Transnational Notes

This is to invite you on behalf of NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law to a webinar entitled “Introduction to International Arbitration in Africa” to take place on September 23, 20021, from 9.00 am – 10.15 (NY time).

This event, to be moderated by Mr. Domenico Di Pietro (GST LLP, London/Miami), will allow participants to get an idea of the status quo of international arbitration in Africa. The starting point will be an overview of the historical development of arbitration in Africa as well as the legal framework applicable in the various African countries to be analyzed by the two speakers, Ms. Ndanga Kamau (Ndanga Kamau Law, The Hague) and Professor Emilia Onyema (SOAS University of London). When addressing the legal framework, the speakers will also identify Model Law and non-Model Law jurisdictions on the African content and address the impact of OHADA and the New York Convention on arbitration in Africa. As part of their focus on the legal framework, the speakers will also analyze the institutional framework in the sense of the arbitral institutions operating on the African continent. The speakers will also address practical issues, such as the implications of choosing to seat an arbitration in an African jurisdiction, the importance of African arbitrators and counsel in international arbitrations with seats in Africa and outside Africa, and the attitudes of domestic courts vis-à-vis arbitration at both the pre-award and the post-award stages.

For more information, including short bios of the speakers see the brochure.

On 6 May 2021, at 12.30 pm NY time, Professor Franco Ferrari, the Center’s Director, will deliver a lecture on “Limits to Party Autonomy in International Commercial Arbitration”, based on a paper co-authored with Dr. Friedrich Rosenfeld to be published in the forthcoming Cambridge Compendium of International Commercial and Investment Arbitration, which Professor Ferrari is editing together with Professors Andrea Bjorklund (McGill) and Stefan Kröll (Bucerius). The event is co-hosted by and DIS40 (Young Arbitration Practitioners of the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) – German Arbitration Institute.

In his talk, Professor Ferrari will challenge the liberalist premise that international arbitration is a process between two rational parties who are at liberty to choose how to resolve their disputes by means of alternative dispute resolution. But he will do so without any intention to downplay the key role of party autonomy or to depart from the liberalist tradition. The point that will be made is simply that arbitration involves at least four potential stakeholders whose interests may overlap in some cases but diverge in others. And this entails limitations to party autonomy.

To register and receive the access code for the online meeting, send an email to germany@aia-arbit-40.org.

Professor Franco Ferrari, the Center’s Director, will give a talk entitled “Relevance of the Seat for International Commercial Arbitrations”. The talk, to be given on Monday, April 19^th, 2021, starting at 8.30 am NY time, and hosted by the Center for Alternative Dispute Resolution of Jindal Global Law School, will show that, despite statements to the contrary, the seat is important at all stages of an arbitration’s life-span. At the pre-award stage, the seat triggers the application of the arbitration regime in the very many States in which the arbitration regime is based on the territorial approach. The seat also determines where the arbitral award “was made”, which is essential for the post-award stage (both for set-aside and recognition and enforcement proceedings). As Professor Ferrari will show, from this it follows that in international arbitration choosing the seat is of paramount importance. Foregoing the choice of the seat means giving up an arbitration planning tool, for which there is no appropriate remedy.

Further information, including how to register, is available on the flyer.

The Center for Transnational Litigation, Arbitration, and Commercial law together with NYU’s International Arbitration Association will be hosting a webinar entitled “What parties really want: a general counsel’s view of arbitration.” The webinar will take place on 5 April 2021, from 6.30 pm. to 7.45 pm.

A lot has been written about the presumed advantages of arbitration. This webinar will focus on whether these writings reflect the view general counsel has of arbitration and its advantages over litigation, and whether there are specific arbitration related issues of particular interest to general counsel.

The speakers will be Edgar Martinez and John Fellas. Franco Ferrari will moderate the event.

Edgar Martinez is the General Counsel of Japan Tobacco International Mexico, which commercializes the Camel, Winston and LD tobacco brands in the Country. He has been listed by the Legal 500 as within the top 100 General Counsels in Mexico. Edgar supports Legal Directors of other jurisdictions within the Company in arbitration matters, including the Global General Counsel.  He is a part time professor at his alma mater, Panamericana University – Mexico City, where he teaches Arbitration and Private International Law. Edgar has experience as counsel in arbitration and arbitrator. He has an L.L.M. in International Commercial Arbitration Law by Stockholm’s University and has been admitted to the Paris bar.

John Fellas is a full time arbitrator at Fellas Arbitration and an adjunct professor at New York University School of Law. He has over three decades of experience in international dispute resolution, and has acted as counsel and has served as co-arbitrator, chair or sole arbitrator in arbitrations all over the world, under all the major arbitration rules, and across a range of sectors. John is recognized as a leading international arbitrator by all the major legal directories including Chambers USA where he is ranked as “one of the best—his reputation is phenomenal and deserved.” He received a B.A. (Hons.) in law from the University of Durham, and both an LL.M. and an S.J.D. from Harvard Law School. 

Franco Ferrari is a Professor of Law and Director of Centre for Transnational Litigation, Arbitration, and Commercial Law at the NYU School of Law. Prior to joining NYU, he was Professor of International Law at Verona University, and Professor of Comparative Law at Tilburg University in the Netherlands and the University of Bologna in Italy. Franco Ferrari has published more than 300 law review articles and book chapters in various languages and 35 books in the areas of international commercial law, conflict of laws, comparative law, and international commercial arbitration. He is 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 for the 4 volume Encyclopedia of Private International Law. He also acts as an international arbitrator both in international commercial arbitrations and investment arbitrations.

Participation in the webinar is free, but it requires registration.

On 10 February 2021, from 14:30 to 16:00 (Rome, Italy time), Professor Ferrari, the Center’s Director, will give a talk regarding the seller’s liability for violating third party intellectual property rights under the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The issue is addressed in CISG Article 42 and over the years has led to divergent case law. Professor Ferrari will give his talk on the occasion of a conference entitled “Virus, Vaccines and Arbitration Clauses: Orderly Circulation is Key” hosted by the Italian Forum for Arbitration and ADR, the Milan Chamber of Commerce, and the Italian Association for Arbitration (AIA). The conference will address the issues raised by the 28^th Annual Willem C. Vis International Commercial Arbitration Moot.

 To register, please use the link to be found on the conference flyer.

The Center is glad to announce two webinars on “The autonomous v nationalistic interpretation of the 1958 New York Convention” to be hosted by the Center in collaboration with Oslo University. The webinars will be held on 21 and 25 January 2021; they will both start at noon and end at 1.30 pm Paris time.

As it is known, the 1958 New York Convention owes much of its success to being an international convention setting forth uniform rules. Its uniform recognition and enforcement regime not only lowers the parties’ costs of identifying under which circumstances an award will be recognized and enforced across jurisdictions; it also ensures that States cannot justify the failure to comply with their obligations under the New York Convention by reference to domestic law. Still, the courts of different contracting States apply the Convention differently. Oftentimes, this is due to the erroneous understanding of concepts employed by the drafters of the Convention. On the occasion of the two webinars, the presenters will examine whether a given concept must be interpreted autonomously rather than nationalistically, in light of domestic law, and, where this is the case, will attempt to define these autonomous concepts. The presentations will also identify which domestic law(s) to apply, to the extent that recourse to domestic law(s) is required.

On 21 January, the speakers (Burkhard Hess, Dennis Solomon, Winnie Ma and I) will address the autonomous interpretation in general, the notion of “arbitral award”, the arbitration agreement and issues of scope, as well as arbitrability.

On 25 January, the speakers (Francesca Ragno, Friedrich Rosenfeld, Giuditta Cordero-Moss, Lucas Lim) will tackle incapacity, the effect of deviations from the agreed upon procedure, the notion of “public policy’, and the procedure to enforce an arbitral award.

To register and for more info, please see the webinar’s flyer.

NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law and the Dubai International Arbitration Centre host a webinar on November 25, 2020 at 9:00 AM to 10:30 AM (New York time).

This event will discuss due process as a limit to discretion in international arbitration from a broader, international perspective, from a regional (Middle Eastern) perspective as well as from the perspective of the UAE. The event will address what due process issues have arisen and how courts in the UAE as well as the DIAC have dealt with them, thus allowing participants to get an idea of how to combat the increasing “due process paranoia”.

Program:

• Opening Remarks: Ahmed Bin Hezeem, DIAC, Dubai

• Introductory Remarks: Franco Ferrari, NYU

• Due Process as a Limit to Discretion in Arbitration; A Global Perspective, Friedrich

Rosenfeld, NYU Paris, Hanefeld, Hamburg

• Due Process as a Limit to Discretion in Arbitration; The Perspective of the Middle

East, Nayla Comair-Obeid & Zeina Obeid, Obeid Law firm, Beirut

• Due Process as a Limit to Discretion in Arbitration; The Perspective of the UAE and

DIAC, Gordon Blanke, Blanke Arbitration LLC., Dubai

• Closing Remarks, Rashid Shahin, DIAC

For the full program and further information, please see the attached flyer (PDF: 1.41 MB).

To attend, please submit the webinar registration here.

On 19 November 2020, from 9:00 AM to 10:15 AM (NY Time), NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law will host a webinar entitled “The Corruption Virus in Arbitration”.

As it is known, over the years both international and domestic lawmakers have worked together to combat corrupt activities and identify corruption as a matter of transnational public policy. Unsurprisingly, also in the context of international arbitration, corruption issues come up quite frequently. Arbitrators deal with this in various ways, often relying on general principles or/of transnational rules, in some cases without regard to a specific national source of law. In many cases they use ‘red flags’ to identify potential corruption.

Is this approach another example of ‘the arbitral legal order’ incorporating and reflecting the trends stemming from national legal systems? What standard is used when applying the red flag methodology, given that it was developed by business organizations, international bodies, non-governmental organizations, and academic institutions? How do those international or transnational standards factor in the applicable lex contractus, the procedural lex arbitri or the foreign lois de police? And does a disregard of these so-called red flags and ignoring potential corruption count as a violation of international public policy? And would such a violation justify a de novo review of the facts by national courts? Are these questions answered differently based on legal background, and, thus, in a continental law context as opposed to a common law one?

These issues will be addressed by the panelists, Jennifer Lim, Jeremy Sharpe, and Kevin Davis.

The event will be moderated by Dirk De Meulemeester.

To attend, please submit the webinar registration here.

Professor Franco Ferrari, the Center’s Executive Director, was invited to give the keynote address entitled “The Importance of the Seat of Arbitration” on the occasion of the opening of the Hamburg International Arbitration Center, a newly created facility aiming at promoting the attractiveness of Hamburg as a seat of arbitration. The Center will function as a common facility for the many arbitration activities already taking place in Hamburg. The online event, to be opened by the mayor of Hamburg, will also include a talk on “Hamburg as a legal hub” (in German) and a panel discussion on “Arbitration in Hamburg from different perspectives” (in English) with the participation inter alia of Luíza Kömel, the Deputy Secretary General of CAM-CCBC – Centro de Arbitragem e Mediação, and Professor Stefan Kröll, a former scholar-in-residence at the Center. The event will be moderated by Johanna Büstgens (Hamburg) and Tim Rauschning).

The event will be 17 November 2020, starting at 5 pm Hamburg time.

The event is free, but registration is required. To register, use this link or send an email to Ms. Jessy Wallis by 13 November 2020 at the latest.

NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law and the Russian Arbitration Center at the Russian Institute of Modern Arbitration will host a webinar on November 12, 2020 from 9:30 AM to 10:45 AM (NY Time).

This event will discuss due process as a limit to discretion in international arbitration both from a broader, international perspective and from the point of view of the Russian legal system as well as from the point of view of an arbitral institution.

Panelists include Friedrich Rosenfeld, Mikhail Batsura, Natalia Gulyaeva, and Yulia Mullina.

The panel is moderated by Franco Ferrari.

To attend, please submit the webinar registration here.

The video for Professor Franco Ferrari’s talk, titled, “How International Should International Arbitration Be?”, given as the keynote address on the occasion of the 10th Coimbra International Arbitration Meeting organized by professors Mariana França Gouveia and Catarina Monteiro Pires is now available for viewing.

X EIAC Sessao 1730 from NYU School of Law on Vimeo.

On 16 October 2020, the 5^th Annual Conference on “The Future of the Commercial Contract in Scholarship and Law Reform” organized by the London Centre for Commercial and Financial Law will take place. The London Centre for Commercial and Financial Law was established in 2019 and is directed by Professor Mads Andenas QC, while Dr Maren Heidemann is the Centre’s principal academic convenor and project leader. The Centre hosts academic events and legal research projects focusing on commercial and financial law. It continues the work of the Centre for Corporate and Financial Law at the Institute of Advanced Legal Studies, School of Advanced Studies, University of London, UK.

This specific conference builds on research undertaken at the University of London (Institute of Advanced Legal Studies, School of

Advanced Studies) from 2016-2019, and will explore topics in commercial contract law with a focus on sustainability policies, broadly conceived. Aspects include legislative challenges as well as international dispute settlement.

This year’s keynote speaker will be Professor Franco Ferrari, the Center’s Director. Professor Ferrari is well known for his expertise in international commercial law – including arbitration – and for his commitment to uniform law such as the 1980 Vienna Convention on international commercial contracts (CISG) as well as for his work for UNCITRAL. In addition to Professor Ferrari, there will be panelists coming from all over the world and bringing comparative viewpoints to the table.

The conference is organized in four panels one of which traditionally focusses on commercial arbitration. Another focus is once again on ethical aspects of commercial contract law such as good faith and co-operation duties as well as green finance and sustainability in the digital economy.

A more detailed program is attached (PDF: 396 KB).

The Center is glad to be able to announce that this coming Wednesday, 14 October 2020, from 9.00 am to 11.00 am, it will host – together with SciencesPo Law School – the 1^st edition of the Intergenerational Arbitration Symposium., the overall topic of which will be “Procedural Issues in International Arbitration”.

The Symposium 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, two NYU graduates (Jack Davies and Lucas Lim) and two graduates from SciencesPo Law School (Rafaela M. da Magalhaes and Jack Biggs) will present their papers, and Professors Giuditta Cordero-Moss and Pierre Tercier will act as discussants. The event will be moderated by Karolina Rozycka and Alexandre Senegacnik.

To register, please follow this link. Registered participants will receive a link per email that allows them to participate.

More information on the Intergenerational Arbitration Symposium (PDF: 1.08 MB)

To mark the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law and UNCITRAL, the United Nations Commission on International Trade Law, hosted a series of webinars to assess the CISG’s impact over the last 40 years.

The webinar on September 15, 2020, analyzed the CISG’s relationship with other instruments relevant in the international commercial law context, in light also of the recent finalisation of the HCCH – UNCITRAL – Unidroit Legal Guide to Uniform Legal Instruments in the Area of International Commercial Contracts (with a focus on sales).

The recording is now available for viewing.

On 1 October 2020, the 10th Prague Investment Treaty Arbitration Conference will take place. Due to the health situation, this iteration will be entirely online. The live stream will start at 3:30 pm CET and last until 7:00 pm CET. A keynote address on “The use and misuse of bifurcation in investment arbitration proceedings“ will be followed by three panel discussions, relating to “Attribution of harm”, “COVID related claims”, and “Denial of justice” respectively. Professor Ferrari, who just co-edited a book entitled “International Investment Arbitration in a nutshell”, will participate in the last panel.

To attend, please register for this event.

10th Investment Treaty Arbitration Conference (PDF: 80 KB)

To mark the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law and UNCITRAL, the United Nations Commission on International Trade Law, are hosting a series of webinars to both assess the CISG’s impact over the last 40 years.

This webinar will analyze the CISG’s relationship with other instrument relevant in the international commercial law context, in light also of the recent finalisation of the HCCH – UNCITRAL – Unidroit Legal Guide to Uniform Legal Instruments in the Area of International Commercial Contracts (with a focus on sales). The webinar will be held on 15 September 2020, 7:15 am – 8:30 am (New York time).

Panelists include Francesca Ragno, Giuditta Cordero-Moss, and Marco Torsello.

The panel is moderated by Franco Ferrari and Luca Castellani. 

To attend, please submit the webinar registration here.

To mark the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law and UNCITRAL, the United Nations Commission on International Trade Law, are hosting a series of webinars to both assess the CISG’s impact over the last 40 years and to identify questions that are still open.

This webinar will analyze to what extent the CISG’s has had an impact on national legal systems. The webinar will be held on 11 September, from 7:15 am-9:00 am (New York Time).

Panelists include Lisa Spagnolo, Stefan Kröll, Gustavo Cerqueira, Peter Arnt Nielsen, and Clayton P. Gillette.

The panel is moderated by Franco Ferrari and Luca Castellani. 

To attend, please submit the webinar registration here.

The Center hosts, together with FGV Law, a webinar on “Transparency in International Arbitration: Publication of arbitral awards versus data protection” on September 24, 2020 at 12:45 PM to 2:15 PM ET (New York Time).

In recent years, many arbitral institutions across the world have been adopting new rules regarding, on one hand, the publication of arbitral awards and, on the other hand, data protection. Such topics are commonly intertwined and relate to a new era of transparency in international arbitration. To some extent, the call for more transparency in international arbitration may find limits and constraints in the regulation of data protection across countries. The issue of applicable law to data protection may also play a major role and limit the new policies put in place by arbitral institutions. A single arbitration may be subject to data protection laws from different countries, with different standards and requirements. Is there a role to be played by soft law? This panel will focus on this ongoing debate, with particular attention to the perspective of the arbitral institutions.

Panelists include Eleonora Coelho, Christian Leathley, Daniel Levy, and Anna Katharina Scheffer da Silveira. The panel is moderated by Franco Ferrari.  

To attend, please submit the webinar registration here.

The Center hosts, together with FGV Law, a webinar on “The Applicable Law to the Merits in International Arbitration and the Role of the Seat: Hardship, force majeure, and frustration” on September 16, 2020 at 12:45 PM to 2:15 PM ET (New York Time).

The idea that arbitrators would be bound by the law of the seat with respect to the merits of the case is no longer prevailing in international arbitration. For the past few decades, it has been well settled that international arbitrators have no lex fori and, within an autonomous conflict rules standpoint, enjoy relative discretion to determine the applicable law (respecting parties’ choice, if any) and finally decide on the merits of the arbitration, with fewer restrictions or limitations than courts. In the era after the COVID-10 pandemic, topics relating to the law applicable to the merits pose new challenges with respect to some specific legal grounds, such as hardship, force majeure, and frustration used to justify non-compliance with contractual obligations. More than ever, the parties’ choice and arbitrators’ determination of the applicable law to the merits will play a major role in defining the outcome of the dispute, as national laws differ significantly on such topics. The requirements and thresholds to avoid a specific obligation or even the contract in its entirety under such legal grounds are rather different depending on the applicable law. Absent parties’ choice, the arbitrators’ determination of the applicable law will also play a major role in determining the outcome of the arbitration. This panel will provide an overview on these new challenges and try to tackle some of the questions that may arise.

Panelists include Giuditta Cordero-Moss, Andre Abbud, Niccolò Landi, and Marco Torsello. The panel is moderated by Franco Ferrari.  

To attend, please submit the webinar registration here.

The Center hosts, together with FGV Law, a webinar on “International versus Domestic Standards Under the New York Convention: Due process and public policy limitations for the production of evidence in online arbitrations” on September 10, 2020 at 12:45 PM to 2:00 PM ET (New York Time).

Parties frequently invoke due process violations in order to resist recognition and enforcement of foreign arbitral awards under the New York Convention. While the New York Convention does not expressly use the term “due process,” various grounds for refusal of recognition and enforcement can be seen as a manifestation of due process protections. Most importantly, Article V (1) lit. b of the New York Convention allows for refusal of recognition and enforcement if a party was unable to present its case. Article V (1) lit. d of the New York Convention offers a ground for refusal of recognition and enforcement if the proceedings were not in line with the parties’ agreement or, failing such agreement, the law of the seat. And under Article V (2) lit. b of the New York Convention, a court can refuse to recognize and enforce an arbitral award if enforcement would be contrary to the public policy of the State where recognition and enforcement are sought.

Among other fields of application, these due process limitations are particularly important for the taking of evidence. In this respect, new challenges have arisen in the wake of the COVID-19 pandemic. Arbitrators, parties, and arbitral institutions have been confronted with intricate questions as to whether and how the taking of evidence can occur online, without any physical meeting. Are arbitrators entitled to schedule a video hearing, even against the will of one of the parties? How do due process guarantees limit the conduct of such hearings? This panel will address these questions. After a discussion of the applicable normative framework, panelists will discuss best practices with respect to the taking of evidence in online arbitrations.

Panelists include Rafael Alves, Yasmine Lahlou, and Friedrich Rosenfeld. The panel is moderated by Franco Ferrari.  

To attend, please submit the webinar registration here.