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 Submits Amicus Brief Supporting Tech Companies

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.”

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.

World Intellectual Property Organization, USCIB Hold Virtual Dialogue

The World Intellectual Property Organization (WIPO) and USCIB held a virtual dialogue on July 29 with over twenty participants, including USCIB members and WIPO Assistant Directors General Marco Aleman and Edward Kwakwa.

According to USCIB Senior Vice President for Innovation, Regulation, and Trade Brian Lowry, the dialogue covered a range of topics of interest to USCIB members. Specifically, WIPO leaders engaged on the following: The Hague System for the International Registration of Industrial Designs; Intellectual Property (IP) and Innovation Ecosystem Sector; WIPO Arbitration and Mediation Center; Building Respect for Intellectual Property; WIPO’s Department for Economics and Data Analytics; WIPO GREEN; Geneva Intellectual Property Discussions

“It was clear from the increased activity at WIPO in the past 18 months that WIPO is very much alive and functional, even in these most difficult times,” said Lowry.

“In addition to the wealth of information provided, the Dialogue provided members with new opportunities to advance their business objectives with support from WIPO programs, initiatives, and personnel. WIPO leadership specifically requested members to contact them with their specific interests for further engagements to advance projects and outcomes, as well as to identify opportunities to help advance the youth and IP initiative which was discussed briefly,” he added.

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.

ICC Institute Advanced Training: Data Protection and Cybersecurity in Virtual Proceedings

The training will use a case study and the ICCA-IBA Roadmap and Annexes to provide hands-on expertise in applying the data protection laws and related cybersecurity requirements to an international arbitration proceeding being held virtually. The training will start with an overview of what data protection is and what it means for a virtual arbitration. There will then be breakout sessions that will consider in a small group setting how data protection may impact each of the procedural stages in a typical arbitration that is being held virtually. We will then come together and discuss what we have learned during the breakouts and best practices for addressing data protection and cybersecurity in virtual arbitration proceedings.

For more information and to register please click here.

For any questions, please contact Kendall Thibeadeau kthibeadeau@uscib.org.

Arbitrating with Non-Participating Respondents: Pitfalls and Best Practices

 

Arbitrating with Non-Participating Respondents: Pitfalls and Best Practices

Date: Thursday, November 5, 2020

Time: 12:00pmET

With the increasing likelihood that, due to the pandemic, arbitrators and claimants will encounter more cases with non-participating respondents, join us for an interactive roundtable discussion addressing practical issues and challenges for arbitrators and counsel arising out of these cases.

A panel of seasoned practitioners will both identify various thorny procedural and substantive issues presented by cases with non-participating respondents, and provide practical guidance for counsel and arbitrators when presenting or evaluating evidence, as well as measures that should be considered or taken to balance the due process rights of non-participating respondents with the need to move the arbitration forward and render an enforceable award.

This complimentary event is part of USCIB/ICC USA’s Sole Practitioner Group “Nuts & Bolts Arbitrator Series,” and supported by CIArbNY.

For more information and to register please click here.

For any questions, please contact Kendall Thibeadeau, Policy and Program Assistant at kthibeadeau@uscib.org.

18th ICC Miami Conference on International Arbitration

ICC’s Annual Miami Conference is taking place online for the first time!

-An exclusive interview with Alexis Mourre: “Re-shaping Dispute Resolution in a new era” followed by Q&A

– Tackling 5 Tricky scenarios of online arbitrations: What would you do?

– How can dispute resolution services support business resilience: An in-house perspective

– Closing Keynote speech by Roberto Azevêdo, Executive Vice President and Director of Corporate Affairs at PepsiCo, and former Director-General of the World Trade Organization.

 

For more information and to register please click here.

For any questions, please contact Kendall Thibeadeau, Policy and Program Assistant at kthibeadeau@uscib.org.

USCIB Delegation Makes Interventions at UN Meetings on Investment Reform

USCIB member Lauren Mandell from Wilmer Hale and USCIB Senior Director Eva Hampl represented the USCIB delegation at the meetings of the UN Commission on International Trade Law (UNCITRAL) Working Group III on Investor-State Dispute Settlement (ISDS) Reform that took place October 5-9. The meeting sought to address a variety of issues crucial to USCIB and its membership.

USCIB participated in the discussions as an observer and made interventions on alternative dispute resolution and mediation, shareholder claims and reflective loss, frivolous claims, as well as treaty interpretation.

“USCIB appreciated the opportunity to make interventions at UNICTRAL,” said Hampl. “As next steps, we are planning a briefing with the U.S. government negotiators in these discussions to take place in November.”

The next meeting of UNCITRAL Working Group III will take place April 12-16, 2021 in New York. UNICTRAL will also hold a Virtual Pre-intersessional Meeting of the working group on November 9.

USCIB/ICC USA Arbitration Fall Series: Update on Committee Activities and Tribunal Secretaries: Uses and Misuses

Date: September 8, 2020

Time: 12:30pm – 2:00pm ET

Join us for our first webinar in fall 2020 during which the new chair of USCIB/ICC USA’s Arbitration Committee, Peter Sherwin, will provide an update on committee activities and projects. This will be followed by a panel discussion on tribunal secretaries.

Tribunal secretaries are regularly used by arbitral tribunals seated in Europe and elsewhere, particularly for large or complex arbitrations; however, North American tribunals have traditionally been less likely to employ secretaries. Organized by the Sole Practitioner’s Group as part of its “Nuts & Bolts Arbitrator Series,” the panel will examine the reasons for this disparity, explain the circumstances in which tribunal secretaries are appropriate and promote efficiency, and discuss best practices.

A copy of the program can be found here. To register please click here.