Transnational Notes

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.

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.