will give a talk at NYU on the autonomous interpretation of uniform law instruments in general, and the United Nations Convention on Contracts for the International Sales of Goods (CISG) in particular. Justice Cortesi, who graduated in 1994 cum laude from Bologna University School of Law, and specialized in international commercial law at Tilburg University School of Law (Netherlands) under the supervision of Professor Franco Ferrari, the Center’s Director who at the time was professor at Tilburg University, was appointed Judge at Court of Bologna in 1999. In 2001, he was assigned to the Court of Rimini, where he mainly dealt with disputes regarding contracts, consumer law issues and professional malpractice torts. In 2007, he moved to the Court of Forlì, where he was able to focus on those very same areas of law. During his tenure there, he also rendered some of the most relevant decisions concerning the United Nations Convention on Contracts for the International Sales of Goods, many of which have been translated into various languages, including English. In 2006, Justice Cortesi was appointed to the Government Committee for the revision of the Italian Civil Code. In January 2016, Justice Cortesi was appointed to the Italian Supreme Court, thus becoming one of the second youngest justice ever appointed to the Italian Supreme Court.

NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law is glad to invite you to a webinar entitled “Text, Context, and Applicable Law: Arbitral Decision Making?” to take place on 15 November 2021, from noon to 1.30 pm (NY time).

As it commonly known, arbitrators often confront a text/context duality in interpreting contracts. The applicable law may impose the adoption of one approach over the other – e.g., New York-textualist versus California-contextualist. However, whether unimposed or even imposed, leeway remains, and an arbitrator’s unstated (and perhaps unconscious) philosophy of language is the hidden hand in the interpretive action. Divining “ordinary meaning,” and thereby “intention,” is the art and the frustration. In the webinar, it will be suggested that arbitrators should try to examine — openly — that hidden hand. Moreover, in doing so, they should consider whether approaches to the interpretation of texts in other disciplines, including the use of corpus linguistics (as promoted by Thomas Lee/Stephen Mouritsen), would improve arbitral decision-making.

The speakers will be Laurence Shore and Klaus Peter Berger.

For more info and a registration link, please see the attached flyer.

The Center for Transnational Litigation, Arbitration, and Commercial Law will be hosting a webinar on October 14, 2021 from 12:30 PM to 2:00 PM (New York Time) called, “Does a Right to a Physical Hearing Exist?”.

In September 2020, Giacomo Rojas Elgueta, James Hosking and Yasmine Lahlou, in collaboration with ICCA, launched the research project “Does a Right to a Physical Hearing Exist in International Arbitration?”  The project arose from the need for reliable, jurisdiction-specific, information relating to a legal issues arisen due to the increased use of remote arbitral hearings triggered by the COVID pandemic. On the occasion of this webinar, the three co-editors will discuss the challenges of putting together a project that ultimately resulted in the submission of 77 national reports, all based on a standard survey questionnaire and model response, the national reporters were provided  with. The three co-editors will also discuss the main take-aways of their research project.

Please see the attached flyer for more information.

Registration is required.

Professor Franco Ferrari, the Center’s Director, will participate in a hybrid conference to take place on Friday, October 1, 2021, in Coimbra on the occasion of the entry into force in Portugal of the United Nations Convention on Contracts for the International Sale of Goods (CISG). On that occasion, Professor Ferrari, an expert in all things CISG, will address when the CISG applies in the context of international arbitration. In his talk, Professor Ferrari will point out that the CISG’s application in arbitration is due to reasons very different from the leading to the CISG’s application in litigation, and that arbitrators need to become aware of this.

For more info on the event, please turn to this link.

On Tuesday, Sept. 21, 2021, from 11.00 am – 1.00 pm, Professor Franco Ferrari, the Center’s Director, will give a lecture addressing the applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods (“CISG”) in arbitration. On the occasion of the webinar, hosted by Bologna University School of Law, Professor Ferrari’s alma mater, he will show how and why in international arbitration, the CISG, but the same holds true for other uniform substantive law conventions as well, applies for reasons other than those leading to the CISG’s application before state courts. As he will show, the application of the CISG in arbitration depends on the applicable arbitration-specific private international law rule. If this rule designates the law of a Contracting State as the applicable law, the CISG will apply as part of the law of that State (provided that its internationality requirement, its rationae materiae requirement, and it ratione temporis requirement are met). In addition, the CISG may apply on  its own, i.e. independently of the law of any Contracting State, if the applicable arbitration-specific private international law rule allows the application of “rules of law”.

For more info and to register, please see the flyer.