Nancy Thevenin Archives

Arbitration

Published on June 14, 2023

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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USCIB Submits Amicus Brief Supporting Tech Companies

Published on December 7, 2022

USCIB, along with the Chamber of Commerce, NFTC and Business Roundtable submitted an amicus brief on December 6 in support of Twitter. The Ninth Circuit has determined that Twitter, along with Google and Facebook, were generally aware that some supporters or members of ISIS—an international terrorist organization—were among the billions of users on their social media platforms; therefore, these companies are potentially liable for an ISIS attack that killed 39 people in Istanbul. The amicus brief argues that the Ninth Circuit’s decision should be reversed.

According to USCIB General Counsel Nancy Thevenin, these companies could be subjected to liability for ISIS’s terrorist acts, even though they barred pro-terrorist content from their platforms and regularly removed such content when they become aware of it.

The amicus brief adds: “The court of appeals’ ruling effectively eviscerates Congress’s requirements that defendants must knowingly provide substantial assistance to an injury-causing terrorist attack before they may be held civilly liable under the Act. That dramatic expansion of liability would have significant adverse consequences for the entire business community.”

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

Published on June 16, 2021

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.

ICC Launches Report on Climate Change Related Dispute Resolution

Published on January 28, 2020
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

Published on January 28, 2020

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 Urges Reversal of 1-800 Contacts FTC Ruling

Published on June 18, 2019

USCIB filed an amicus brief with regards to 1-800 Contacts, Inc. case to highlight the challenges American businesses would face under the recent Federal Trade Commission’s (FTC) decision’s approach to antitrust liability for trademark settlements, and explain the potential negative impacts the decision would have on businesses, consumers and competition if left to stand.

USCIB General Counsel Nancy Thevenin led the process for USCIB. “The Commission’s decision creates substantial uncertainty regarding the enforcement and settlement of intellectual property rights, increases the risk of arbitrary enforcement against even routine settlements, and potentially exposes settlements to such risk for decades,” warned Thevenin. “The decision should be reversed.”

Earlier this year, the FTC decided to impose antitrust liability against 1-800 Contacts, the largest online retailer of contact lenses in the U.S., on the basis that 1-800 Contacts’ settlements of trademark infringing lawsuits against at least fourteen competing online contact lens retailers restricted trade. Among other things, USCIB’s amicus argues that the Commission’s decision ignores the critical importance to business of intellectual property rights and its enforcement and would unfairly require the lawful exercise of such rights to a higher pro-competition standard.

USCIB thanks Eileen M. Cole, Bryant D. Gant and Seiji Niwa of member firm White & Case for their work with the amicus.

 

USCIB Sponsors Seminar on Mitigating Business Risk With Arbitration

Published on June 17, 2019

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

Published on May 20, 2019

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.

Seminar on International Arbitration of Life Sciences Disputes

Published on March 4, 2019

International Arbitration of Life Sciences Disputes: Key Issues and Best Practices

Description: The life sciences industry – pharmaceuticals, medical devices, diagnostics, vaccines, and related businesses – is huge, growing and global, with international licensing, sales contracts, research and development agreements, and joint ventures. Each of these international ventures can lead to disputes, and well-positioned life sciences companies prefer international arbitration to litigation as the practical way to achieve confidential, widely enforceable judgments in a neutral setting. Listen in as our distinguished panel of speakers explain why international arbitration is the preferred dispute resolution mechanism for life sciences disputes, before they take a deeper dive into some of the complex issues that can arise in such disputes. Then join us for a reception following the event.

Location: Boston, MA

Date: April 10, 2019

Time: 5:00- 7:30 PM

Register here : https://iccwbo.org/event/international-arbitration-life-sciences-disputes-key-issues-best-practices

Arbitration Committee Meetings Plan for Upcoming Year

Published on February 5, 2019
USCIB President and CEO Peter Robinson speaks at the NY Arbitration Committee luncheon

USCIB co-hosted Washington, DC and New York City luncheons of its Arbitration Committee on January 25 and 29, respectively. The meetings brought together local arbitration professionals for an update on new initiatives, as well as a look back on 2018 accomplishments by the ICC International Court of Arbitration©.

Hosted by Washington, DC Subcommittee Chair, Jonathan Greenblatt of Shearman & Sterling, the Washington Luncheon featured a presentation by and discussion with the Secretary General of the ICC Court Alexander Fessas, who provided an update on the ICC’s cases in 2018, use of the expedited and the emergency arbitrator procedural rules and the ICC Court’s goals for 2019. This was followed by an interactive panel discussion with Grant Hanessian of Baker & McKenzie, Claudia Frutos-Peterson of Curtis, Mallet-Prevost, Colt & Mosle LLP, and Christopher Ryan of Shearman & Sterling, providing practical guidance for handling arbitrations involving states and state-entities and describing key differences when handling investor-state and commercial disputes. The program ended with USCIB General Counsel Nancy Thevenin providing an update on developments in USCIB’s Arbitration Committee.

Hosted by Hanessian, the New York Luncheon several days later featured executive summaries from key members of the ICC International Court of Arbitration, including President Alexis Mourre, Secretary General Alexander Fessas and Counsel for North American Cases Marek Krasula. Mourre provided insight into trends in U.S. cases during the past year and expected developments in the coming year. This was followed by a town hall-style Q&A moderated by Claudia Salomon of Latham & Watkins, who also serves as the vice president of the ICC Court, with questions about the ICC Court’s diversity initiatives, arbitrator appointment process and plans to publish some of its awards.