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

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

INTRODUCTION

In its recent decision, The Russia Federation v. Luxtona Limited,[1] the Ontario Superior Court addressed the standard of review applicable to a challenge to an arbitral tribunal’s jurisdictional decision under Article 16(3) and 34(2)(a)(iii) of the UNCITRAL Model Law on International Commercial Arbitration. The Court notably dealt with the inclusion of fresh evidence[2] as part of that challenge. The Court ruled that the judicial review of an arbitral tribunal’s jurisdiction takes the form of a review on a “correctness” standard, not a trial de novo. Consequently, while a court may review questions of law to reach the correct decision, it must defer to the arbitral tribunal’s factual findings, unless the challenging party shows the tribunal made a “clear and overriding” error in its appraisal of the facts.[3] As such, parties must obtain leave of the Court to adduce fresh evidence.[4]

This decision breaks from tradition. Ontario case law, like in other Model Law jurisdictions has generally tended more toward a trial de novo approach granting courts unfettered original jurisdiction to determine an arbitral tribunal’s jurisdiction, including the right to make factual findings and rehear witnesses.[5] As such, parties could file fresh evidence as of right.

The Ontario Court’s decision in Luxtona is a welcome evolution. Its outcome achieves an appropriate balance between holding a trial de novo and giving full deference to an arbitral tribunal’s jurisdictional ruling. While the decision regrettably fails to address the strongest arguments from jurisdictions having adopted the trial de novo approach, which opens it up to future challenges, stronger reasons can be offered in support of the “correctness” review approach.

1. SUMMARY OF THE DECISION

In Luxtona, the plaintiff, Luxtona Limited initiated arbitral proceedings against the Russian Federation pursuant to the Energy Charter Treaty for failing to protect its investment in Yukos, one of Russia’s largest oil companies at one point. While Russia signed the Treaty, it had never ratified it. Luxtona argued that Russia was bound by the Treaty and its arbitration clause,[6] since signatories of the Treaty also agree to its provisional application pending ratification.[7] Russia argued that the provisional application of the Treaty is inconsistent with Russian law and therefore, does not apply. Following an initial arbitration hearing in Toronto in which Russian law experts testified for both sides, the arbitral tribunal determined that it had jurisdiction to hear the dispute.[8]

Russia challenged the ruling in the Ontario Superior Court under Articles 16(3) and 34(2)(a)(iii) of the Model Law, in force in Ontario.[9] In support of its application, Russia filed additional expert evidence. Luxtona objected to its inclusion. A first Superior Court judge, Dunphy J., ruled that the evidence could be admitted as of right,[10] referring to the precedent of United Mexican States v. Cargill, Inc.[11] rendered by the Ontario Court of Appeal in 2011. In Cargill, the Court had stated that correctness review “is consistent with the reasoning in [Dallah Real Estate Holdings v. Pakistan].”[12] In that case, rendered months before Cargill, the Supreme Court of the United Kingdom set aside an arbitral award on the basis that the arbitral tribunal did not have jurisdiction to render an award on the parties’ dispute. In reaching its conclusion, the Court heard additional evidence including expert evidence on French law.[13]

The second judge, Penny J., took over the proceedings and ordered submissions from the parties on the standard of review and admissibility of the fresh evidence. At trial, Penny J. ruled that review on a “correctness” standard applies. As such, the court must consider whether the arbitral tribunal has reached the correct decision on jurisdiction. Normally, this will entail deference to the evidence on the arbitral record and thus, a party must obtain leave of the court to submit fresh evidence on a review of the type found under Article 16(3) of the Model Law.[14] Penny J. ruled that a party seeking to adduce fresh evidence must show that the evidence: (1) “could not have been obtained using reasonable diligence, (2) would probably have an important influence on the case, (3) is apparently credible, and (4) is such that, if taken with the other evidence adduced in the arbitration, it would be expected to have affected the result.”[15] Russia conceded that its evidence would be inadmissible under this test.

2. APPRAISAL

Luxtona adopts an appropriately deferential standard of review for a tribunal’s jurisdictional decision. While the decision suffers from its failure to address the strongest arguments for the trial de novo approach, “correctness review” remains appropriate, nonetheless.

First, a review on a “correctness” standard is appropriate to resolve challenges to jurisdictional decisions under Article 16(3) of the Model Law. Under this approach, a court retains the power to overturn an arbitral tribunal while giving deference to the arbitral tribunal’s factual findings. This protects the parties’ consent to arbitrate only disputes agreed upon in advance, while, at the same time, promoting the finality and effectiveness that arbitration seeks to promote.[16]

While the trial de novo approach protects consent to arbitration, this approach overstates the court’s importance in ensuring that the parties’ consent is being respected and devalues the arbitral tribunal’s ability. Indeed, an arbitral tribunal will often be just as capable if not more capable than a court to rule on its jurisdiction. A tribunal is often constituted with three arbitrators who are experts in the subject area of the dispute, whereas a domestic court judge usually sits alone and has no expertise.[17] Reviewing a jurisdictional decision on a “correctness” standard gives proper weight to the arbitral tribunal’s factual findings. It recognizes, first, that the arbitral tribunal has assessed the credibility of witnesses and considered the evidence at length, while at the same time giving the court the power to overturn its decision if it finds legal errors. Second, “correctness” review focuses the court’s analysis on specific challenges to the arbitral tribunal’s legal reasoning. Contrary to a trial de novo, which demands completely rehearing the jurisdictional question, including the factual findings, from a practical point of view, “correctness” review forces the challenging party to point out specific legal errors made by the arbitral tribunal.[18]

Second, while Penny J. regrettably fails to address significant arguments usually put forward by courts applying the trial de novo approach, “correctness” review remains appropriate and can withstand these objections. The most consistently stated argument put forward for adopting the trial de novo approach is that Article 16(3) of the Model Law states that, after an arbitral tribunal has ruled on its jurisdiction, a party may request that a domestic court “decide the matter”.[19] No provision in Article 16 or the Analytical Commentary supports this interpretation.[20]

Another objection is that if the court was limited to a process of review, “it might be reviewing the decision of a tribunal that itself had no jurisdiction to make such a finding.”[21] This argument ignores the arbitral tribunal’s competence-competence, that is, its capacity to “rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement” [our emphasis] enshrined in Article 16(1) of the Model Law. A trial de novo sterilizes this principle and wastes significant party resources. Since, under Article 8 of the Model Law, a court must refer the parties to arbitration at one party’s request, this forces the parties to obtain an initial jurisdictional ruling from the arbitral tribunal, which a court may completely disregard if a party decides to challenge it.

Finally, commentators argue that a court is not in a worse position to make assessments than the tribunal and should therefore be able to examine witnesses in the usual way.[22] As explained earlier, several reasons can make an arbitral tribunal’s factual findings of higher quality.

CONCLUSION

Luxtona paves the way for future challenges to arbitral jurisdiction being resolved through a review on the “correctness” standard. This is an appropriate break from Model Law jurisdictions which conduct the jurisdictional analysis de novo. While properly ensuring that parties have consented to arbitration, a review leaves space for domestic courts to overturn findings of arbitral tribunals. This promotes the efficiency that makes arbitration desirable in the first place.

Laurent Crépeau is an LL.M Candidate in the International Business Regulation, Litigation and Arbitration specialization at New York University School of Law. He holds a Bachelor of Civil Law and Juris Doctor from McGill University’s Faculty of Law.

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[1] The Russia Federation v. Luxtona Limited, 2019 ONSC 7558 (Can. Ont.).

[2] Fresh evidence is evidence that was not submitted during the arbitration but is submitted at the review stage.

[3] In Canada, this has been elaborated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[4] Luxtona, 2019 ONSC 7558, para. 66.

[5] See United Mexican States v. Cargill, Inc., 2011 ONCA 622 (Can.). See also Insigma Technology Co. Ltd. v. Alstom Technology Ltd. [2008] SGHC 134 (Sing.); M/s. Schlumberger Asia Services Ltd. v. Oil & National Gas Corporation Ltd. FAO(OS) No. 712/2006 (India Delhi HC). See also; Bowen Construction Limited (in receivership) v. Kelly’s of Fantane (Concrete) Limited (in receivership) [2019] IEHC 861 (Ir.); S Co. v. B Co., [2014] 6 H.K.C. 1436 (C.F.I.). Contra Government of the Lao People’s Democratic Republic v. Sanum Investment Ltd. [2016] SGCA 57; M/s Emkay Global Financial Services Ltd. v. Girdhar Sondhi, (2018) 9 SCC 49.

[6] Energy Charter Treaty art. 26(3)(a), Dec. 17, 1994, 2080 UNTS 95.

[7] Id. at art. 45.

[8] See Luxtona, 2019 ONSC 7558, para. 1-7.

[9] International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5. See UNCITRAL Model Law on International Commercial Arbitration, arts. 16(3), 34.

[10] The Russia Federation v. Luxtona Limited, 2018 ONSC 2419, para. 28 (Can.).

[11] United Mexican States v. Cargill, Inc., 2011 ONCA 622 (Can.).

[12] Cargill, supra para. 43.

[13] Dallah Real Estate and Tourism Holding Company v. Pakistan[2010] UKSC 46, para. 14.

[14] The Russia Federation v. Luxtona Limited, 2019 ONSC 7558, para. 66. (Can.).

[15] Id., para. 69.

[16] See William W. Park, Why Courts Review Arbitral Awards, in Law of International Business and Dispute Settlement in the 21st century: Liber Amicorum Karl-Heinz Böckstiegel 595, 596 (Robert Briner ed., 2001).

[17] See Emilia Onyema, The Jurisdictional Tension between Domestic Courts and Arbitral Tribunals, in International Arbitration and the Rule of Law: Contribution and Conformity(Andrea Menaker, ed., 2017), 481, 484-85.

[18] See Luxtona, supra note 15, para. 67.

[19] See e.g. Insigma Technology Co. Ltd. v. Alstom Technology Ltd. [2008] SGHC 134, para. 21 (Sing.).

[20] See Ilias Bantekas et al. UNCITRAL Model Law on International Commercial Arbitration: A Commentary (Cambridge University Press, 2020), 312 (stating the lack of clearly indicated standard of review for challenges under Art. 16(3)).

[21] See Insigma at para. 22.

[22] Id.

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.

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

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

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

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

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

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

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

Program:

• Opening Remarks: Ahmed Bin Hezeem, DIAC, Dubai

• Introductory Remarks: Franco Ferrari, NYU

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

Rosenfeld, NYU Paris, Hanefeld, Hamburg

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

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

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

DIAC, Gordon Blanke, Blanke Arbitration LLC., Dubai

• Closing Remarks, Rashid Shahin, DIAC

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

To attend, please submit the webinar registration here.

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

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

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

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

The event will be moderated by Dirk De Meulemeester.

To attend, please submit the webinar registration here.

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

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

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

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

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

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

The panel is moderated by Franco Ferrari.

To attend, please submit the webinar registration here.

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

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

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

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

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

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

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

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

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

The Symposium allows young scholars interested in commercial arbitration to present their ideas and have more experienced scholars and practitioners comment on their presentations and the papers on which their presentations are based. This year, two NYU graduates (Jack Davies and Lucas Lim) and two graduates from SciencesPo Law School (Rafaela M. da Magalhaes and Jack Biggs) will present their papers, and Professors Giuditta Cordero-Moss and Pierre Tercier will act as discussants. The event will be moderated by Karolina Rozycka and Alexandre Senegacnik.

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

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

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

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

The recording is now available for viewing.

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.