Faculty News

Professor Ferrari publishes a paper on the homeward and outward trends in CISG case law

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 40th 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 publishes the second edition of “The American Influence on International Commercial Arbitration”

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 Franco Ferrari publishes commentary on the Rome Regulation on the Law Applicable to Contractual Obligations (Rome I)

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.

Professors Franco Ferrari and Marco Torsello cited by the Ontario Superior Court of Justice

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.

Professor Ferrari reappointed as President of the Thailand Arbitrator Committee

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.

Professor Ferrari to give a talk on economic hardship under the CISG at Bucerius Law School in Hamburg, Germany

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 3rd 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.

Professor Franco Ferrari and Dr. Friedrich Rosenfeld publish a paper on “The Limits to Party Autonomy in International Arbitration” (in German)

Professor Ferrari, the Director of the Center, and Dr. Friedrich Rosenfeld, currently a Global Adjunct Professor at NYU Law in Paris, a visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg, have just published a paper in German on “Limits to Party Autonomy in International Arbitration”. The paper is published in a book in honor of Professor Juergen Basedow, on of the former directors of the Max Planck Institute for Comparative and International Private Law and two-time scholar-in-residence at the Center.

Professor Franco Ferrari and Dr. Friedrich Rosenfeld publish a book on “Inherent Powers of Arbitrators”

Professor Ferrari, the Director of the Center, and Dr. Friedrich Rosenfeld, a former scholar-in-residence at the Center and currently a Global Adjunct Professor at NYU Law in Paris, a Visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg, have just co-edited a book on “Inherent Powers of Arbitrators”. The book contains 14 papers tackling the most disparate topics ranging from “sources of inherent powers” and “inherent power of arbitrators to exclude counsel” to “inherent powers: disclosure of third party funders”, “the use of inherent powers by arbitrators to protect the public at large” and many more. Most papers were presented at a conference co-organized by the Center and Professor Diego P. Fernández Arroyo, who hosted the conference at the premises of SciencesPo Law School in Paris in November 2018.

Professors Franco Ferrari and Dr. Friedrich Rosenfeld to speak at an arbitration seminar in Istanbul

On 12 October 2018, Professor Franco Ferrari, the Director of the Center, and Dr. Friedrich Rosenfeld, a former scholar-in-residence at the Center and currently a Global Adjunct Professor at NYU Law in Paris, a Visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg, will give talks at a seminar on “Limitations to party autonomy in international arbitration”. The event, which is hosted by the Istanbul Arbitration Centre and moderated by Professor Ercüment Erdem, the Founder and Senor Partner of Erdem&Erdem, will focus on a paper co-authored by Professor Ferrari and Dr. Rosenfeld to be published in the forthcoming Cambridge Compendium of International Commercial and Investment Arbitration. For the event’s flyer, please click here.

Professor Franco Ferrari publishes a comment on two US. Decisions

Professor Franco Ferrari, the Center’s Director, has just published a short note in the New York Law Journal (of 7 September 2018) on the decisions rendered by the Court of Appeals for the Second Circuit and the U.S. District Court for the Southern District of New York in the in the Transmar Commodity Group Ltd. v. Cooperativa Agraria Industrial Naranjillo Ltda. case. In his note, Professor Ferrari, an expert on the CISG, the UN Convention of Contracts for the International Sale of Goods, point to the errors made by the two courts and analyzes the relationship between the CISG’s application and a choice of “the laws of the State of New York). For the link to the paper, please click here.

Professor Ferrari publishes a paper on “CISG and the Law Applicable in International Commercial Arbitration”

Professor Ferrari, the Director of the Center, an expert on the United Nations Convention on Contracts for the International Sale of Goods (CISG), has just published a paper on said Convention and its applicability in arbitral proceedings. In the paper, Professor Ferrari examines, on the basis of three common hypotheticals, the difference between the Convention’s applicability in state court proceedings and in the arbitral context. In doing so, Professor Ferrari focuses on how arbitrators get to the law applicable to the merits in international commercial arbitration. The paper is one of many papers published in “A Tribute to  Joseph M. Lookofsky”, an expert on the CISG and two time scholar-in-residence at the Center.

Professor Franco Ferrari and former Vice-President of the ICJ, Ambassador Bernardo Sepulveda Amor, to discuss the usefulness of investment arbitration for companies investing in Mexico

 

On 10 June 2015, Professor Franco Ferrari, the Director of the Center for Transnational Litigation, Arbitration and Commercial Law, and the former Vice-President of the International Court of Justice, Ambassador Ambassador Bernardo Sepulveda Amor, formerly Ambassador to the United States of America and to the United Kingdom and Secretary of Foreign Affairs of Mexico, will discuss the positive effects of investment arbitration on the development of projects in Mexico by foreign companies. Please click here for the official program.

 

Professor Ferrari delivers keynote address at Shanghai conference

Professor Franco Ferrari, the Director of the Center for Transnational Litigation, Arbitration and Commercial Law, will deliver the keynote speech on the occasion of the conference on “Doing Business with the West” organized by the International Association of Young Lawyers held in Shanghai, from March 26-28, 2015. The talk by Professor Ferrari, an expert in the area of international sales law, entitled “The application of the 1980 Vienna Convention on International Sale of Goods in arbitration proceedings” will focus on the question of whether arbitral tribunals have to apply the aforementioned Convention in arbitral settings, an issue that in recent years has received a lot of attention. For the full program please click here.

Professor Linda Silberman has been selected as ALI project Adviser

Professor Linda Silberman has been selected as one of the Advisers on the American Law Institute’s recently launched project for The Restatement of the Law (Third) Conflict of Laws. The Chief Reporter for the project is Kermit Roosevelt (University of Pennsylvania).The Associate Reporters are Laura Little (Temple School of Law) and Christopher Whytock (UCLA).

Professor Franco Ferrari publishes commentary on the Rome Regulation on the Law Applicable to Contractual Obligations (Rome I)  

Professor Ferrari, who joined NYU full-time in 2010, after serving as full professor of law at Tilburg University (the Netherlands), Bologna University (Italy) and Verona University (Italy), has just edited 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 the co-author.

As Professor Ferrari writes in the Preface to the book, 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.

German Supreme Court cites to various papers by Professor Franco Ferrari

The Federal Court of Justice of Germany cited various papers authored by Professor Franco Ferrari, the Executive Director of the Center, in a decision rendered on September 24th, 2014, concerning a dispute arising from a contract subject to the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), which establishes a uniform international sales law that has come into force in more than 80 countries, including the United States.

The court was faced with the issue of the CISG’s applicability to a contract for goods to be manufactured and cited to paper by Professor Ferrari to justify its decision to apply the CISG. The court also had to decide whether one of the parties was entitled to terminate the contract due to opposing party’s breach. The court decided that in the case at hand the requirement for a termination did not exist, as the breach did not amount to a fundamental one, as required by Art. 25 CISG. To reach its result, the court did cite to a different paper authored by Professor Ferrari as well as to a book he co-edited.

Professor Ferrari gives talks in Berlin and Rome

Professor Franco Ferrari, the Director of the Center, will give talks both in Berlin and Rome. In Berlin,  Professor Ferrari will join two former scholars-in-residence of the Center, Ms. Inka Hanefeld and Professor Luca Radicati di Brozolo, who will also give talks on the occasion of this year’s annual meeting of the German Arbitration Institution (DIS). On that occasion, Professor Ferrari will examine how international international arbitration should be (for the program, click here). In Rome, at a conference hosted by Universita’ Roma Tre and the International Institute for the Unification of  Private Law (UNIDROIT), Professor Ferrari will discuss the process of how arbitrators get to the arbitral award, focusing specifically on the deliberation process (for the program, click here). 

German Supreme Court cites papers by Professor Franco Ferrari

In a ruling of May 28th, 2014, the Supreme Court of Germany cites a paper authored by Professor Franco Ferrari, the Executive Director of the Law School’s Center for Transnational Litigation, Arbitration and Commercial Law as well as a book co-edited by him. In its ruling, the Supreme Court relied on a paper by Ferrari asserting that the definition of sales contract governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods can be derived from that Convention’s Articles 30 and 53. The Supreme Court also relied on a chapter authored by a German professor published in a book co-edited by Ferrari to get to its decision.

Professor Fernandez Arroyo, Global Professor and scholar-in-residence, appointed Secretary General of the International Academy of Comparative Law

Diego P. Fernandez Arroyo, Global Professor at NYU Paris  and April 2015 scholar—in-residence at the Center for Transnational Litigation, Arbitration and Commercial Law, has been elected Secretary General of the International Academy of Comparative Law at its XIXth International Congress held in Vienna from 20 to 26 July 2014.

The Academy, founded in 1924, has worldwide about 800 member, eighty of whom are Titular Members, including Professor Franco Ferrari, the Director of the Center for Transnational Litigation, Arbitration and Commercial Law, while the other members are associate members. According to the Academy’s Statutes, the Secretary General is responsible for the scientific programme of the Academy, overseeing the administrative operation of the Academy and supervising the publication of the Academy’s Acts and Proceedings.

Professor Fernández Arroyo is Co-Director of Global Governance Studies at Sciences Po Law School (Paris) where he teaches Arbitration, Conflicts of Laws, and International Dispute Settlement. He is also a member of the Curatorium of the Hague Academy of International Law. Recently, he has been designate Honorary Professor of the University of Buenos Aires.

 

Professor Franco Ferrari invited to give lectures at the Hague Academy of International Law

Professor Franco Ferrari, the Director of the Center for Transnational Litigation, Arbitration and Commercial Law, 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 Ferrari joins the ranks of other NYU faculty who over the years have taught courses at the Hague Academy, such as Professor José Alvarez (The public international law regime governing international investment, 344 Collected Courses of the Hague Academy of International Law 193 (2009)), 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)), 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)), 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)), as well as this November’s scholar-in-residence Peter D. Trooboff (Foreign state immunity: emerging consensus on principles, 200 Collected Courses of the Hague Academy of International Law 235 (1986)).