Transnational Notes

Cambridge University Press has just published the 3 volume Cambridge Compendium of International Commercial and Investment Arbitration, edited by Professor Franco Ferrari, the Center’s Director, together with Professors Andrea Bjorklund (McGill University School of Law) and Stefan Kröll (Bucerius Law School). The Compendium contains contributions for most of the foundational principles and concepts underlying international arbitration. Each contribution takes a holistic view of international arbitration, as the contributions tackle core concepts from both a commercial and an investment arbitration perspective, focusing on the fundamental issues underlying the various topics rather than on the solutions adopted in any particular jurisdiction, thus making the Compendium a truly cross-border, transnational resource. This innovative approach will allow readers to identify the commonalities as well as the differences between commercial and investment arbitration, whether and where cross-fertilization has taken place and what consequences it can have. This approach allows the Compendium to be a tool in promoting the creation of a culture of international arbitration that considers commercial arbitration and investment arbitration as part of a whole but with certain distinct features particular to each.

The Compendium is organized in 14 parts, namely Foundations, Public Law Questions Relating to Arbitration, Stakeholders in Arbitration, Applicable Law, Jurisdiction of the Arbitrator, the Arbitral Tribunal, Procedural Questions in Arbitration, Role of State Courts in Arbitration, Awards, Post Award Issues, Legal Concepts, Areas of Concern, Arbitration and Related Fields, and EU Law and Arbitration.

The contributors of the 70 papers composing the Compendium are, in the order of publication of their contribution, Florian Grisel, Emmanuel Gaillard, Franco Ferrari, Friedrich Rosenfeld, Fabien Gélinas, Andrea K. Bjorklund, Petra Butler, Marc Bungenbergl, August Reinisch, Giuditta Cordero-Moss, Daniel Behn, Christopher R. Drahozal, Victoria Shannon Sahani, Stephan Wilske, Laura Bräuninge, Andrea Carlevaris, Luke Nottage, Chester Brown, Luca G. Radicati di Brozolo, Christophe Bondy, Lukas Vanhonnaeker, Shahla Ali, Sabine Katrin Neuhaus, Monique Sasson, Jonathan Brosseau, Christophe Seraglini, Julien Fouret, Stavros Brekoulakis, Vladimir Pavić, Stefan Kröll, Elian Keller, John J. Barceló III, Alan Scott Rau, Jan Paulsson, Thilo Kerkhoff, R. Doak Bishop, Caline Mouawad, Jessica Beess und Chrostin, Kun Fan, Jacomijn van Haersolte-van Hof, Mathew Stone, Sébastien Besson, S. I. Strong, Maxi Scherer, Dharshini Prasad, Dina Prokic, Chiara Giorgetti, Saud Aldawsari, D. Brian King, Elliot Friedman, Tibor Várady, Christopher Kee, Gloria Alvarez, David Holloway, Christopher Boog, N. Jansen Calamita, Dafina Atanasova, Edna Sussman, Frédéric Bachand, Patricia Shaughnessy, Linda J. Silberman, Robert U. Hess, Geneviève Saumier, Francesca Ragno, George A. Bermann, Mark Feldman, Laurence Boisson de Chazournes, Elise Ruggeri Abonnat, Diego P. Fernández Arroyo, Alexandre Senegacnik, Stephan W. Schill, Susan D. Franck, Michael Waibel, Gerhard Wagner, Ronald A. Brand, Catherine Kessedjian, Ursula Kriebaum, Richard Happ, Sebastian Wuschka

Apart from having edited the Compendium, Professor Franco Ferrari co-authored two contributions, entitled “Limitations to Party Autonomy in International Arbitration” (pp. 47-81), and “Applicable Law in Commercial Arbitration” (pp. 482-511) respectively. For more information, please see the Contents pages taken from the Compendium.

The Center is glad to announce the publication of the book entitled “Recognition and Enforcement of Foreign Arbitral Awards: A Concise Guide to the New York Convention’s Uniform Regime”, authored by the Center’s Director, Professor Franco Ferrari, together with Dr. Friedrich Rosenfeld, Global Adjunct Professor at NYU Paris and Partner at the Hamburg based law firm Hanefeld, and Professor Charles T. Kotuby, Professor of Practice and Executive Director of the Center for International Legal Education at the University of Pittsburgh.

The book analyses case law from major arbitration jurisdictions in view of examining the New York Convention’s scope of application, the duty to recognize and enforce arbitration agreements and arbitral awards as well as its limitations, the grounds for refusal related to jurisdiction, the grounds for refusal related to proper notice and the ability to present one’s case, the grounds for refusal related to procedure, the grounds for refusal related to the award’s status under the #law applicable to it, as well as the grounds for refusal related to public policy, and the procedure and formal requirements for recognition.

Combining insight from arbitration practice with perspectives from private international law, the book underlines the importance of the Convention being a treaty of international law, arguing that this entails a requirement to autonomously interpret the key concepts it relies on. However, the book also shows where municipal laws are relevant and discusses the private international law principles through which these instances can be identified.

Addressing one of the core treaties of international arbitration, this book is a useful reading for practitioners and judges alike.

For more info, please click here.

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.

Professor Franco Ferrari, the Director of the Center, and Professor Marco Torsello, professor of law at Verona University School of Law and Global Professor of Law (at NYU Paris), have just published the third edition of their book on the 1980 United Nations Convention on Contracts for the International Sale of Goods. The Convention, which covers more than 3/4 of world trade, is in force in 95 States, including the United States and its most important trading partners. The book, which is part of West’s Nutshell series and is aimed at both practitioners and scholars, covers the Convention’s basic rules one should be aware of, so as to avoid surprises when doing business with parties having their place of business in other countries. For more information, please click here.

The Center is glad to be able to announce that on 11 July 2022, Professor Franco Ferrari, the Center’s Director, will give the opening speech on the occasion of the very first NOVA Summer School on International Arbitration, which will take place in person from 11-18 July 2022 in Lisbon. In his speech, entitled “national international commercial arbitration”, Professor Ferrari will

elaborate on his view, expressed in various papers, that it is national law that confers juridicity to arbitration, i.e., “where the source of [the arbitrators’] power and the legal nature of the process and of the ensuing decision stem from” (Gaillard).

Professor Ferrari joins a stellar group of academics and practitioners involved in the Summer School, namely Gustavo Fernandes, Joana Galvão Teles, Lauro Gama Jr, Elena Gutiérrez García de Cortázar , José-Miguel Júdice,, Jan Kleinheisterkamp  Fernando Mantilla-Serrano, André Marini, Sofia Martins, Pedro Metello de Nápoles, André Pereira da Fonseca, Georgios Petrochilos QC, Ina Popova, Ashique Rahman, Mélanie Riofrio Piché, Catherine Rogers, Eduardo Silva-Romero, Patricia Saiz, Luís Heleno Terrinha, Pacome Ziegler, and Gary Born, who will give the closing speech.

For the full program, see here.

On 23 Jun 2022, the European Commission published the outcome of the selection process for arbitrators and trade and sustainable development (TSD) experts in bilateral disputes under the European Union’s trade agreements with third countries. The Center is delighted to be able to announce that Professor Franco Ferrari, its Director, was named as an individual suitable for appointment as arbitrator in the above setting.

By way of background: in December 2020, the European Commission called for applications in connection with the renewal of the pool of arbitrators and the separate pool of trade and sustainable development (TSD) experts for dispute settlement panels under trade agreements to which the EU is a party. A selection panel of experienced international judges and academics examined the candidates to confirm their suitability for appointment.

Following the above step, the Commission decided to draw up its lists of individuals suitable for appointment. The Commission will draw on the lists to make proposals for the appointment of arbitrators and TSD experts in a specific case or for pre-agreed lists (rosters) under the relevant bilateral agreements with third countries. The Commission notes that inclusion in the list of suitable individuals does not guarantee the appointment for any specific case or roster in the future.

For the complete list, see here.

Professor Franco Ferrari, the Center’s Director, has just published a paper entitled “National International Commercial Arbitration” in 32 American Review of International Arbitration 439 (2022). In the paper, Professor Ferrari elaborates on the view, expressed in various earlier papers (including in Plures Leges Faciunt Arbitrum, 37 Arbitration International 579 (2021) – available here: https://academic.oup.com/arbitration/article/37/3/579/6246135?login=true; Lex Facit Arbitrum 2.0, Diritto del commercio internazionale 915 (2021)) that it is national law that confers juridicity to arbitration, i.e., “where the source of [the arbitrators’] power and the legal nature of the process and of the ensuing decision stem from” (Gaillard). This new paper, which is a review article of International Commercial Arbitration. A Handbook edited by Stephan Balthasar, relies on the Handbook’s various chapters (addressing the New York Convention as well as arbitration law in Austria, Belgium, Brazil, China, England and Wales, France, Germany, Hong Kong, India, the Netherlands, the Russian Federation, Singapore, Spain, Sweden, Switzerland, and the United States) to corroborate the findings of the earlier papers. At the same time, it allows the reader to identify the many areas in which national law is relevant in the international commercial arbitration context.

Professor Franco Ferrari, the Center’s Director, and a renowned expert on the United Nations Convention on Contracts for the International Sale of Goods (CISG), has just published a paper focusing on the interpretation of the CISG in which he identifies two interpretative trends, both of which are disruptive of the uniformity aimed at by the drafters of the CISG; the homeward trend and the outward trend. As for the homeward trend, it has been defined as the tendency of interpreters of the CISG to read the expressions used in the CISG in light of the domestic law in which the interpreter was trained. On the other hand, the “outward trend”, an expression coined by Professor Ferrari in earlier writings, is defined by Professor Ferrari as the “the tendency of those interpreting a uniform law instrument to project foreign law onto the provisions of an international instrument where these provisions refer to legal concepts unknown in the system in which the interpreter is trained”. As Professor Ferrari points out in his paper, both trends go against the very idea behind the creation of a uniform sales law and must therefore be combatted. In his paper, Professor Ferrari makes a suggestion on how to do so successfully.

The paper is entitled Tendencia nacionalista vs tendencia importadora en la jurisprudencia de la CVIM, and is published in The Transnational Sales Contract. 40 years influence on the CISG on National Jurisdictions edited by F. Benatti et al., Milan, 2022, p. 199-217.

Professor Franco Ferrari, the Center’s Director, has just published a paper on the importance of the seat of arbitration entitled “Lex facit arbitrum 2.0” in the Italian peer reviewed law journal Diritto del commercio internazionale. The paper, which builds of earlier papers authored by Professor Ferrari, shows what implications the choice of the seat of arbitration has over the course of an arbitration’s life-cycle. As the paper shows, the choice of the arbitral seat identifies the lex loci arbitri and, thus, the applicable arbitration framework. As Professor Ferrari shows, this does not mean that an arbitration will only be governed by the national arbitration regime of the seat. Different national arbitration regimes may be – and generally are – applicable to any given arbitration.

Professor Franco Ferrari, the Center’s Director, has just published a paper entitled “Plures leges faciunt arbitrum” in issue 3/2021 of Arbitration International.

In his paper, Professor Ferrari asserts that in international arbitration the lex loci arbitri has not lost its importance, which is not to say that it operates as the exclusive source of the arbitral process. While it is still the law of the seat that primarily furnishes arbitration its legal framework, in the form of ground rules in accordance with which arbitral activity may validly take place at the arbitral seat, it is not the only law imposing itself upon an international arbitration. In other words, the regulatory sovereignty of the State of the seat of arbitration is not necessarily the only one to be triggered during the different stages of an arbitration’s life-cycle. This is due to the fact that this regulatory sovereignty encounters both subject-matter limitations and territorial limitations, and, therefore, depending on what matter is to be addressed – and when and by whom – may call into play the regulatory sovereignty of States other than that of the seat. Thus, plures leges faciunt arbitrum.

The paper can be downloaded here.

Professor Franco Ferrari, the Center’s Director, has just published an article in Diritto del commercio internazionale, a peer reviewed Italian law journal. In his article, Professor Ferrari, one of the leading academics in the field of unification of law in general, and the United Nations Convention on Contracts for the International Sale of Goods (CISG) in particular, argues that in the arbitration context, uniform substantive law conventions apply for reasons that do not compare to those that lead to their application in litigation. In arbitration, their application will depend on the autonomous arbitration-specific conflict of laws rules. If these rules designate the law of a contracting State as the law applicable, the uniform substantive law conventions apply as part of the law of that State. But the conventions may also apply on their own, independently of the law of any contracting State, if the applicable arbitration-specific conflict of laws rule allows for the application of “rules of law”.

Professor Franco Ferrari, the Center’s Director, and Dr. Friedrich Rosenfeld, Global Adjunct Professor at NYU Law in Paris, Visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg, have co-authored a book entitled “International Commercial Arbitration: A Comparative Introduction” for which Adjunct Professor John Fellas acted as Consultant Editor.

The book is a concise comparative introduction to international arbitration. With reference to recent case law from leading arbitration jurisdictions and up-to-date rules revisions (including by the German Arbitration Institute, HKIAC, the International Chamber of Commerce, the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre SIAC), and the Vienna International Arbitration Centre), it provides a comparative analysis of the issues raised in arbitration, from the time of #drafting of arbitration clauses to the rendering of the award and the post-award stage. After introductory remarks on the applicable normative framework, the book covers arbitration agreements and their enforcement, the initiation of #proceedings, the constitution of the tribunal, the taking of evidence, issues arising in complex arbitrations, as well as the #award and the post-award regime.

More information can be found on the publisher’s website.

Adjunct Professor Pedro Martinez-Fraga was invited to teach a course on private international law at the prestigious Hague Academy of International Law. The Hague Academy, which, since its creation in 1923, has occupied premises at the Peace Palace in the Hague, alongside the highest judicial institutions such as the International Court of Justice and the Bureau of the Permanent Court of Arbitration, is a centre for research and teaching in public and private international law, with the aim of further scientific and advanced studies of the legal aspects of international relations. It does not have a permanent teaching staff, but its scientific body, the Curatorium, freely calls upon academics, practitioners, diplomats, and other personalities from all over the world whom it considers qualified to give courses, in English or French (with simultaneous interpretation). These courses are given in the form of a series of lectures, on general or special subjects.

Professor Martinez-Fraga, a leading practitioner in the field of investor-State international arbitration, international commercial arbitration, and transnational litigation, including complex jurisdictional disputes concerning common law and civil law issues, and co-leader of the International Arbitration practice of Bryan Cave Leigthon Paisner, joins the ranks of other NYU faculty who over the years have taught courses at the Hague Academy, such as Professor Franco Ferrari (Forum shopping despite unification of law, 413 Collected Courses of the Hague Academy of International Law (2021)), Professor Ryan Goodman (International Humanitarian Law and the Use of Lethal Force, 2019), Professor José Alvarez (The public international law regime governing international investment, 344 Collected Courses of the Hague Academy of International Law 193 (2009)), Professor Linda J. Silberman (Cooperative efforts in private international law on behalf of children: the Hague Children’s Conventions,  323 Collected Courses of the Hague Academy of International Law 261 (2006)), who will also give the General Course on private international law during the Hague Academy’s 2021 summer session, Theodor Meron (International law in the age of human rights, 301 Collected Courses of the Hague Academy of International Law 9 (2003), and Status and independence of the international civil servant, 167 Collected Courses of the Hague Academy of International Law 285 (1980)), and late Professors Thomas M. Franck (Fairness in the international legal and institutional system, 240 Collected Courses of the Hague Academy of International Law 9 (1993), and Minimum standards of public policy and order applicable to collective international commodity negotiations, 160 Collected Courses of the Hague Academy of International Law 395(1978)), and Andreas F. Lowenfeld (International litigation and the quest for reasonableness : general course on private international law, 245 Collected Courses of the Hague Academy of International Law 9 (1994), and Public law in the international arena : conflict of laws, international law, and some suggestions for their interaction, 163 Collected Courses of the Hague Academy of International Law 311 (1979)).

Professor Franco Ferrari, the Center’s Director, has just published the lectures on “Forum Shopping Despite Unification of Law” he gave during the summer 2019 session at the Hague Academy of International Law. The lectures, to which the entire volume 413 of the Recueil des cours is dedicated, show that forum shopping is ubiquitous in international commercial law and that this also holds true in respect of international commercial law stemming from uniform substantive law conventions. The lectures show that despite statements to the contrary, these conventions are unable to prevent forum shopping for many different reasons, both convention-extrinsic and convention-intrinsic. The convention-extrinsic reasons are reasons independent of the specific uniform substantive law convention which may be applicable in a given case. There are and will always be reasons for forum shopping that uniform substantive law conventions will not have any impact upon, such as the potential bias of the adjudicator or the costs of access to justice, just to name a few which were addressed in the lectures. As for the many convention-intrinsic reasons discussed in the lectures, Professor Ferrari asserts that no drafting efforts will be able to do away with them. Ultimately, this means that forum shopping is here to stay, despite the unification of substantive law through conventions. The lectures also show that this is not necessarily a bad thing, because forum shopping as defined in the lectures is not the evil commentators make it out to be.

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.

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.

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.

On 17 April 2020, the Ontario Superior Court of Justice rendered its decision in  Best Theratronics Ltd. v. The ICICI Bank of Canada, 2020 ONSC 2246 (CanLII). It is decision, which evolved around a contract dispute between a claimant seated in Canada and the Republic of Korea, the Court had to address, inter alia, the question of whether the Ontario courts had subject-matter jurisdiction. In deciding the issue, the Court also referred to the 1980 United Nations Convention on Contracts for the International Sale of Goods, which the contract was subject to, and relied on a book co-authored by Professors Franco Ferrari, the Center’s Director, and Marco Torsello, professor of law at Verona University School of Law and two-time visiting professor at NYU School of Law.

On September 23, 2019, Professor Ferrari, the Director of the Center, was reappointed as President of the Thailand Arbitrator Committee established at the Thailand Arbitration Center (THAC) for a period of three years. The tasks of the President of the Arbitrators Committee are outlined in the Arbitrator Committee Rules. In light of these Rules, Professor Ferrari will preside of the meetings in which the Thailand Arbitrator Committee will take decisions regarding the challenges to arbitrators. As President of the Arbitrator Committee, Professor Ferrari will, however, be the sole responsible for appointments and removals of arbitrators.

On Tuesday, April 9, 2019, Professor Franco Ferrari, the Center’s Director, will give a talk on “Hardship-Clauses in International Sales  Contracts” on the occasion of a workshop co-hosted by the Center and Bucerius Law School on the occasion of the 3^rd Hamburg Arbitration Day. The talk by Professor Ferrari will focus on how the economic crisis has affected long-term international sales agreements, more specifically, whether the United Nations Convention on Contracts for the International Sale of Goods deals with economic hardship and what consequences the answer to this question triggers. For the event flyer, please click here.