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
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 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.
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.
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.
A disgruntled party on the losing end of an award will sometimes seek to have the award annulled or set aside at the seat of arbitration. However, even if such a challenge at the seat is successful, that is not necessarily the end of the matter. Awards that are seemingly 'dead and buried' can sometimes be resurrected or haunt the losing party in other jurisdictions where enforcement of the award is sought.
In recent years, many of the leading arbitral institutions have amended their rules in order to make arbitration more responsive to users' needs. A key development has been the introduction of emergency arbitrator procedures, which enable parties to obtain urgent relief before the substantive tribunal is formed. These new developments are attracting significant attention from parties and arbitrators – but have enforcement mechanisms kept pace?
Although institutional rules arguably empower arbitral tribunals to streamline procedure and summarily dispose of claims or defences as part of their general case management authority, the trend is for institutional rules to expressly recognise such powers. But do these procedural innovations aimed at cheaper and quicker arbitrations come at the price of a binding and enforceable award?
While there are cases that involve claims for declaratory relief or specific performance, disputes are most often about payment. A claimant goes into battle – spending time and money to develop strong arguments and clever case theories – only if it expects the proceedings to result in a payout. There are several strategic steps that in‑house counsel can take throughout the process to maximise their chances of securing payment.
There are two principal treaties which govern the enforcement of international arbitral awards in foreign jurisdictions: the New York Convention and the Washington Convention. The success of international arbitration (both commercial and investment treaty arbitration) can be attributed in large part to the global enforcement regimes created under these treaties. While the New York Convention is broader in scope, it contains more grounds for resisting enforcement than the Washington Convention.
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.