Arbitration

USCIB Value Add

  • When commercial disputes arise, the dispute resolution services of the International Chamber of Commerce (ICC) can be relied upon to resolve them efficiently and economically.
  • Working with ICC Conferences or SICANA, USCIB’s Arbitration Committee assists in organizing conferences, seminars and corporate roundtables nationwide to educate the public about ICC’s different dispute resolution services.
  • Meet with officials from countries around the world to discuss the ICC’s arbitration system and other dispute resolution services.
  • Identify opportunities for ICC arbitration and/or ADR to be designated as a means of dispute resolution for domain name and other e-commerce disputes and in multilateral and regional instruments, such as the Free Trade Area of the Americas (FTAA) and BITs.
  • Work with the U.S. Department of Commerce to distribute information on the ICC Court to commercial offices in U.S. embassies and consulates.

Magnifying Your Voice with USCIB:

  • Through its affiliation with ICC, USCIB’s Arbitration Committee serves as the primary contact point in the United States for information about the ICC International Court of Arbitration® (the ICC Court) and ICC’s wide range of dispute resolution services.
  • USCIB serves as a contact point for the ICC Court in the United States, nominates Americans to serve as members of the ICC Court and as ICC arbitrators, mediators and experts and acts as a referral source for parties seeking these neutrals or counsel in ICC proceedings.
  • USCIB participates in and nominates its members to serve on the ICC Arbitration Commission and its numerous Task Forces, such as the task forces on Drafting Arbitral Awards, Arbitrating Competition Law Issues, IT in Arbitration, Guidelines for ICC Expertise Proceedings, Criminal Law and Arbitration, Reducing Time and Costs in Complex Arbitration, European Contract Law, and “Amiable Composition and ex aequo et bono” to name a few.
  • Co-sponsor international dispute resolution seminars with international institutions, bar associations, corporate counsel organizations, and potential users of arbitration and other forms of ADR.

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News Stories

USCIB Invited to Participate in Review of Investment Contracts at UNIDROIT (7/19/2023) - USCIB has been invited to participate in a new workstream to develop guidance for modernization and standardization of international investment…

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Op-Eds and Speeches

USCIB Op-Ed: Supreme Court Limits Discovery in International Commercial Arbitrations (8/10/2022) - Grant Hanessian, former chair of the USCIB Arbitration Committee, shares an opinion piece following the Supreme Court’s decision to limit…

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Chair

Peter J.W. Sherwin
Partner
Proskauer

Staff

Nancy Thevenin
General Counsel
212-703-5047 or nthevenin@uscib.org

Tatianna Sample
Senior Administrative Assistant, Claims
tsample@uscib.org

Subcommittees

Florida and U.S. Caribbean
Mid-Atlantic
Midwest
Northeast
Northwest

Subcommittees

Rocky Mountain
Southeast
Southwest
Southern

Subcommittees

Academics
Amicus
Corporate Counsel
Expatriate

Subcommittees

Sole Practitioners
Transactional Lawyers
Task Force on Diversity Equity and Inclusion

Click here for a full list of USCIB Arbitration Committee officers

 

USCIB Arbitration Meetings Aim to Strengthen the Field of Arbitration in 2023 

L-R: Claudia Salomon (ICC Court), Peter Robinson (USCIB), Peter Sherwin (Proskauer Rose)

USCIB/ICC USA held its Annual Arbitration and ADR Committee Luncheon at Proskauer Rose LLP, a USCIB member law firm, on January 10.

The event, attended by over 100 people, featured a welcome and opening remarks by USCIB President and CEO Peter Robinson, Proskauer Rose Partner Peter Sherwin—who also chairs the USCIB Arbitration Committee—and International Chamber of Commerce (ICC) International Court of Arbitration President Claudia Salomon. 

Robinson addresses the international arbitration community

In his remarks, Robinson raised a vision for promotion of ICC dispute resolution services in the U.S. for 2023, facilitated by greater collaboration between practitioners and policy experts within USCIB membership. This vision was echoed by Sherwin and Salomon as both are seeking to bring together the U.S. arbitration community through new projects from both ICC and USCIB/ICC USA. The event aimed to have ICC and USCIB/ICC USA members reflect on the achievements of the past year and to look forward through new initiatives. Remarks on unity by Robinson, Sherwin and Salomon were thus reinforced through a reconnection and shared vision of the U.S. arbitration community. 

Salomon also highlighted the ICC Court’s 100th anniversary year and invited participants to participate in the January 19 launch of the Centenary celebrations. 

During the meeting, leaders from ICC and USCIB/ICC USA gave remarks about current projects, including Abbey Hawthorne, deputy director, ICC Arbitration and ADR, North America (known as SICANA), as well as representatives from USCIB member law firms, such as Caline Mouawad, partner at Chaffetz Lindsey, Mélida Hodgson, partner at Arnold & Porter, Michael Fernandez, partner at Rivero Mestre, Yasmine Lahlou, partner at Chaffetz Lindsey and Nancy M. Thevenin, general counsel at USCIB/ICC USA. 

Left to right: Peter Robinson (USCIB) and Peter Sherwin (Proskauer Rose)

After the informative session, members of the audience were invited to voice their opinions and pose questions in an open-mic session. The event was successful in bringing together a community with the common goal of strengthening the field of arbitration with a vision towards the future. 

“We wholeheartedly thank Proskauer Rose LLP and Peter Sherwin for hosting and facilitating an insightful discussion about the future of USCIB/ICC USA,” said Thevenin.  

Attendees at the Annual Leaders’ Meeting

Prior to the Annual Luncheon, USCIB/ICC USA also hosted its Annual Leaders’ Meeting, which brings together the leaders of the Committee’s seventeen Subcommittees (both Regional and Topical) and Task Forces—including member law firms, corporate counsel, and independents and sole arbitrators.  

With over thirty in attendance, key review areas included nominations and opportunities for both participation and leadership in ICC arbitrations and ICC/USCIB activities, Diversity/Equity/Inclusion, highlights of SICANA programming and the work of the Subcommittees, and a dialogue led by ICC Court President Salomon on increasing engagement with corporate counsel. 

USCIB Op-Ed: Supreme Court Limits Discovery in International Commercial Arbitrations

Grant Hanessian

Grant Hanessian, former chair of the USCIB Arbitration Committee, shares an opinion piece following the Supreme Court’s decision to limit discovery in international commercial arbitrations in the Z.F. Automotive U.S. Inc v. Luxshare Inc., a case in which USCIB and the ICC International Court of Arbitration filed an amicus curiae brief.

Hanessian is an independent arbitrator in New York and an Adjunct Professor of Law at Fordham University School of Law.  Prior to July 2020, Hanessian was a partner at Baker McKenzie, where he practiced for 33 years, and served as global co-head of the firm’s International Arbitration Practice.  He is the immediate past chair of the USCIB’s Arbitration Committee and currently coordinates the Committee’s amicus activities.

Supreme Court Limits Discovery in International Commercial Arbitrations

By Grant Hanessian

On June 13, 2022, the U.S. Supreme Court in Z.F. Automotive U.S. Inc. v. Luxshare Inc. held that parties to international commercial arbitrations may obtain discovery in the United States under 28 U.S.C. § 1782 (“Section 1782”).   The case resolved a longstanding split among U.S. Circuit Courts of Appeal with respect to the availability of Section 1782 in international commercial arbitrations, but left open the possibility that the statute may be available to parties to certain investment treaty arbitrations, as discussed below.

As amended in 1964, Section 1782 states that U.S. district courts may order a person to “give testimony … or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”.  U.S. Courts of Appeals for the Fourth and Sixth Circuits held that parties to international arbitrations may invoke Section 1782 to obtain broad U.S.-style discovery in aid of international arbitrations.  U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits held that Section 1782 was not available in such cases.

The USCIB and ICC Court of Arbitration filed an amicus curiae brief in Z.F. Automotive.  The brief—written by a Freshfields team comprising partners Linda H. Martin, Noah Rubins QC, and Nicholas Lingard and senior associates Kate Apostolova and Eric Brandon—did not take a position on the scope of Section 1782, but asserted that if Section 1782 applies to private commercial arbitrations, U.S. courts should afford a very high degree of deference to whether the arbitral tribunal presiding over a particular arbitration believes the requested discovery is appropriate.

In Z.F. Automotive, the Supreme Court did not reach the subject of the USCIB/ICC amicus brief, but rather held, in a unanimous decision written by Justice Amy Coney Barrett, that arbitral panels in commercial cases are not “foreign or international tribunals” within the meaning of Section 1782, and thus parties to such arbitrations may not seek discovery in U.S. courts under the statute.   The Court held the statute was intended “to reach only bodies exercising governmental authority” and that a “‘foreign tribunal’ is one that exercises governmental authority conferred by a single nation, and an ‘international tribunal’ is one that exercises governmental authority conferred by two or more nations.”

The Court considered the application of Section 1782 in two cases.  The first case involved a commercial arbitration in Germany between a German bank and a Hong Kong company under the rules of the German Arbitration Institute (“DIS”).  Since no government was involved in creating the arbitral tribunal or the DIS Rules, the Court determined that the arbitral tribunal did not exercise governmental authority and therefore discovery in the U.S. under Section 1782 was not available to the parties.

The second case, involved an “ad hoc” arbitration under the UNCITRAL Arbitration Rules brought by a Russian investment fund against the Republic of Lithuania alleging breach of the Russia-Lithuania investment treaty.  The Supreme Court held that Section 1782 did not apply to this ad hoc arbitration because “the treaty [between Russia and Latvia] does not itself create the panel” but “instead it simply references the set of rules that govern the panel’s formation and procedure if the investor chooses that forum.” The Court held that “nothing in the treaty reflects Russia and Lithuania’s intent that an ad hoc panel exercise governmental authority.”

It remains to be seen whether the holding in Z.F. Automotive will apply to all investment treaty arbitrations.  Many investment treaty arbitration are brought under the International Convention for the Settlement of Investment Disputes (“ICSID Convention”), a multilateral treaty with some 154 contracting state parties.  The ICSID Convention creates a permanent institution, the International Centre for the Settlement of Investment Disputes (“ICSID”) under the auspices of the World Bank, and states the powers and functions of ICSID arbitral tribunals and the obligations of member states to enforce ICSID tribunal awards. The ICSID Administrative Council, on which each member state has a representative, meets annually to adopt administrative and financial regulations and approve rules for ICSID-administered cases.   Further litigation will be required to determine whether arbitral tribunals convened under the ICSID Convention are “international tribunals” under Section 1782.

Whatever the fate of Section 1782 in investment treaty arbitration, it is clear that the statute is no longer available to parties in international commercial arbitrations.  With respect to such cases, the appropriate scope of discovery is typically governed by the parties’ arbitration agreement, including the arbitration rules and law selected by the parties.  Many international commercial arbitral tribunals apply the International Bar Association’s Rules on the Taking of Evidence in International Arbitration to determine the appropriate scope of document production (depositions and interrogatories are unusual in international arbitration).   U.S. parties interested in broader discovery than is typically available in international arbitration should consider specifically providing for such discovery in their arbitration agreements.

Accepting USCIB Amicus Position, Appeals Court Rejects FTC Approach to Antitrust Liability for Trademark Settlements

The U.S. Court of Appeals for the Second Circuit has vacated the Federal Trade Commission’s (FTC) decision that 1-800 Contacts engaged in illegal agreements with rival online contact lens sellers on June 11, 2021.

In 2018, the Commission imposed antitrust liability against 1-800 Contacts years after it settled at least fourteen trademark infringing lawsuits against competing online retailers. The Commission alleged the settlements restricted trade by preventing all parties from bidding on each other’s trademarked search terms. USCIB filed an amicus brief in support of 1-800 Contacts during the appeal, arguing, among other things, that the Commission’s decision ignored the critical importance to business of intellectual property rights and that enforcing the FTC’s ruling would unfairly apply the lawful exercise of such rights to a higher pro-competition standard.

According to Bryan D. Gant of USCIB member firm White & Case, the Second Circuit’s opinion rejected both the idea that settling trademark disputes is “inherently suspect,” and that this standard could be applied to future cases. The court also overruled the Commission’s attempt to treat mere anecdotal price differences as direct evidence of anticompetitive conduct and directed that any “less restrictive alternatives” the Commission proposes be realistic. Bryant cautions, however, that in a footnote to the opinion, the Second Circuit leaves open the possibility that negative keyword advertising—paying to have a competitor’s name not appear in the search—might raise antitrust concerns, but the Court refused to consider it in this case as the issue was not squarely addressed by the FTC.

“USCIB is pleased that the Second Circuit decision largely accepted its amicus brief, rejecting the FTC’s approach to antitrust liability for trademark settlements, avoiding the potential negative impacts the decision would have had on businesses, consumers and competition,” asserted USCIB General Counsel Nancy Thevenin. The case is now remanded back to the Commission with instructions to dismiss.

USCIB is grateful to Eileen M. Cole, Bryan D. Gant and Seiji Niwa of member firm White & Case and USCIB Competition Committee leadership for their excellent work on the amicus brief.

The Second Circuit opinion is available here.

USCIB Announces the Appointment of Peter Sherwin as Chair of its Arbitration Committee

After five years of service, Grant Hanessian hands over the role and is appointed Chair of the group’s newly created Amicus Subcommittee

New York, N.Y., July 31, 2020 – The United States Council for International Business (USCIB), the U.S. affiliate of several global business organizations, including the International Chamber of Commerce (ICC), announced today the appointment of Peter Sherwin as Chair of its Arbitration Committee. Sherwin, who is also head of the International Arbitration Group at Proskauer, has been a USCIB member since 2007 and will succeed Grant Hanessian, who served as chair since 2015.

“It has been an honor to have served as chair of USCIB’s Arbitration Committee,” said Hanessian. “I am incredibly proud of our accomplishments these last five years. We have become a true partner for the ICC in the U.S., and I am confident in the Committee’s future under Peter’s leadership as it continues to grow and expand our impact in the U.S. market.”

Sherwin is a partner in the Litigation Department at Proskauer and head of its International Arbitration Group. Sherwin was resident in the firm’s Paris office for several years, and, while his practice focuses on acting as counsel, he also regularly serves as an arbitrator.

“I am honored to have been appointed as the Chair of this dynamic group,” said Sherwin. “I look forward to leveraging our strategic network of companies and practitioners who are united in the desire to promote the use of arbitration and ADR in resolving international business disputes. I also look forward to working closely with Nancy Thevenin, USCIB’s general counsel, who assists in managing the group, Marek Krasula, the ICC director for Arbitration and ADR for North America, and our experienced and dedicated members.”

USCIB President and CEO Peter Robinson added: “We are grateful to Grant for his dedication and leadership, which has improved the function of our Arbitration Committee. We are equally excited for what the future holds under Peter’s leadership. Peter brings a wealth of experience to our organization, which will be critical to our ability to scale and meet the growing demand of U.S. users for ICC’s dispute resolution services and products.”

About USCIB:
USCIB promotes open markets, competitiveness and innovation, sustainable development and corporate responsibility, supported by international engagement and regulatory coherence. Its members include U.S.-based global companies and professional services firms from every sector of our economy, with operations in every region of the world. As the U.S. affiliate of the International Chamber of Commerce, the International Organization of Employers and Business at OECD, USCIB provides business views to policy makers and regulatory authorities worldwide, and works to facilitate international trade and investment. More information is available at www.uscib.org.

ICC Launches Report on Climate Change Related Dispute Resolution

L-R: Edna Sussman, Matthew Draper, Kevin O’Gorman, Nancy Thevenin, and Hélène van Lith

The ICC Commission on Arbitration and ADR recently released a report on settling business disputes related to climate change with arbitration. The report, titled Resolving Climate Change Related Disputes Through Arbitration and ADR and initially launched in Paris earlier this month, was launched in New York at the offices of Norton Rose Fulbright US LLP on January 21. The New York launch was co-sponsored by USCIB and the International Chamber of Commerce (ICC) International Court of Arbitration©.

The report defines climate change-related disputes and uses hypothetical case studies to demonstrate the potential circumstances in which such disputes may arise. Contracts identified as dealing with climate change include agreements for the creation of wind farms, solar power energy plants, smart cities or to decarbonize. 2019 is a pivotal year in the development of global climate policy with the UN seeking to raise ambition of commitments from states and other actors in line with the imperative to limit global warming to 1.5°C.

“This report provides sample language for ICC arbitration clauses, as well as terms of reference and guidance for case management,” said USCIB General Counsel Nancy Thevenin, who spoke on a panel titled Users’ Perspectives. “Because of the tools this report provides, climate change related disputes can be resolved more effectively. It is an invaluable product for the business community as industries take into account international agreements concerning the environment.”

Featured speakers also included, UN Assistant Secretary-General and Head of New York Office at UN Environment Satya S. Tripathi, ICC International Court of Arbitration President Alexis Mourre, Co-Chair of the Task Force on Arbitration of Climate Change Related Disputes Patrick Thieffry and other renowned members of the international Arbitration community.

USCIB Holds Annual Arbitration Luncheon

USCIB held its annual Arbitration Committee Luncheon in New York on January 22, bringing together local arbitration professionals for an update on new initiatives and goals for 2020, as well as a look back on 2019 accomplishments by the International Chamber of Commerce (ICC) International Court of Arbitration©.

Hosted by the Chair of the USA National Committee Grant Hanessian in the offices of Baker and Mckenzie LLP, the luncheon featured executive summaries from key members of the ICC International Court of Arbitration and the USCIB-ICC USA Committee, including President Alexis Mourre, Deputy Secretary General Ana Serra e Moura, Counsel for North American Cases Marek Krasula, Secretary of the ICC Commission on Arbitration and ADR Hélène van Lith, and General Counsel USCIB-ICC USA Nancy M. Thevenin.

According to Thevenin, Mourre emphasized on the positive perception of the ICC’s new policies by businesses, noting that ICC is perceived as an open, transparent and dynamic institution and as a well-known quality decision maker in part due to its serious scrutiny process. Serra presented the statistics showing that 2019 was the second-best year in newly-registered arbitration and discussed the ICC’s new tendency to act as amicus curiae in cases that impact international arbitration practice. Krasula provided insight into trends in U.S. cases during the past year and expected developments in the coming year. Van Lith presented the role of the ICC Commission on Arbitration and ADR, its previous task forces, and current task forces on addressing issues of corruption in international arbitration as well as on ADR and arbitration.

Thevenin also presented USCIB-ICC USA’s role and its recent strategies to impact the country and provide more transparency.

USCIB Sponsors Seminar on Mitigating Business Risk With Arbitration

USCIB/ICC USA sponsored a seminar in Albuquerque, New Mexico on June 14 on international arbitration and how that state’s businesses can use arbitration to mitigate the risks of doing business overseas. Some thirty New Mexico business executives, lawyers and law students attended the presentation, which was opened by Roberta Cooper Ramo, former president of both the American Bar Association and the American Law Institute.

Marek Krasula, counsel for the ICC International Court of Arbitration in New York and David Wilson, partner at Sherman & Howard in Denver, provided an overview of ICC arbitration and how to best draft contracts to provide for it. Matthew Draper, a partner at Draper & Draper in New York and Santa Fe, moderated a panel discussion addressing issues of particular relevance to local companies, such as using arbitration to protect IP rights, recovery of attorneys’ fees by prevailing parties, and keeping the costs of arbitration to a minimum.

“The ICC’s new Expedited Procedures, which apply when less than two million dollars is at stake, reduce significantly the time and cost of dispute resolution, and may be a good fit for New Mexico companies,” said Draper.

Vice Dean of the University of New Mexico School of Law Camille Carey noted in her closing remarks that she hoped the law school would expand opportunities for students to learn about international arbitration.

Annual Proskauer Lecture Analyzes Challenges of Arbitration Community

As in previous years, USCIB was honored to co-sponsor the 7th annual Proskauer Lecture on International Arbitration along with Proskauer, Columbia University School of Law’s Center for International Commercial and Investment Arbitration Law and the International Chamber of Commerce (ICC) International Court of Arbitration. Taking place on May 14, the event opened with a welcome by Peter Sherwin from USCIB member law firm, Proskauer, and featured a lecture by widely respected commercial and investment arbitrator Mark Kantor.

The lecture focused on the topic Legitimacy Challenges to International Commercial Arbitration on the Horizon? Kantor reflected on the challenges that the arbitration community is currently facing, including bad press from cases that involve state or state-owned entities with large monetary awards, as well as the lack of diversity in the arbitration industry.

USCIB’s General Counsel, who leads USCIB’s work on Arbitration, Nancy Thevenin gave a closing statement, thanking the co-sponsors and attendees. “The Proskauer lecture series draws globally-renowned experts to educate the international arbitration community in New York, and beyond, on specific topics,” reported Thevenin following the successful event. “Through presentations like Mark’s, the lecture series has become a must-attend event.”

USCIB, or ICC USA, is the U.S. National Committee to the ICC and serves as a contact point in the U.S. for the ICC’s multi-faceted dispute resolution services.

USCIB Supports Singapore Convention on Mediation 

International businesses now have a powerful tool that will greatly facilitate international trade and commerce. The new Singapore Convention will make enforceable settlement agreements resulting from international mediation.

USCIB joined the US Chamber of Commerce, NFTC, and NAM to co-sign a letter of support for the U.S. signing and ratifying the Singapore Convention on Mediation. The letter was sent to U.S. Secretary of State Michael Pompeo on November 1. The treaty negotiation was launched by the U.S. with the aim of developing a cost-effective international legal mechanism for resolving cross-border commercial disputes between private parties.

“By encouraging the use of mediation as a viable path to resolving commercial disputes, the Convention reduces cost and eliminates the need for duplicative litigation,” the letter stated.

The Convention also improves the enforcement process by obliging governments to recognize the legal status of any mediated settlement. As a result, the Singapore Convention helps mitigate risk when entering into a commercial relationship with businesses in foreign markets and raises the standards of fair trade globally.