In the July 2020 edition of Mealey’s International Arbitration Report, Albert Bates Jr., a partner in Troutman Pepper’s Pittsburgh office and head of the firm’s International Construction Projects Practice, offers his thoughts on developments in the field of international arbitration and the question of whether practitioners expect parties to continue to utilize the traditional

The U.S. Supreme Court issued a unanimous decision on June 1 in GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, holding that, in some circumstances, even nonsignatories to an agreement may invoke international arbitration. The Court ruled that the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) did not prohibit the application of the U.S. doctrine of equitable estoppel to permit the enforcement of arbitration agreements by nonsignatories. In doing so, the Court clarified that the doctrine of equitable estoppel recognized under Chapter 1 of the Federal Arbitration Act (FAA) for U.S. domestic arbitrations could also be applied to international arbitration proceedings governed by Chapter 2 of the FAA.

For parties who regularly engage in multi-tiered international commercial arrangements like the kind seen in GE Energy, the ruling expands the reach of international arbitration agreements and gives those parties greater clarity into their own ability to utilize international arbitration to resolve complex disputes.
Continue Reading Supreme Court Interprets New York Convention to Allow Arbitration Agreement Nonsignatories to Invoke International Arbitration

Days after the World Health Organization declared the COVID-19 outbreak a global pandemic, governments from around the world scrambled to enact measures aimed at mitigating the spread of the virus. In the United States, cities and states have enacted travel restrictions, issued shelter-in-place orders, and directed nonessential businesses to shutter. While all aimed at mitigating the spread of the virus, these measures will have an immense disruptive impact on businesses and industries around the world — the construction sector included.

As notices concerning force majeure, changes in law, and change orders swirl, parties should prepare themselves for how these disputes will be managed and resolved. The COVID-19 outbreak will rapidly reshape how the construction sector does business. This article offers our insight into just once facet of the construction industry: alternative dispute resolution and how the COVID-19 outbreak has and will affect construction disputes going forward.
Continue Reading ADR for Construction Disputes During COVID-19: How to Manage Dispute Resolution Before and After the Dust Settles

As the COVID-19 pandemic continues to upend carefully choreographed arbitration schedules, parties, counsel and arbitrators have expressed interest in the use of video-conferencing technology to manage remote arbitration hearings. And while arbitration is no stranger to video conferencing, the arbitration community has never sought to utilize this technology on the scale being imagined today. As a result, counsel and arbitrators have clamored for guidance on how to effectively structure and manage remote arbitration proceedings.

This post seeks to introduce readers to the “Seoul Protocol on Video Conferencing in International Arbitration” as a potential resource. Released in March 2020, but developed long before the COVID-19 global pandemic, the Seoul Protocol offers a standard set of protocols that counsel and arbitrators may turn to for guidance on how to address some of the logistical challenges presented by remote arbitration hearings. While not directly applicable to all circumstances involving video hearings, and principally targeted at international arbitration practitioners, the Seoul Protocol offers helpful default standards that may be more widely applicable to streamline video-conference proceedings.

Some of the key features of the Seoul Protocol are summarized below.
Continue Reading The Seoul Protocol: Guidelines for Remote Arbitration Hearings During the COVID-19 Outbreak

With the signing of the United Nations Convention on International Settlement Agreements Resulting from Mediation in August 2019, there has been a newfound focus on how parties can improve and expand the use of alternative forms of dispute resolution outside conventional litigation and arbitration proceedings.  Pepper Hamilton attorneys Albert Bates and R. Zachary Torres-Fowler contributed

This article was published in Law360 on December 4, 2019. © Copyright 2019, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.

On Nov. 21, the Queen Mary University of London School of International Arbitration, in partnership with the U.K.-based law firm Pinsent Masons LLP, released its ninth annual international arbitration survey focused on international construction disputes.

As a nod to the significance the construction industry plays in the field of international arbitration, the 2019 Queen Mary University survey marks the largest industry-specific survey its School of International Arbitration has ever conducted and offers insights that will undoubtedly be used for years to come.
While the survey data and accompanying report provide a granular level of analysis concerning a wide variety of topics, below are some of the key takeaways of interest to U.S. practitioners.

Continue Reading New International Arbitration Study Offers Construction Dispute Insight

Over the past decade, international arbitration has played an increasingly prominent role in the construction industry.  As contractors and owners pursue greater opportunities outside their domestic jurisdictions, international arbitration has provided parties with a reliable, flexible, and neutral forum to resolve disputes.  Indeed, a quick glance at the most recent statistics from any number of the leading international arbitral institutions, such as the International Chamber of Commerce and International Centre for Dispute Resolution, shows that construction arbitration accounts for one of the largest components of the institutions’ caseload.

Continue Reading International Arbitration and the Construction Industry: An Introduction to the Field of International Arbitration on October 11, 2019

BML Properties Ltd. v. China Construction America Inc., et al., 101 N.Y.S. 3d 597 (N.Y. App. Div. 2019)

On July 2, 2019, a New York appellate court upheld a lower court ruling by Justice Saliann Scarpulla, denying a state-backed Chinese contractor’s attempt to compel international arbitration arising out of a dispute involving the construction of the multibillion Baha Mar mega-resort in the Bahamas.  As a result of the ruling in BML Properties Ltd. v. China Construction America Inc., et al., 101 N.Y.S. 3d 597 (N.Y. App. Div. 2019), aff’ing No. 657550/2017 (N.Y. Sup. Ct. Jan. 24, 2019), the $2.25 billion lawsuit alleging “one of the largest construction-based frauds in this hemisphere” will remain in the New York courts.  As explained below, for those in the international construction industry, the case will be worth following.

Continue Reading New York Appellate Court Affirms Decision to Deny Motion to Compel Arbitration in Multi-Billion Dollar Construction Dispute

As many owners and contractors involved in the international construction industry are aware, international arbitration is a popular dispute resolution device for international construction disputes because, in part, international arbitration awards are, broadly speaking, enforceable in practically every jurisdiction in the world. This facet of international arbitration has been set out in the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) — a multilateral convention that requires the courts of the contracting states to recognize and enforce arbitration awards made by tribunals seated in other contracting states. Now, with 160 signatory states and the increasing popularity of international arbitration around the world, the New York Convention is widely viewed as one of the most successful international conventions ever.

Continue Reading New Conventions, New Problems?: A Pair of Recently Announced International Conventions Aim to Replicate the Success of the New York Convention

Gainesville Mech., Inc. v. Air Data, Inc., No. A19A0518., 2019 BL 229069 (Ga. Ct. App. June 19, 2019)

The First Division of the Georgia Court of Appeals affirmed a superior court’s decision to confirm an arbitration award against Appellant Gainesville Mechanical, Inc. (“Gainesville”) because Gainesville failed to show that the arbitrator manifestly disregarded the law governing the “modified total cost” approach to damages.

Continue Reading Georgia Court of Appeals Affirms Superior Court’s Confirmation of Arbitration Award, Finding That Arbitrator Did Not Manifestly Disregard Law Governing the “Modified Total Cost” Approach to Damages