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.

Professor Franco Ferrari, the Center’s Director, will give a talk in the context of the Coimbra International Arbitration Meeting to take place online from 8 to 10 October 2020. The talk entitled “How International Should International Arbitration Be?” is scheduled to take place on the second day of the three-day event, which will also include a workshop on “New Paradigm in International Arbitration in Times of Covid: Wishful Thinking, Necessity or Mere Survival?”, a round table on “Arbitration During the Pandemic: Solutions, Issues and Balance”, as well as sessions on “Innovation and Alternative Dispute Resolution”, “Arbitration and Industry – From Gogreen to Digital Transformation”, and “Hot Topics”.

Coimbra International Arbitration Meeting (JPEG: 51 KB)

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)

Professor Franco Ferrari, the Center’s Director, has just edited a book entitled “Due Process as a Limit to Discretion in International Commercial Arbitration”, co-edited with Friedrich Rosenfeld, a Global Adjunct Professor of Law at NYU Law in Paris and a lecturer for investment arbitration at the Bucerius Law School in Hamburg, and Dietmar Czernich, an attorney and Adjunct Professor based in Vienna. The book offers a comprehensive study on dueprocess as a limit to arbitral discretion useful to anybody involved in international arbitration. Based on 19 country reports (authored by Julio Cesar Rivera (h), Rafael Alves, Andrea Bjorklund & Benjamin Jarvis, Zheng Sophia Tang, Soterios Loizou, Caroline Kleiner, Dr. Friedrich Rosenfeld, Jennifer Lim & Charlotte Lelong, Aditya Singh & Zehaan Trivedi, Francesca Ragno, Koji Takahashi, Nayla Comair-Obeid & Zeina Obeid, Jacob van de Velden & Abdel Zirar, Giuditta Cordero-Moss, Mikhail Batsura, Jonathan Lim, Simon Hohler, Hattie Middleditch, Ina Popova & Duncan Pickard) and a detailed general report authored by the three editors, the book explores how courts in major arbitration jurisdictions apply due process guarantees when performing their post-award review.

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.

Professor Franco Ferrari, the Center’s Director, is known for his work on the United Nations Convention on Contracts for the International Sale of Goods (CISG), one of the most successful uniform contract law instruments. In his most recent paper, published in a book edited by Professors Iacyr de Aguilar Vieira and Gustavo Cerqueira  to celebrate the CISG’s 40^th anniversary and entitled “La Convention de Vienne en Amérique/The Vienna Convention in America”, Professor Ferrari identifies two trends in recent case law interpreting the CISG: the homeward trend and the outward trend, both of which are disruptive of the goal behind the CISG. The paper analyses the trends and suggests how to tackle them to promote a uniform application of the CISG.

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.

Professor Pedro J. Martinez-Fraga, a leading practitioner in the field of investor-State international arbitration, international commercial arbitration, and transnational litigation, the co-leader of Bryan Cave Leighton Paisner LLP’s International Arbitration Team, and Adjunct Professor at NYU School of Law, has just published the second edition of his acclaimed book entitled “The American Influence on International Commercial Arbitration” with Cambridge University Press. As Professor Jose Alvarez, NYU’s Herbert and Rose Rubin Professor of International Law, states, “Pedro J. Martinez-Fraga begins his masterful work on the United States’ influence on international commercial arbitration with the original vision of arbitration suggested by Goya’s painting ‘Duel with Clubs’ in the Museo del Prado. The idea that arbitration is as blunt an instrument for ‘dispute settlement’ as two men using deadly force against each other – admittedly efficient, expedient, and final – has, he says, been eclipsed by the recognition that arbitration has much in common with judicial proceedings. His book is an argument, driven by a careful examination of history, case law, and statute, that the actions and views of common law courts has had much to do with this change. His is a general (and rare) defense of what some would decry, namely the ‘Americanization’ of international arbitration. Readers should welcome this new up-to-date edition. It continues to be a valuable contribution to a healthy, ongoing debate.’’ According to Gary Born, the chair of WilmerHale’s International Arbitration Practice Group, the book contains a “thoughtful and provocative analysis of a very timely subject – replete with keen observations and original analysis.”

The book traces the contours of select US common law doctrinal developments concerning international commercial arbitration. The new edition supplements the foundational work contained in the first edition in order to produce a broader and deeper work. Professor Martinez-Fraga explores how the US common law may help bridge cross-cultural legal differences by focusing on the need to address these contrasting approaches through the nomenclature and goal of securing equality between party-autonomy and arbitrator discretion in international commercial arbitration. The book thus focuses on the common law development of arbitrator immunity, as well as the precepts of party-initiative and –autonomy forming part of the US common law discovery rubric that may contribute to promoting expediency, efficiency and transparency in international commercial arbitration proceedings. It does so by carefully analyzing, among other things, the International Bar Association (IBA) Rules on Evidence Gathering, the Prague Rules, and the role of 28 USC. §1782 in international arbitration.

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.

The Center hosts, together with the Singapore International Arbitration Centre (SIAC) and NYIAC, a webinar on the “Coronavirus and Exemption of Liability” on Friday, June 5, 2020 at 8:00 AM to 9:15 AM ET (New York Time).

COVID-19 has caused severe disruptions to international transactions and projects and has led many to seek relief from their contractual obligations. The webinar will address the following issues: Do international instruments such as the UNIDROIT Principles of International Commercial Contracts and the UN Convention on Contracts for the International Sale of Goods (CISG) provide relief for parties affected by COVID-19?

Force majeure certificates have been requested by parties affected by COVID-19 and issued by chambers of commerce in various countries. Do such certificates have any value in an arbitral proceeding?

How are the principles of force majeure and economic hardship treated under various legal systems and under public international law?

Panelists include Ms. Chiann Bao, Mr. Nigel Blackaby QC, Professor Franco Ferrari, and Dr. Jean Ho. The panel is moderated by Ms. Lucy Reed.

To attend, please submit the webinar registration information here.

Professor Ferrari, the Center’s Director, has just published with Oxford University Press the second edition of an article-by-article commentary on the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, of which he is also a co-author.

As Professor Ferrari writes in the Preface to the book authored by an international group of academics and practitioners, parties to any transaction require predictability and legal certainty, as it is the predictability and legal certainty that allow the parties to assess the legal and economic risks involved in the transaction and, thus, allows them to decide whether to enter into the transaction at all. This need is felt even more strongly where the transaction is not a purely domestic one but is linked to more than one country. To reach the desired predictability and legal certainty in an international context, various approaches have been resorted to. The drafting of uniform rules of private international law is one such approach. It aims at guaranteeing that courts in the States where such uniform rules are in force will apply the same substantive rules no matter what court a dispute is brought before, thus reducing transactions costs by requiring a party to make provision for one law only. The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) sets forth such a set of uniform private international law rules for (most of) the member states of the EU. The book provides students and practitioners with a concise and instructive article-by-article commentary which explains the underlying concepts and suggests solutions for problems that have arisen or may arise in the application of the Regulation.

The Center hosts, in conjunction with the Commercial Law Centre at Harris Manchester College, Oxford, the Centre for International Dispute Resolution at Bucerius Law School, the National University of Singapore, and the Centre for Commercial Law Studies at Queen Mary University of London a webinar entitled “Arbitration online: law and practice”. The event will take place on 20 May 2020, from 7.00 am. – 9.00 am (NY time).

The event will address the question of whether arbitration can ‘go online’ while preserving its promise of reliable and enforceable results. In this online event international arbitration scholars and practitioners will discuss the most important legal challenges and best practice responses associated with the delivery of arbitration online in the COVID-19 crisis and beyond. The event will address, among other issues, the validity and enforceability of the arbitral award; the right to be heard and ordre public: online hearings as “hearings” in legal terms; how to assure consent of the parties to online proceedings; the arbitral tribunals’ powers to order online hearings absent party consent; specific online “guerrilla tactics” and possible sanctions; the taking evidence online; best online practices to safeguard the arbitration procedure and the award.

You can register here: https://law-oxford.zoom.us/webinar/register/WN_8MEHAFyZQImzXj1muaGrZQ

Please note that the event will be recorded and proceedings may be made publicly available after the event. By registering you consent to this.