AW-Kluwer Arbitration Blog
ArbitralWomen is an Affiliate of Kluwer Arbitration Blog (KAB). All articles posted on Kluwer Arbitration Blog by ArbitralWomen Members and listed below are also available here.
The Intersection of Corruption in International Arbitration and Discovery Pursuant to 28 USC § 1782
Ava Borrasso FCIArb
Section 1782 of Title 28 of the United States Code enables parties in foreign arbitrations to obtain US discovery to uncover evidence of corruption or bribery. Author Yasmine Lahlou examines how federal courts evaluate discovery requests under 28 U.S.C. § 1782 when allegations of illicit payments arise in international proceedings. The analysis covers jurisdictional requirements, discretionary factors, and the evidentiary impact of foreign-gathered materials on arbitral tribunals.
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Future Profits vs Cost: When do Tribunals Consider a Damages Claim Too Speculative?
International arbitral tribunals evaluate damages claims by balancing future lost profits against historical expenditure when claims are deemed speculative. Author Alexandra van der Meulen analyzes tribunal jurisprudence regarding the DCF method versus sunk costs, emphasizing the high evidentiary burden required to establish lost profits for early-stage or unproven projects. The analysis reviews the standards applied to assess causation, financial predictability, and valuation risk in international dispute resolution.
Recently published arbitral awards provide insight into Tribunals’ reasoning when the quantum of a claim is challenged for being too uncertain or speculative. Typically, Claimants will not only claim costs incurred up to the date of the breach or expropriation, but they will also claim compensation for future profits in…
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Vienna Arbitration Days: How to Deal with Biases and Cultural Differences and Other Practical Issues
Floriane Lavaud
The Vienna Arbitration Days 2019 gathered over 200 delegates to address cognitive biases, cultural differences, damage quantification, and artificial intelligence in arbitral proceedings. Floriane Lavaud and Edna Sussman report on discussions featuring tools like Arbitrator Intelligence and mock arbitrations to enhance transparency and mitigate decision-maker subjectivity. Panels explored how national legal training, cultural frameworks, and algorithmic bias impact witness credibility, evidentiary rulings, and overall procedural fairness.
In the beautiful surroundings of the Palais Niederosterreicher, the 200+ delegates at Vienna Arbitration Days (VAD) 2019 were warmly welcomed by members of the Organising Committee, representing ArbAut, VIAC, AYIA (the Austrian Yearbook of International Arbitration), ICC Austria, YAAP (Young Austrian Arbitration Practitioners), and UNCITRAL. Anna Joubin-Bret, UNCITRAL’s Secretary, provided…
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U.S. Supreme Court Holds That Individualized Employer-Employee Arbitration Agreements Must Be Enforced As Written
In Epic Systems Corp. v. Lewis, the US Supreme Court ruled that mandatory individualized employer-employee arbitration agreements with class action waivers must be enforced according to the Federal Arbitration Act. Author Cherine Foty analyzes the 5-4 decision, exploring the statutory tension between the Federal Arbitration Act and Section 7 of the National Labor Relations Act. The article evaluates the legal consequences of this ruling for employment arbitration practices and collective action waivers across US jurisdictions.
On May 21st, 2018, the Supreme Court of the United States in Epic Systems Corp. v. Lewis (“Epic Systems”) held in a 5-4 majority that one-on-one mandatory arbitration agreements imposed by employers upon their employees must be enforced as written in accordance with the Federal Arbitration Act (“FAA”). The…
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U.S. District Courts Rule Consent Awards Fall Within New York Convention
Ava Borrasso FCIArb
US District Courts in Transocean Offshore v. Erin Energy and Albtelecom v. UNIFI Communications ruled that arbitral consent awards recording party settlements fall within the scope of the New York Convention. Author Ava Borrasso examines these decisions, highlighting how federal judges confirmed jurisdiction under the Federal Arbitration Act despite the absence of explicit statutory language or reasoned determinations. The piece underscores the practical advantages of converting private settlements into enforceable consent awards.
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A Brief Analysis of the Legal Background Surrounding Arbitration and the Enforcement of Foreign Arbitral Awards in Brazil
Brazil established a pro-arbitration framework governed by the Brazilian Arbitration Act of 1996 and reinforced by the 2015 Civil Procedure Code for enforcing foreign arbitral awards. The analysis examines the mandatory homologation process conducted by the Superior Court of Justice, which verifies formal requirements and public policy compliance rather than reviewing the merits. This legal structure ensures alignment with the New York Convention and provides predictability for international commercial dispute resolution in Brazil.
In the past decade, the legal landscape in Brazil has changed significantly to better accommodate alternative dispute resolution methods, including mediation, conciliation, and arbitration. Brazil recently revised its Civil Procedure Code (Law 13.105/2015) and its arbitration law (Law 13.129/2015). It also enacted a mediation law (Law No. 13.140/2015). These major…
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Equal Access to Information & Justice: The Huge Potential of Online Dispute Resolution Greatly Underexplored (II)
The second part of the ICC Conference on Online Dispute Resolution examined ICT applications in human rights, digitised courts, public-private ODR platforms, and corporate dispute avoidance. Mirèze Philippe details presentations on human rights programs, institutional practices from ICC and CEDR, and EU consumer dispute regulations. The article emphasizes that simple online court designs, pilot projects, and public-private partnerships are crucial to making digital justice accessible.
As mentioned in Part I, a two-day conference on “Equal Access to Information & Justice, Online Dispute Resolution”, organised by the ICC took place in Paris on 12-13 June. Over 160 lawyers, magistrates, academics, researchers, dispute resolution organisations and online dispute resolution providers, from over 30 countries and representing each…
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Equal Access to Information & Justice: The Huge Potential of Online Dispute Resolution Greatly Underexplored (I)
The 17th International Conference on Online Dispute Resolution held at the ICC in Paris examined how technology and artificial intelligence can improve equal access to information and justice. Co-chair Mirèze Philippe highlights key contributions from global experts, including Alexis Mourre and Ethan Katsh, on transforming dispute avoidance, virtual hearings, and institutional e-case systems. The article addresses ODR ethical standards, human rights applications, and gender diversity among practitioners.
A two-day conference on “Equal Access to Information & Justice, Online Dispute Resolution”, organised by the ICC took place in Paris on 12-13 June. Over 160 lawyers, magistrates, academics, researchers, dispute resolution organisations and online dispute resolution providers, from over 30 countries and representing each continent attended. The conference was…
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Changes in the Arbitration Law: Greater Certainty for Consumers Comes with Greater Control over Arbitration in Bulgaria
Amendments to the Bulgarian International Commercial Arbitration Act introduced a strict prohibition on arbitrating consumer disputes to protect individual consumers. The article examines how the legislative changes invalidate consumer arbitration clauses, establish judicial oversight, and impose administrative penalties on non-compliant institutions. This regulatory overhaul ensures enhanced consumer protection while restricting the scope of arbitrable matters under Bulgarian law.
Since the end of January 2017, a new law amending and supplementing the Code of Civil Procedure became effective (the “Law”). It also provides for amendments to the International Commercial Arbitration Act (“ICAA”) and to the Consumers Protection Act (“CPA”). Below is a summary of some of the key changes…
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Possible Sources Of Disagreement Between Quantum Experts In Discount Rate Estimation: A Review Of ICSID Awards
Philippe Sales
Disagreements among valuation experts in ICSID arbitrations primarily stem from differing methodologies in calculating the Weighted Average Cost of Capital (WACC) when applying Discounted Cash Flow models. Authors Juliette Fortin and Philippe Sales analyze published ICSID awards to illustrate how experts diverge on components like equity risk premiums, country risk adjustments, and capital structure assumptions. This review highlights key technical drivers behind contrasting quantum assessments in investment treaty disputes.
Quantum experts often rely on the Discounted Cash Flow (DCF) approach to assess losses. The DCF approach is one of the most widely-used and accepted valuation methods, thanks in large part to its flexibility and the fact that it can be tailored to accommodate a wide array of assumptions.
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