Norton Rose Fulbright
For nearly 90 years, our Washington, DC office has handled many matters of national and international scale, and it remains a hub for handling global regulatory matters. Among the major practices here are civil and appellate litigation at all levels, including the US Supreme Court; commodities and derivatives counselling and enforcement; government and internal investigations; and healthcare. Our DC office also serves clients seeking legal advice on matters including corporate and M&A, lobbying, tax, insurance and reinsurance, environmental law and telecommunications, media and technology. We have a strong international trade practice, as well as significant experience in projects and project finance, advising clients in the US and globally on projects ranging from power plants, telecommunications and mining to water and all forms of transport. Many of our lawyers have previously worked for major federal agencies.Show more
Arbitration & ADR
States have taken urgent and extraordinary steps to prevent the spread of COVID-19 and address the public health and economic crises that it has caused. Some such measures are aimed directly at the need to treat those affected by the virus, while others aim to address the virus's unprecedented economic impact on the world economy. Inevitably, some of these measures will affect foreign investors and their investments in host states, triggering investor-state disputes.
Where insolvency involves cross-border investments, foreign investors may have additional rights under international investment treaties or agreements (IIAs). IIAs are agreements between states in which the state receiving investment from an investor from the other state commits to provide certain levels of protection to those foreign investors in respect of their investment. Foreign investors often have a direct right under an IIA to commence proceedings against the host state for a breach of such commitments.
The COVID-19 pandemic is forcing businesses of all shapes and sizes to pursue alternate sources of funding to ensure the advancement of pending claims, bring new claims arising out of the pandemic and enhance cash flow where possible to survive. Understanding the range of dispute funding options available is critical to assess whether and, if so, how such funding can be leveraged to help a business weather the current COVID-19 environment and what is yet to come.
New York Convention does not prohibit enforcement by non-signatory under doctrine of equitable estoppelUSA | 11 June 2020
The US Supreme Court has unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not prohibit US courts from applying the domestic law doctrine of equitable estoppel when determining whether an international arbitration clause can be enforced by a non-signatory to compel arbitration. In doing so, the court effectively extended the holding in Arthur Andersen LLP to international arbitrations under Chapter 2 of the Federal Arbitration Act.
Existing dispute resolution proceedings are inevitably experiencing the impact of the COVID-19 outbreak. Where possible, hearings have been delayed or relocated. However, with many lockdowns extended for the foreseeable future, some hearings will still need to be held. Notably, the American Arbitration Association acknowledges that these are appropriate times to permit (and indeed require) the use of viable alternatives to in-person hearings.
Data protection and cybersecurity are hot topics in international arbitration and international surveys demonstrate that users of arbitration are concerned about data security. While there are signs that the market is listening, users seem to think that institutions, counsel and tribunals could do more to address cybersecurity. As these issues become more common, it is hoped that consistent practices will emerge to reassure users that their data will be secure.
Investor-state dispute settlement is an important feature of investment treaties as it is the procedural mechanism through which investors can claim compensation for a violation of a substantive investor-protection standard. The traditional mechanism (ie, investment arbitration between the investor and the host state, modelled on commercial arbitration) has been increasingly criticised. Hostility to the traditional model has led to changes in individual treaties and wider reform initiatives.
M&A lawyers mitigate buyer risk through expansive due diligence exercises and tight contractual controls. Arbitration has become a prominent forum for resolving these disputes. For example, the London Court of International Arbitration (LCIA) has reported a significant increase in the number of shareholder, share purchase and joint venture agreements being referred to LCIA arbitration. This article examines the growth of arbitration as a forum for resolving such disputes.
The International Chamber of Commerce Commission recently published an update to its report on construction industry arbitration, focusing on recommended tools and techniques for effective management. The report is a helpful reminder for practitioners and arbitrators of the procedural mechanisms available which are particularly relevant to the conduct of arbitration in the construction sector.
In construction disputes, a significant amount of legal time (and therefore expense) is often spent simply locating and trying to understand the relevance of key documents because of poor document management practices throughout the project lifecycle. Establishing clear guidelines for document management and information collection is critical and will assist contractors and suppliers in making and evidencing claims in arbitration.
The expert phase is often the most critical, and sometimes costly, part of the arbitration process. Thus, choosing the right expert is crucial. This means ensuring not only that the expert has the appropriate qualifications, technical expertise and reputation in the relevant field, but also (if possible) suitable experience of the dispute process and of writing expert reports and giving evidence in adversarial proceedings. This article offers some practical tips for managing party-appointed experts in arbitrations.
The New York Appellate Division has reaffirmed that the manifest disregard doctrine is a "severely limited… doctrine of last resort" that requires more than a mere error of law to warrant vacating an arbitral award. This case involved the acquisition contracts between Daesang and NutraSweet, under which NutraSweet could rescind the deal if it was sued for antitrust law violations. After NutraSweet exercised this right, Daesang commenced an arbitration proceeding for breach of contract.
Dispute resolution for multi-contract projects: avoiding parallel proceedings and conflicting decisionsInternational | 23 May 2019
Construction contracts are often part of a wider suite of project contracts, involving multiple, overlapping parties. This intertwined suite of contracts means that when a dispute arises, it arises under multiple project contracts, which can be difficult to deal with. Choosing arbitration as the dispute resolution procedure for each project contract – and ensuring that the arbitration agreement in each project contract is consistent – will help parties to achieve consolidation of future disputes under different project contracts.
Unbeknown to many, Section 1782 of Title 28 of the US Code permits parties to obtain discovery in the United States in aid of non-US legal proceedings, including – in some instances – international arbitrations. Such discovery can include documents and sworn testimony (eg, depositions). In conducting an arbitration seated outside the United States (or other non-US legal proceedings), it is useful to understand the mechanics, requirements and key issues of Section 1782 discovery.
Gambia recently became the fifth nation to ratify the United Nations Convention on Transparency in Treaty-Based Investor-State Arbitration (Mauritius Convention). Eighteen other countries have signed the Mauritius Convention but have not yet ratified it. While no arbitrations subject to the convention have yet been initiated, if the current signatories were to ratify it, at least an additional 39 bilateral and multilateral treaties would become subject to the convention, unless expressly reserved.
It should be anticipated that new types of energy arbitration will emerge in 2018 and beyond, whereas others may decline. As always in the energy sector, an uncertain political landscape combined with cross-border investment in energy projects and fluctuating prices creates the model ecosystem for a whole spectrum of energy disputes to emerge globally, with arbitration remaining a key method of dispute resolution.
California Governor Jerry Brown recently signed into law Senate Bill (SB) 766, Representation by Foreign and Out-of-State Attorneys. The bill, which was passed 69-to-zero by the legislature, clarifies that foreign (ie, not licensed in the United States) and out-of-state (ie, licensed in a US jurisdiction, but not in California) attorneys can represent parties in international arbitrations in California, subject to certain conditions. SB 766 will take effect on 1 January 2019.
Existing proceedings in the national courts are inevitably experiencing the impact of the COVID-19 outbreak. Where possible, hearings have been delayed or relocated. However, with many lockdowns extended for the foreseeable future, hearings will still need to be held. As such, many national courts are looking into solutions to these issues, particularly technological ones.