International Arbitration

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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.

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…

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.

Abdul Latif Jameel Trans. Co. v. FedEx Corp., No. 19-5315 (6th Cir. Sept. 19, 2019).

In the world of international arbitration, where document disclosure is already relatively limited compared to practices in federal and state court, 28 U.S.C. § 1782 — titled “Assistance to foreign and international tribunals and to litigants before such tribunals” — has been a commonly overlooked tool for obtaining useful evidence in support of an international arbitration. In broad strokes, the statute permits a federal district court to require a person within the district to provide documents or testimony for use in a proceeding in a “foreign or international tribunal.”

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.

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.

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.

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.

Published in The Construction Lawyer, Volume 39, Number 1 Winter 2019. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system…

Pepper Hamilton attorneys Albert Bates and R. Zachary Torres-Fowler contributed the United States Construction Arbitration chapter to the Global Arbitration Review (GAR) Know-How series. Launched in 2006, GAR is a leading resource on international arbitration news and community intelligence.

The GAR Know-How series — an online Q&A resource that provides…