Volume 1, Number 4
Fall 2013
THE
INTERNATIONAL
DISPUTE RESOLUTION
NEWS
A Publication of the International Litigation Committee, International Arbitration Committee, and
International Mediation Committee of the Section of International Law, American Bar Association
IN THIS ISSUE
Dear Members of the International Arbitration, International Litigation, and
International Mediation Committees of the Section of International Law:
Do’s and Don’ts for Counsel
and Arbitrators in International
Arbitrations in Switzerland
By James U. Menz
page 2
Thank you for your continued interest in and support of The International
Dispute Resolution News.
Cross-Cultural Mediations
By Gary P. Poon
Case Notes
Calendar of Events
page 9
page 17
page 28
In this edition, we have two articles that we believe will be of interest to you.
First, this issue includes an article on the “Do’s and Don’ts for Counsel and
Arbitrators in International Arbitrations in Switzerland.” As you will see, this
article has very practical tips for practitioners who are involved in arbitrations in
Switzerland. The second article addresses mediation of disputes between parties
from different cultures and how cross-cultural differences may affect the way in
which parties conduct themselves in the mediation and thus shape the course of
the negotiations.
As always, we have included a number of case notes, summarizing decisions that
may be relevant to your practice, as well as a calendar of events that may be of
interest to the committees’ members.
We hope that you will be attending the Fall Meeting in London and look forward
to seeing many of you there.
We invite submissions of proposed articles and case notes for future editions. If
you are interested in submitting an article or a case note for publication, please
contact Guy Lipe at [email protected].
Guy S. Lipe
Vinson & Elkins L.L.P.
Editor-in-Chief
Editor-In-Chief
Guy S. Lipe
Vinson & Elkins LLP
1001 Fannin Street
Suite 2500
Houston, Texas 77002-6760
[email protected]
Executive Editor
Sylvana Q. Sinha
New York, New York
[email protected]
Executive Editor
Gary P. Poon
Global InterMediation
3532 Chesapeake St., N.W.
Washington, D.C. 20008-2957
[email protected]
The International Dispute Resolution News
Fall 2013
Page 2
Do’s and Don’ts for Counsel and
Arbitrators in International Arbitrations
in Switzerland
By James U. Menz1
Introduction
Switzerland continues to rank near the top of the list of
the most popular international arbitration seats. Recent
ICC statistics, for example, show that for the period
2004-2011, Switzerland was the second-most chosen
seat (17.95% of all ICC-administered arbitrations)
behind only France (19.65%).2 Undoubtedly, the
appeal procedure against awards rendered in Switzerland
has contributed to the attractiveness of a Swiss seat.
Switzerland is the only major arbitration seat with only
one court (the country’s Supreme Court (Bundesgericht
or Tribunal Fédéral)) that considers petitions to set aside
international arbitration awards. The Court adjudicates
these petitions in an average time of 4-5 months. And
the Court is known for its pro-arbitration jurisprudence:
a recent in-depth statistical analysis showed only 6 to 7%
of setting-aside petitions are successful.3
The Supreme Court’s arbitration caseload has increased
significantly since the Swiss lex arbitri, the Private
International Law Act (“PILA”), came into force in 1989.
While in the 1990s, the number of arbitration-related
decisions was generally below 15 per year, that number
increased in the 2000s. In the last three years, there has
been a significant uptick, with the annual number of
decisions relating to international arbitration between
30 and 40. As has been noted, the increase reflects both
more commercial arbitrations seated in Switzerland
and significantly more sports-related cases arising from
decisions of the Court of Arbitration for Sport (“CAS”)
in Lausanne.
The Supreme Court’s arbitration jurisprudence is
important for practitioners. On the one hand, the Court
has filled gaps in, and judicially grafted a gloss onto, the
1
PILA with which practitioners should be familiar. One
of the reasons that the PILA is currently undergoing a
minor legislative facelift is to bring the text in line with
some of these jurisprudential pronouncements. On
the other hand, and although most setting-aside and
revision petitions fail, the Court’s analysis and holdings
contain valuable practical guidance for the conduct of
counsel and arbitrators contemplating or conducting a
Swiss-seated arbitration. This is the focus of this article,
with an emphasis on decisions from the last few years.
The aim is to distill a few general “do’s and don’ts,”
with three caveats: first, given the large number of
cases and issues decided, the selection reflected herein
is not comprehensive. Second, this article necessarily
condenses and simplifies what are often complex fact
patterns and fairly lengthy reasoning, and it focuses on
practical aspects rather than doctrinal developments.
And third, there is no general principle of stare decisis.
However, the Court has displayed a keen awareness of
the fact that its jurisprudence has a direct impact on
the standing of Switzerland as a seat in international
arbitration; of the specificity of international arbitration;
and of the reception of its rulings among practitioners
and commentators. When it does appear to deviate from
previous decisions, the Court has displayed an eagerness
to carefully explain these departures.
1. Counsel Diligence: Satisfying the Duties of
Investigation and Advocacy
The Court has repeatedly demanded a very high level
of diligence of counsel during the arbitration. This
includes, among other things, a duty to investigate
facts that are relevant to the party’s case. The issue of
what a party could and should have done during the
proceedings becomes particularly relevant in actions to
revise arbitral awards. Under Article 123(2)(a) of the
Federal Tribunal Act, which is applicable by analogy to
international arbitral awards rendered by Swiss-seated
tribunals, revision may be requested if “the applicant
subsequently learned of new material facts or discovered
decisive evidence which he was unable to submit in the
initial proceedings.”4 The Court has repeatedly held
James Menz is an associate in Schellenberg Wittmer’s Dispute Resolution Group in Zurich. His main area of practice is international commercial arbitration and litigation.
He regularly represents clients in international arbitration and alternative dispute resolution proceedings. The author wishes to thank Simona Bless, BLaw, for her valuable
research assistance.
2
The ICC statistics are available at http://www.iccwbo.org/.
3
Felix Dasser, International Arbitration and Setting Aside Proceedings in Switzerland: An Updated Statistical Analysis, ASA Bulletin 2010, p. 444 et seq.
4
For a full discussion of this remedy, see Nathalie Voser & Anya George, Revision of Arbitral Awards, ch. 3 in Post Award Issues, ASA Special Series No. 38 (Pierre Tercier, ed. 2011).
The International Dispute Resolution News
Fall 2013
Page 3
that “revision is an extraordinary legal remedy and is not
intended to continue a prior proceeding.”5 Parties must
show that they were unable to proffer evidence in the
arbitration despite exercising due diligence.
In applying this standard, the Court has held that parties
are charged with knowledge of information that is
publicly accessible, using reasonable efforts.6 Moreover,
parties must exhaust their legal remedies to obtain
potentially relevant information. This may include
having to file requests for document production in the
arbitral proceedings.7 An oral request will probably be
insufficient.8 It would seem to follow from the practice
that if other procedural options for the taking of
evidence are available (for example, an action under 28
U.S.C. 1782), a party may well be charged with having
to undertake them. If the arbitral tribunal ignores a
party’s request, it may even be necessary to file a petition
to set aside an award to preserve the later possession of
the document(s) as a reason for revision.9 Parties must
also procure witness testimony on issues that they should
recognize are relevant and material to the case.10
The same applies to expert evidence. If they are reasonably
ascertainable, parties must pursue even novel or littletested scientific theories during the arbitration. They must
be able to demonstrate that they sought to determine
the availability of those theories and of expert testimony
applying them to the case.11 However, the Court has
left open whether an expert report applying scientific
methods discovered or developed after the award was
rendered qualifies as new evidence justifying revision.12
Diligence during the arbitration also becomes relevant
in actions to set aside arbitral awards. Here, the rule
of thumb is “speak now or forever hold your peace.”
One of the principles flowing from the general duty
to act in good faith is that parties must promptly raise
any objections to perceived procedural violations. This
5
7
8
9
6
10
12
13
14
15
16
17
11
Decision 4A_144/2010 of 28 September 2010.
Decision 4A_763/2011 of 30 April 2012.
Id.
Decision 4A_237/237 of 6 October 2010.
Id.
Decision 4A_212/2010 of 7 April 2011.
Decision 4A_144/2010 of 28 September 2010 (Pechstein case).
Decision 4A_105/2012 of 23 July 2012.
Decision 4A_682/2011 of 31 May 2012.
Decisions 4P.282/2011 of 3 April 2012 and 4P. 146/2005 of 10 October 2005.
Decision 4A_16/2012 of 2 May 2012.
Decision 4A_348/2009 of 6 January 2010.
Decision 4A_682/2011 of 31 May 2012.
principle is reflected in many institutional arbitration
rules, including Article 33 of the ICC Rules, Article
32 of the UNCITRAL Rules, and Article 30 of the
Swiss Rules. The Supreme Court routinely invokes it
as a reason to deny setting-aside petitions. The Court
has explained that it is contrary to good faith to raise a
procedural objection only in the challenge proceedings,
given that if it had been raised during the arbitration,
the arbitrators would have had an opportunity to correct
it. It has also reasoned that a party abuses the law if it
holds arguments “in reserve” in the event of an adverse
outcome of the arbitration.13 While the Court has stated
that an exception might apply where the procedural
error is irreparable or particularly serious,14 the case law
is not sufficiently established to take the (deliberate) risk
of relying on this exception.
Thus, to help insulate the award from challenge, it is
good practice for arbitrators, prior to closing a major
procedural step (like a hearing) and again before formally
closing proceedings, to confirm with the parties that they
have no procedural objections and to memorialize this
confirmation in the award.15 In one recent case, counsel
for the party that later filed a petition to set aside the
award responded to such question by stating that
“everything is ok, I do not have any complaint.” The party
was deemed to have waived its objection.16 In another
recent decision, a party objected to the limited scope of
the first report by a tribunal-appointed expert based on
the lack of authenticity of a document, but did not repeat
that objection following a second report by the same
expert, but rather presented arguments independent of
the alleged lack of authenticity. Because it failed to repeat
its objection, argued independently of the complainedof subject matter, and did not contend that its right to be
heard had been violated, the party, too, was deemed to
have waived its right to object.17 Counsel is well-advised
to state their objections to particular procedural steps
The International Dispute Resolution News
Fall 2013
Page 4
clearly and explicitly. For example, a recent case found
that by asking only an understated question, counsel
had not raised its concerns about the tribunal’s efforts to
procure the attendance of a witness sufficiently clearly.18
Hence, if a party is of the view that its right to be
heard or right to equal treatment has been violated, it
is good practice to raise this objection early, repeatedly,
and explicitly. As an additional precaution, it may be
advisable to object to the closing of the proceedings.19
Not infrequently parties will seek to challenge the award
based on the alleged lack of independence by one or
more arbitrators. In this respect, the Court has cited with
approval the 2004 IBA Rules on Conflicts of Interest in
International Arbitration, and has held that the same
requirements of independence and impartiality apply to
the party-appointed arbitrators as to the chairperson.20
However, counsel cannot rely on arbitrator disclosures
alone. Counsel’s duty of diligence includes seeking to
confirm information learned from other sources about the
independence on an arbitrator.21 Moreover, parties must
substantiate allegations of lack of independence, such as
those based on previous appointments. Therefore, it is
essential that counsel seek to establish all pertinent facts
as soon as possible, and ideally, during the institutional
appointment procedure.22 And the duty of inquiry
may include having to directly question the arbitrator
on potential grounds for challenge.23 Counsel should
consider invoking whatever institutional challenge
procedure is available early, i.e., before every potential
ground for challenge is determined.24 Parties now have
a procedural right to file responses to observations made
by the other party before the Swiss Supreme Court, and
they apparently are making use of this opportunity.25
This right may well be a de facto requirement, lest
parties do not leave unchallenged denials of a lack
of independence.26
18
21
22
23
24
25
19
20
26
28
29
30
27
Arbitral tribunals in Switzerland must observe two
fundamental precepts of due process: the right to be
heard and the parties’ equal treatment (see Articles
182(3) and 190(2)(d) PILA). Challenges to final awards
invoking these grounds often fail because the parties are
deemed not to have acted diligently.
For example, if a party expects outcome-relevant
factual or legal developments during the arbitration,
it is advisable to take procedural steps to ensure these
developments are taken into account. This may include,
for example, requesting a suspension of proceedings.27
The issue of submissions filed outside of the procedural
calendar is a recurring concern in international arbitration.
Out of an abundance of caution, parties should respond
to such submissions, seek clarification from the tribunal
whether it will consider the submission, seek an order to
strike it from the record, or take a combination of these
actions. Otherwise, the right to be heard will not be
violated if the arbitral tribunal relies on such submissions,
at least if the party had sufficient time to respond.28 The
Court has explained that parties are subject to a duty to
actively participate and that they cannot merely rely on
the arbitral tribunal to set deadlines for them to respond
to submissions by the other side.29
Another recurring practical issue is the scope of written
post-hearing briefs (if any). Arbitral tribunals have
different preferences. Some insist on short statements on
the hearing; others require that the parties summarize
their full case positions. In the latter event, a recent case
suggests counsel ought to ensure every central argument
that was raised in any previous memorial is raised again
in the post-hearing brief. Otherwise, it may risk that if
the tribunal disregards the omitted argument, on appeal
it will not prevail with an argument that its right to be
heard was violated.30
Decision 4A_407/2012 of 20 February 2013.
Decision 4A_150/2012 of 12 July 2012.
Decision 4A_234/2010 of 19 November 2010.
Decision 4A_458/2009 of 28 June 2010.
Decisions 4A_256/2009 and 4A_258/2009 of 11 October 2010.
Decision 4A_110/2012 of 9 October 2012.
Id. and decisions 4A_256/2009 and 4A_258/2009 of 11 October 2010.
Judgment of the European Court of Human Rights of 27 October 2010, Schaller-Bossert v. Switzerland, Application No. 41718/05; Christoph Hurni, How Arbitration-Friendly is
the Swiss Federal Supreme Court, in Christoph Müller & Antonio Rigozzi (eds.), New Developments in International Commercial Arbitration (2012).
Cf. Decision 4A_458/2009 of 28 June 2010.
Decision 4A_268/2009 of 13 October 2009.
Decision 4A_62/2009 of 22 September 2009.
Id.
Decision 4A_433/2009 of 26 May 2010.
The International Dispute Resolution News
Fall 2013
Page 5
2. Arbitrator Diligence: Assessing Evidence,
Addressing Arguments, Acknowledging Submissions,
and Acting in Good Faith
Recent decisions have also highlighted the need for
arbitrators to act diligently. This concerns, for example,
the taking and the assessment of evidence. The Swiss lex
arbitri and jurisprudence afford arbitral tribunals broad
discretion in this respect. Among other things, a Swissseated tribunal may properly not admit further evidence if
it deems the remaining requests to relate to allegations of
fact that are neither relevant nor material to the outcome
of the case, deems such requests inappropriate to prove
the alleged facts, or has already formed its opinion on
the basis of evidence before it and concluded by way
of anticipatory assessment that this opinion would not
change through further evidence.31 This should afford
arbitrators comfort and facilitate case management,
because it means, for example, that arbitrators need
not hear or admit every witness that a party may wish
to present.32
While the Court routinely invokes the wide discretion
that arbitrators enjoy, it also proceeds to review in some
detail whether that discretion was exercised appropriately.
For example, when an arbitral tribunal decided not
to take into account a witness statement because the
witness failed to appear at a hearing, the Court endorsed
this decision noting with approval that the tribunal had
not simply ignored the testimony but had reviewed and
weighed it against other record evidence before deciding
not to take it into account.33 In another case, a party
complained that the tribunal had refused to take a site
inspection requested by one party. The Court invoked
the anticipatory assessment principle and proceeded to
note that the decision appeared justified given that a site
inspection would not have been material to what was
principally a dispute over contract clauses unrelated to
anything a site inspection could have revealed.34 To help
insulate the award from challenge, where applicable,
31
arbitrators should memorialize the circumstances
demonstrating that their decision on taking evidence
reflects a considered judgment.
Under Swiss arbitration law, parties do not have a general
right to a reasoned award35 nor a fundamental right to
an award that explicitly addresses all of their arguments.
A party’s right to be heard is not violated if the arbitral
tribunal ignores arguments that are not material to the
outcome of the case, or if it addresses the argument
implicitly. However, an arbitral tribunal has at least a
minimum duty to examine and deal with the issues
raised.36 The Supreme Court in a challenge proceeding
will not simply credit the tribunal’s assertions. Rather, the
Court will rather carefully examine the award for whether
the argument was, in fact, material, and for whether it
was actually addressed.37 In particular, summarizing
a party’s position does not equate to having addressed
it.38 If one party provides further substantiation of an
argument that the other party rebutted in a previous
exchange of pleadings, the tribunal will have to address
that additional substantiation.39 The Court will scrutinize
awards for whether they adequately address factual,
legal, and quantum-related arguments.40 Arbitrators are
therefore well-advised to explicitly state how they have
addressed the Parties’ arguments.
It may sound trite, but a recent case illustrates that
arbitrators should as a matter of good practice acknowledge
receipt (or non-receipt) of submissions scheduled as part
of the procedural calendar. The Supreme Court recently
overturned a final award where the sole arbitrator,
apparently due to a software malfunction, proceeded
to decide the case without taking the submitted posthearing brief into account.41
The Court also recently had reason to confirm that
arbitrators are under a duty to act in good faith toward
the parties. For example, this duty precludes a tribunal
Decision 4P.23/2006 of 27 March 2006
The Court also recently decided that it was proper for an arbitral tribunal to disregard an unsolicited submission submitted outside of the procedural calendar, and to refuse to hear
an additional witness where the request was belated. These decisions affirm the importance of a timetable and they, too, support institutions and arbitrators seeking to assert a
tighter rein on the duration of arbitrations. Decisions 4A_612/2009 of 10 February 2010 and 4A_162/2011 of 20 July 2012.
33
Decision 4A_682/2011 of 31 May 2012.
34
Decision 4A_150/2012 of 12 July 2012; see also decision 4A_528/2011 of 21 January 2012.
35
Decision 134 III 186 cons. 6.1.
36
Decision 133 III 235 cons. 5.2.
37
See, e.g., Decision 4A_433/2009 of 26 May 2010.
38
Decision 4A_46/2011 of 16 May 2011.
39
Id.
40
See Decision 4A_699/2012 of 17 April 2013.
41
Decision 4A_360/2011 of 31 January 2011.
32
The International Dispute Resolution News
Fall 2013
Page 6
from requesting that the parties undertake an action (like
submitting cost statements) without allowing reasonable
time to comply.42
3. Seeking Finality: How to Draft a Waiver of the
Right to Appeal
One of the particularities of the Swiss lex arbitri is that
under Article 192 PILA, provided none of the parties
have their domicile, habitual residence or a business
establishment in Switzerland, the parties may waive
their right to file a setting-aside petition before the Swiss
Supreme Court. While there was some question whether
a waiver under Article 192 PILA was compatible with
the right to a fair trial guaranteed by Article 6 of the
European Convention on Human Rights, the Supreme
Court has decided it is.43
A valid waiver can enhance the finality of the award
and shorten the time between the date of the award
and enforcement (although, of course, enforcement
can be resisted outside of Switzerland on the grounds
in Article V of the New York Convention). However,
especially at the contract-drafting stage, parties may be
reluctant to place their fate completely into the hands of
the arbitral tribunal by removing the (limited) check by a
state court that is otherwise available. But if parties wish
to invoke the waiver provision, they should do it right.
Even though this is a matter of case-by-case contract
interpretation under Swiss law, a number of recent
Supreme Court decisions provide drafting guidance.
In particular, Article 192 PILA requires an “express
statement,” and the Court has required the parties to
make “unmistakably clear the common will of the parties
to utilize the option within the meaning of Article 192.”
While the parties need not expressly invoke Article 192
PILA, a waiver is much more likely to be found if they
do.44 Language that has passed muster includes:
42
44
45
46
47
48
• The parties “exclude an annulment of the arbitral
award by the highest court of Switzerland according
to [or: in the meaning of ] Art. 192 of the Private
International Law Act”45
• “The parties expressly agree to waive their right to a)
challenge any determination(s) or award(s) by the
Arbitrator through set aside proceedings or any other
proceedings;…”46
• “All and any awards… of the Arbitral Tribunal …
shall be final and binding on the parties who exclude
all and any rights of appeal from all and any awards
insofar as such exclusion can validly be made.”47
• “The decision of the arbitration shall be final and
binding and neither party shall have any right to
appeal such decision to any court of law.”48
By contrast, the following provisions have been
considered insufficient to effect a valid waiver:
• “The arbitration award, even if passed by the majority
of the arbitrators, shall be final and binding for both
Parties hereto. Both Parties to this Contract shall
accept the award and proceed accordingly. All further
rules and procedures of the arbitration shall be in
accordance with the applicable Rules of Conciliation
and Arbitration of the International Chamber of
Commerce.”49
• Disputes are to be decided “exclusively of the
competence of the general courts and finally as per the
rules of the ICC.”50
Decision 4A_600/2010 of 17 March 2011.
Decision 4A_238/2011 of 23 February 2012.
Compare Decision 131 III 173 of 4 February 2005 with Decision 4P.98/2005 of 10 November 2005.
Decision 4A_631/2011 of 9 December 2011.
Decision 4A_514/2010 of 1 March 2011.
Decision 131 III 173 of 4 February 2005.
Decision 4A_486/2010 of 19 April 2011. The Court noted that the fact that the parties used the term “appeal” rather than “action for setting aside” was irrelevant, as such term was
to be given a generic meaning and not restricted to a specific type of recourse under Swiss law.
49
Decision 4A_464/2009 of 15 February 2010. The decision confirmed that a mere reference to the ICC Rules is insufficient despite Article 28(6) of the 1998 Rules (Article 34(6) of
the 2012 Rules), which provides that the parties “shall be deemed to waived their right to any form of recourse insofar was such waiver can validly be made.”
50
Decision 4A_258/2009 of 11 January 2010.
43
The International Dispute Resolution News
Fall 2013
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4. Do Not Surprise and Do not Be “Surprised:”
Relying on Law or Facts that the Parties Did
Not Expect
Arbitral tribunals seated in Switzerland generally adhere
to the principle of iura novit arbiter (the tribunal knows
the law), which means that the tribunal must on its own
motion both ascertain and apply the law.51 This also
means that the parties do not have a right to be heard on
the tribunal’s legal assessment of the facts presented by
the parties.52 However, as an exception to this principle,
the tribunal must allow the parties an opportunity to be
heard if it bases its decision on legal principles that the
parties have not argued “and the relevance of which they
could not reasonably anticipate.”53 As the Supreme Court
has articulated this principle, the question is whether the
application of the law has come as a surprise to both of
the parties.
Generally, a finding that an international arbitral tribunal
“surprised” the parties in applying the law is rare. Here,
like with respect to other issues, the Swiss Supreme
Court is guided by an appreciation for the particularity
of international arbitration. As it recently explained, this
includes “the mutual consent of the parties not to present
their case to state courts, the fact that arbitrators can come
from different legal traditions, and the desire to prevent
the argument of a surprising application of the law being
misused to obtain a review on the merits of an arbitral
award by the Supreme Court.”54 Recent jurisprudence
sheds light on what will or will not qualify as a surprise.
• There is no surprise if the arbitral tribunal relies
on legal or contractual provisions that go to a
central issue in the dispute, even if not expressly
invoked by one party; nor is there surprise if one
party has mentioned (even if not prominently) the
contractual or legal provisions.55
51
54
55
56
57
58
59
60
• In disputes of a financial nature, the parties should
expect the arbitral tribunal to take decisions on the
issue of the commencement date of interest.56
• There is no surprise if the arbitral tribunal engages
in a comparative law exercise (such as referring to
the CISG and/or Unidroit principles) to interpret
a term in a contract that does not exist in Swiss law
(such as the term “material breach”).57
• There is no surprise where one party invokes a
provision of Swiss statutory law to support one
argument and the arbitral tribunal applies the
invoked provision differently.58
• There is surprise if the tribunal applies a provision
of local employment law not invoked by either
party and which based on the facts of the case was
not reasonably foreseeable to be relevant.59 More
generally, this case suggests that although the parties
are not entitled to a correct decision and the Court
will not engage in a substantive review on issues of
law, the centrality of the rule of law or provision
to the dispute and the degree of error with which
it was applied may be important in determining
whether or not the arbitral tribunal’s application
will be characterized as surprising.60
In a recent decision, the Court also had occasion to
address the question to what extent there are similar
constraints on an arbitral tribunal’s assessment of the
facts. It decided that a tribunal need not inform the
parties ahead of time as to what the decisive character
of an element of fact is that will serve as the basis of
the tribunal’s decision, or which evidence the arbitrator
considers particularly probative. Moreover, parties have
no right to a warning that the arbitral tribunal does not
consider a particular document to prove a particular
proposition, or to make submissions on what the tribunal
considers unclear factual aspects of the case.61
See Bernhard Berger & Franz Kellerhals, International and Domestic Arbitration in Switzerland 374 (2d. ed. 2010).
Id. (citing Decision 4P.260/2000 of 2 March 2001).
Decision 4P.260/2000 of 2 March 2001.
Decision 4A_240/2009 of 16 December 2009.
Decision 4A_108/2009 of 9 June 2009.
Decision 4A_10/2010 of 20 December 2010.
Decision 4A_240/2009 of 16 December 2009.
Decision 4A_254/2010 of 2 August 2010.
Decision 4A_400/2008 of 9 February 2009.
See Diana Akikol, Die bundesgerichtliche Rechtsprechung zur Schiedsgerichtsbarkeit im Jahr 2009, in Jusletter 21 June 2010, available at www.jusletter.ch; Marco Stacher,
Rechtsprechung des Bundesgerichts in Schiedssachen (2009 und 2010), 2011 AJP 125.
61
Decision 4A_214/2011 of 18 October 2011.
52
53
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Fall 2013
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5. Beware of Sports: the Peculiarities of CASrelated Jurisprudence
A significant part of the increasing caseload before the
Supreme Court stems from sports arbitrations conducted
before the Court of Arbitration for Sport (“CAS”) in
Lausanne, Switzerland. It is fair to say that over the
last few years, there has been a trend with regard to
certain issues towards a split between the jurisprudence
applicable to sports and commercial arbitration. This
trend is most expressed in the formal requirement for
an arbitration agreement, where in sports-related cases
the Court has stated that — given the practical realities
of sports and sports contracts — it reviews an arbitral
tribunal’s jurisdiction with a “certain benevolence.”62
Practitioners should be aware of this trend and should
take it into account in sports-related disputes.
6. Conclusion
The Swiss Supreme Court’s arbitration case law provides
pertinent guidance to both counsel and arbitrators
sitting in Switzerland. Moreover, due to Switzerland’s
significance in international arbitration, even tribunals
seated abroad frequently rely upon the Court’s decisions.
Practitioners therefore should stay informed about case
law developments. There are an increasing number of
ways for English-speaking audiences to do so, including:
62
• The quarterly bulletin published by the Swiss
Arbitration Association (“ASA”), which includes a
case law section with a summary English-language
commentary. http://www.arbitration-ch.org/.
• The monthly jurisdictional email update published
by Practical Law Company, which includes detailed
English-language summaries and commentaries
of all cases rendered by the Swiss Supreme
Court relevant to international arbitration.
http://arbitration.practicallaw.com/.
• The biannual Swiss International Arbitration Law
Reports, which appears biannually and provides
English translations of the decisions relevant to
international arbitration rendered by the Swiss
Federal Supreme Court preceded by a head note.
http://www.jurispub.com.
• Electronic resources including Kluwer Blog (http://
www.kluwerarbitrationblog.com/), the Institute for
Transnational Arbitration report (linked at http://
www.kluwerarbitration.com/about-us.aspx),  and
various newsletters. 
Decision 4A_458/2009 of 20 January 2010. For other recent decisions manifesting this trend, see, e.g., 4A_640/2010 of 18 April 2011, 4A_548/2009 of 20 October 2010,
4A_246/2011 of 7 November 2011, 4A_428/2011 of 13 February 2012, and 4A_488/2011 of 18 June 2012.
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Cross-Cultural Mediations*
By Gary P. Poon**
In today’s global economy, your organization may end
up having a dispute with a foreign company whose
representatives come from a culture that is different from
your own. While parties to such transnational disputes
have traditionally resorted to international arbitration,
there is a growing trend to settle such disputes through
mediation. This is particularly true in the European
Union, because, as discussed in Chapter 1, the European
Parliament recently adopted a new EU Mediation
Directive to encourage and facilitate the use of mediation
to settle cross-border disputes within the European
Union.1 The Directive found, among other things:
Mediation can provide a cost-efficient and quick
extra-judicial resolution of disputes in civil and
commercial matters through processes tailored to
the needs of the parties. Settlement agreements
reached through mediation are more likely to
be enforced voluntarily and are more likely to
preserve an amicable and sustainable relationship
between the parties. These benefits become even
more pronounced in situations displaying crossborder elements.2
In preparing for the mediation of such transnational
cases, you need to not only analyze the business reasons
for the conflict, but also be sensitive to — and respect —
any cross-cultural differences that may have given rise to
the dispute in the first place.
The focus of this chapter is on how cross-cultural
differences might affect the way in which parties
conduct themselves and thus shape the course of the
mediation session. As one commentator put it, “There
are... more fundamental ways in which culture affects
the psychological patterns of behavior in negotiation.
*
If one thinks of the human mind as an information
processor, culture can be understood as the ‘software’
that determines the way information is processed.”3
A SENSITIVE TOPIC
Before we begin, there are a few cautionary remarks that
need to be made.
First, the topic of cross-cultural differences is complex
and raises delicate issues. On the one hand, you should
certainly be sensitive to the other party’s cultural
background. On the other hand, you need to be careful
not to engage in stereotyping. Except in the areas of
etiquette, customs, protocols, and cultural taboos, you
will not find in this chapter any generalizations about
how a certain ethnic group might behave, for that would
be best left to anthropologists and sociologists.4 Rather,
what you will see are how cultural differences might
affect the parties’ attitudes, behaviors, and expectations
in the course of mediating a dispute.
Second, it is important not to overstate cultural differences
in transnational commercial disputes, especially those
involving multinational corporations. In such cases,
cross-cultural differences between the parties may not
necessarily manifest themselves in a strictly business
environment as a result of market globalization and the
education or training of executives in countries other
than their own, among other factors. Nevertheless, you
should be sensitive to such cultural differences because
they might still exist beneath the surface of the dispute
or reveal themselves in subtle ways.
Finally, we need to have a clear concept of what we mean
by “culture.” A search of the term on the Internet will
quickly turn up a confusing array of definitions. Writing
in the context of international diplomatic disputes, one
noted author observed: “The confusion arises not only
from the difficulty of the term itself and from the plethora
of ways in which it has been theorized and explained
(or explained away) but also from the way culture has
Previously published as a chapter in Gary P. Poon, The Corporate Counsel’s Guide to Mediation (American Bar Association 2010) and translated into Russian in 2012.
All rights are reserved by the author.
**
Gary P. Poon is a lawyer, business adviser, and mediator, and is an editor of this publication. He provides legal and strategic advice to foreign and domestic companies,
philanthropic foundations, nonprofit organizations, and private clients. He can be reached at [email protected].
1
See Duncan H. Cameron, “Europe: Recent Developments in Mediation,” News & Notes From the Institute for Transnational Arbitration (Winter 2008 Vol. 22, No. 1), at 6.
2
EU Mediation Directive, Preamble ¶ 6.
3
Bühring-Uhle, Kirchhoff, & Scherer, Arbitration and Mediation in International Business, at 145.
4
See, e.g., David W. Augsburger, Conflict Mediation Across Cultures (Westminster/John Knox Press 1992), which contains numerous folktales on how conflicts are resolved in
different cultures.
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Page 10
been factored into the design stage of conflict resolution
processes.”5 As another political analyst wrote, “Culture,
in short, rests on shared meaning, permitting members
of a group ‘to perceive, interpret, evaluate, and act on
and in both external and internal reality.’ ”6
Yet you should note that there may not be a single
culture that is shown by the other side (or by your
own side for that matter). For example, how does one
define the “culture” of a multinational corporation that
is headquartered in one country, sells different types of
services and products in multiple countries, and employs
a diverse, multilingual workforce? Moreover, the group
of individuals with whom your company had dealings
may be from different cultures, even though they may
be employed by the same company. Finally, the specific
individuals themselves may be multicultural, having been
born in one country, raised and educated in another, and
now living and working in yet a third.
Indeed, even anthropologists sometimes have difficulty
coming up with an objective description of a particular
culture. As one professor of the Chinese culture wrote:
“Chineseness, like all axes of identity, is not a fixed
or bounded category, and its meaning only becomes
relevant as people use it as a tool to define themselves in
relation to others.”7
In order to talk about cross-cultural differences
intelligently, we will divide the topic into four parts:
(1) observing proper etiquette, custom, and protocol;
(2) understanding how cultural differences might affect
mediation; (3) knowing the importance of “saving
face;” and (4) differentiating between civil and common
law jurisdictions.
CULTURAL ETIQUETTE, CUSTOM,
AND PROTOCOL
While it is improper to engage in stereotyping, you
should, however, make an effort to observe the other side’s
cultural etiquette, custom, and protocol, as appropriate.
At a minimum, you should be aware of what the cultural
taboos are and avoid violating those taboos.
5
Observing cultural etiquette, custom, and protocol not
only shows respect, but, more importantly, may facilitate
the settlement of the dispute. One of the iconic images
from President Richard M. Nixon’s trip to China in 1972
was of Nixon eating with a pair of chopsticks. But the
Chinese also did their part to promote good U.S.-Sino
relations through protocol. As Secretary of State Henry
Kissinger recalled:
After my many trips the banquets, the toasts, the
music, have become commonplace, but I confess
that when on this first occasion [Nixon’s first banquet
in China] the Chinese Premier [Chou En-lai] began
circling the tables to toast each American member
of the official party individually, to the strains of
“America the Beautiful” played by musicians of an
army with which two decades before we had been at
war, I was deeply moved.8
Apart from the obvious do’s and don’ts, you may have
to delve more deeply into the other side’s cultural
perspectives, as some things may be more subtle. For
example, as one Sinologist wrote:
All languages are reflections of the emotional,
spiritual, and intellectual character of the people
who created them. The older, more structured, and
more exclusive a society and its language, the more
words it has that have deep cultural implications.
China is therefore a quintessential example of a
country in which “cultural code words” play a vital
role in the lives of its people. … Knowledge of
China’s code words is especially important to foreign
visitors, businesspeople, and others involved with
China because the cultural nuances of the terms are
often misunderstood and misused — or ignored
altogether — by foreigners. And just as often, the
Chinese presume that it is their cultural imperatives,
as defined by these words, that will be followed in
any relationship.9
As the Cold War began to thaw with the rise of perestroika
and glasnost, Alexander “Sasha” Bessmertnykh, the
Kevin Avruch, Culture & Conflict Resolution (United States Institute of Peace 1998), at 3.
Raymond Cohen, Negotiating Across Cultures (United States Institute of Peace 1997), at 12.
Andrea Louie, Chineseness Across Borders (Duke University Press 2004), at 21.
8
Kissinger, White House Years, at 1070.
9
Boyé Lafayette De Mente, The Chinese Have a Word for It: The Complete Guide to Chinese Thought and Culture (Passport Books 1996), at xv.
6
7
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former Soviet Union’s first deputy foreign minister
under Mikhail Gorbachev and an expert on the United
States, apparently told then General Colin Powell that
he (Bessmertnykh) watched CNN daily and had a week’s
worth of The New York Times and The Washington Post
delivered to him every Friday.10 “I take them all home
and I read them all weekend, because reports that we
get from our intelligence services simply don’t give me
enough insight into America and into what Americans
are about and what moves your country. So I have to use
things like CNN and reading your newspapers.”11
For ease of discussion, we have divided this area into
three general categories: (1) personal interaction, (2)
business protocol, and (3) cultural taboos.
Personal Interaction
This area relates to how members of a particular culture
interact with one another on a personal level. Again,
while you should be careful not to overgeneralize, there
are some guidelines that you could research and follow.
The most obvious area is how you should address
representatives from the other side. You should find out
ahead of time whether, in their culture, it is customary to
address people by their first names. Even it is considered
acceptable, you should still ask for their permission to do
so. If there is any doubt, err on the side of caution and
address them by their proper titles and last names.
But there are more subtle issues to take into account.
For example, some cultures consider it very rude not to
make eye contact, while others do not engage in direct
eye contact, especially between members of the opposite
sex. Another area is how much personal space you should
allow when speaking with a person from another culture.
In some cultures, a comfortable distance is about two
to three feet away; any closer and you are invading that
individual’s “personal space.” Other cultures, on the other
hand, prefer to stand less than an arms’ length away. In
some cultures, touching (within limits of course) may
even be acceptable, while other cultures may view that
as a taboo.
10
Business Protocol
Generally, with the globalization of business in the
past several decades, an international business protocol
has developed. However, there remain some cultural
differences and variations that you should take into
account. We will cover two areas: (1) business attire, and
(2) calling cards.
In most international business settings, the generally
accepted form of business attire for men is a conservative
“Western” suit, shirt, and tie, and, for women a dress,
pantsuit, or business suit. In warmer climates, “business
casual” and even short-sleeved shirts may be acceptable.
However, you should not be surprised to see — and
indeed should embrace — the wearing of customary
attire from a person’s own culture. A good example of
this in the international political realm is the President
of Afghanistan, Hamid Karzai, who often sports a greenand-white chapan (a traditional Uzbek coat) and a
ceremonial qaraqul hat.12
The handling of business cards should be done with
care. In many Western countries, particularly the United
States, calling cards are often given out with one hand as
if one were dealing a deck of playing cards. However, in
some Asian countries, such as Japan, it is important to
hand your business card to the recipient with both hands
and to make sure that the words are properly facing the
recipient right-side up. If you have frequent dealings with
businesses from an Asian country, you may already have
your calling cards translated into the language of that
country, in which case you should present your card with
the translated side facing the recipient. But in Thailand,
you must give and receive business cards with your right
hand only.
Cultural Taboos
Most important, you need to find out ahead of time what
the cultural taboos are and avoid violating them at all
costs. Some taboos are just common sense, while others
are less obvious. For example, it is considered impolite
in some countries, such as Egypt and Thailand, to show
the soles of your shoes, so you need to be careful when
crossing your legs.
Bob Woodward, The Commanders (Simon & Schuster 1991), at 53.
Id.
12
As this book is being printed, we are aware that there have been allegations of election fraud and corruption made against Mr. Karzai. By citing him as an example, we take no
position on these allegations, just as a good mediator would not pass judgment on a party’s character based solely on how he is dressed.
11
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Hand gestures can be particularly tricky. Forming a circle
by touching the index finger to the thumb with the last
three fingers raised is an “okay” sign in America, but
means “zero” or “worthless” in France. In Brazil, it is an
obscene gesture. Imagine the level of misunderstanding
that would occur if the mediation involved parties from
these three countries and this hand signal were flashed
by the American!
need to “get to the point.” By contrast, those preferring
a more indirect way of exchanging ideas rely more on
gestures, body language, facial expressions, and even
metaphors. A negotiator favoring a more direct mode of
communicating would likely view those who use a more
indirect method as being evasive and noncommittal.
Conversely, the indirect negotiator would likely see the
direct speaker as blunt and brusque.
HOW CULTURAL DIFFERENCES MIGHT
AFFECT MEDIATION
For our purposes, we reiterate that we are not so much
concerned about the cultural characteristics of a particular
nationality or ethnic group; rather, we will focus on how
cultural beliefs, practices, and attitudes might affect the
course of any given mediation. Indeed, many experts
agree with the following premise:13
Consider the following exchange that took place (outside
of mediation) between two groups from two different
cultures after a lengthy discussion of various technical
standards in the parties’ industry.
Cultural differences tend to accentuate the impact
of the psychological impediments inherent in the
negotiation process. They create a significant barrier
to effective communication because they exacerbate
the potential for misunderstandings and increase the
time and attention required for the explanation of
issues, positions, and interests.
Thus, the more you understand how cultural differences
could adversely affect the conduct of mediation, the
better able you are to deal with such impediments and
pave the way toward a successful settlement.
Group #1: So what format can we agree on?
Group #2: The best for the consumer.
Group #1: So, does that mean we can agree on the
XYZ standard?
Group #2: The most efficient standard shall be chosen.
Group #1 came away thinking that the negotiations
had failed, while Group #2 thought that Group #1 was
being too pushy. It turned out that, on the next day,
Group #2 issued a press release that it had “chosen” the
XYZ standard.
We would like to discuss five critical areas in which crosscultural differences could hinder an effective mediation:
(1) mode of communication; (2) style of negotiation;
(3) approach to problem solving; (4) decision making
authority; and (5) expectation of outcome.
Related is the amount of emotion that a particular group
is willing to display in a negotiation. This runs the gamut
from being wholly detached and impersonal to showing
emotions and expressions. The cultural groups in the
former category will likely view mediation as just another
forum for engaging in business negotiations. Those that
lean toward the latter might see mediation as a venue to
vent their emotions.
Mode of Communication
A cultural group’s preferred mode of communication falls
on a continuum ranging from a direct, straightforward
approach to an indirect, circumlocutory one. Those
cultures that tend to converse in a more direct manner
Obviously, neither approach is any more correct
than the other. The point is to understand where
along the continuum your opposing party’s mode of
communication falls in relation to your own and to
make adjustments and accommodations accordingly.
13
Bühring-Uhle, Kirchhoff, & Scherer, Arbitration and Mediation in International Business, at 145.
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Style of Negotiation
Some cultures opt for a more formal style of negotiation,
while others favor a more informal manner. For example,
it may be acceptable in some cultures to literally and
figuratively “roll up one’s sleeves,” while in other cultures
it may take some time to warm up to that idea, if at all.
The level of formality or informality may be reflected
in, and influenced by, the size of the negotiating team.
Some groups like to bring a large contingency to a
negotiation, which in turn contributes to the formality
of the mediation. Other groups make it a point not to
“overstaff the team” so that the negotiations can proceed
less formally.
Approach to Problem Solving
According to sociologists, cultures can be divided into
“individualistic” or “collectivistic” ones.14 As their names
suggest, individualistic cultures emphasize the importance
of the individual self, while collectivistic cultures place
greater importance on the larger group within which the
individual exists, such as the person’s family, community,
and, in the business context, the corporation.
Those that come from the individualistic end of the
spectrum tend to view conflicts as an individual offense
and would thus try to separate the people from the
problem. In contrast, those falling on the collectivistic
side would likely view conflicts as a group problem
and would therefore see the people and the problem
as interrelated.15
Thus, a negotiator coming from an individualistic culture
would have a tendency to “attack” the issues with proposed
solutions. Such an approach may be misinterpreted by
the person from a collectivistic culture as an assault to the
persons involved in the dispute. Conversely, a party from
a collectivistic culture may avoid confronting the issues
directly for fear of offending the people involved; yet,
this may impress the negotiator from the individualistic
culture as being weak and indecisive.
14
Decision-making Authority
In some cultures, the decision to enter into an agreement
rests with a single individual, while others favor a more
collective decision-making process. If you are dealing
with the former, it would be helpful to find out in
advance who the decision maker is. Obviously, such a
search may be futile if you are dealing with the latter
form of decision-making process.
Related is the issue of whether the decision maker(s) will
be present at the mediation session(s). Some cultures will
delegate settlement authority to the negotiating team
(usually within certain bounds), while others would
prefer to have the team bring the proposed settlement
terms back to headquarters.16 It is therefore important
for you to find out whether the settlement team has
delegated authority to settle the case. This will not only
inform you as to how you may want to approach the
mediation discussions, but also help you manage the
expectations of your own decision maker(s) about what
to expect from the mediation session(s).
Expectation of Outcome
In addition to how decisions are made and who from
the other side makes them, you should have a good idea
of what the other side is willing to do (or not do) in
mediation. Members of highly individualistic cultures
will likely want concrete, measurable outcomes. Thus,
they would expect to enter into a settlement contract
that sets forth detailed terms of the settlement and, if
applicable, the precise actions that the parties promise to
do or not do in the future.17 From the point of view of
the person from a collectivistic culture, such an approach
may be viewed as unnecessarily stringent, rigid, and
perhaps even lacking in trust.
In contrast, persons from more collectivistic cultures
would much prefer an agreement in principle that lays
down general concepts or principles setting forth the
parameters of the parties’ future conduct. They assume
that the parties will know how to behave based on a
collective notion of what is to be expected.18 From the
Augsburger, Conflict Mediation Across Cultures, at 73-112.
Id. at 91.
As discussed in Chapters 3 and 5, some courts, such as the D.C. Superior Court, may have rules requiring that, absent leave of court, the person with decision-making authority be
physically present at the mediation, or, in exceptional circumstances, be available by phone. Thus, any cultural differences in this area would give way to court procedures.
17
Id. at 93-94.
18
Id.
15
16
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standpoint of the negotiator from an individualistic
culture, such an approach would be too vague and prone
to further disputes in the future.
IMPORTANCE OF “SAVING FACE”
There is no denying that “saving face” is more important
in some cultures than in others. Compare and contrast the
following quotations, the first from an English military
historian and the second from an American minister.
“Never corner an opponent, and always assist him
to save his face.” — Basil Henry Liddell Hart
(Deterrent or Defense: Advice to Statesmen 1960).19
“I’d rather see America save her soul than her face.”
— Norman Mattoon Thomas (Speech before antiwar
protest, Washington, D.C. November 27, 1965).20
Much has been written about the relative importance
of saving face in both individualistic and collectivistic
cultures. Generally, a person from an individualistic
culture sees himself as being solely or primarily responsible
for his own actions and thus any adverse consequences
arising from a conflict would have a negative affect on his
own self-esteem, if at all.
A person from a collectivistic culture, however, must not
only bear the responsibility for his own actions, but also
shoulder the blame for a larger group of people. Thus,
any negative fallout from a conflict would not only hurt
the individual’s self-esteem, but also cause him to feel
shame or lose face within his group.
nurtured in an ongoing process of give-and-take in
facework negotiations. In the West, there must be
a high consistency between public face and private
self-image; in the East, the self is not an individual
but a relational construct.21
In preparing for cross-cultural mediations, it is therefore
critical to understand how much importance your
opposing side places on saving face. The more the
other side values “face,” the greater the need to include
facework as one of the underlying interests to be
satisfied. As we have seen in Chapter 5, this may affect
how you go about preparing for and conducting yourself
at the mediation sessions — from developing settlement
options and drafting the mediation brief to making
your opening statement and evaluating the other side’s
settlement proposals.
Generally speaking, the greater a culture values facesaving, the more it desires preserving good relations.
“The objective is to settle the dispute in such a way as to
restore friendly relations, to regain a sense of harmony.”22
Thus, more than just reason, logic, or legal rights, you
must factor into the negotiations the need to maintain
good business and personal relationships after the case is
settled. As one professor of international relations put it:
What is significant for our purposes is that face-saving or
“facework” may be an integral part of some cross-cultural
mediations. As one author put it:
In contrast to the results-oriented American
model, it [the facesaving model] declines to view
the immediate issue in isolation; lays particular
stress on long-term and affective aspects of the
relationship between the parties; is preoccupied
with considerations of symbolism, status, and face;
and draws on highly developed communication
strategies for evading confrontation.23
The self in most collectivistic cultures is maintained
and defined through active negotiation of facework;
in contrast, in Western societies the self is grounded
intrapsychically in self-love, self-definition, and
self-direction. In the solidarity of a collectivistic
setting, the self is not free; it is bound by mutual
role obligations and duties as it is structured and
CIVIL V. COMMON LAW JURISDICTIONS
In handling cross-border disputes, you will likely
encounter situations where one party comes from a civil
law jurisdiction, while another from a common law
jurisdiction.24 We are including this topic in this chapter
on cross-cultural mediations, because a common law or
civil law tradition may, on a certain level, be a reflection
19
John Bartlett, Bartlett’s Familiar Quotations (16th ed. Little Brown & Co. 1992), at 692:21.
Id. at 655:3.
21
Augsburger, Conflict Mediation Across Cultures, at 86.
22
Id. at 97.
23
Cohen, Negotiating Across Cultures, at 217.
24
A discussion of jurisdictions based on Shari’a law is beyond the scope of this book.
20
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of that jurisdiction’s underlying culture. Conversely, the
fact that a party may be from one jurisdiction or the other
may, in turn, influence or affect how that party perceives
the case. As we noted at the beginning of this chapter,
culture can be broadly understood as the “software” that
determines how information is processed by a litigant.
Certainly, the fact that a party (and its attorneys) may be
used to a common law tradition or a civil law one may be
factored into how that party processes information, which
in turn may potentially affect the course of mediation.
Generally speaking, civil law jurisdictions — such
as France, Germany, and Austria — follow the
“inquisitorial” model, in which the court or tribunal
plays an active role and conducts its own inquiry into the
factual and legal issues of the case. On the other hand,
common law jurisdictions — such as England, Australia,
and the United States — adhere to an “adversarial”
system, whereby the court or tribunal assumes a more
passive role and allows the parties to present the facts and
submit briefs on the law.
While these two prototypes no longer exist in their
purest form, nevertheless “the ideal types of adversarial
and inquisitorial procedure still have great force
in shaping the minds of lawyers and are helpful in
explaining the contrasts encountered in the practice of
different nations.”25
Indeed, we have recently witnessed a rapid growth in
mediation in several common law countries, especially
in England and the United States. As discussed in
Chapter 3, many state and federal courts in the United
States have court-sponsored mediation programs, and
judges “strongly encourage” parties to avail themselves
of those programs.26 In some jurisdictions, the court can
even order the parties to engage in mediation.27
By comparison, civil law countries seem to be more
reluctant to embrace mediation as an alternative form
of settling disputes.28 “Compared with the common
law experience, mediation in jurisdictions such as
Germany, Austria, Denmark, Scotland, Italy, France, and
25
Switzerland has travelled, and is still travelling, a more
difficult path to recognition as a legitimate and valuable
alternative to litigation.”29
However, with the passage of the EU Mediation
Directive by the European Parliament, it is anticipated
that mediation in civil law countries — at least those in
the European Union — will gain more legitimacy and
acceptance, as one of the purposes of the EU Mediation
Directive is to put mediation “on an equal footing with
judicial proceedings.”30
Yet even as the gap in the development of mediation
narrows, there will likely remain some differences in
approach toward mediation between civil law countries
and common law jurisdictions. In civil law jurisdictions,
the “justice model” is prevalent — i.e., mediation is
conducted within the court proceedings before a sitting
judge who will not be the presiding judge at trial if the
case does not settle. In common law countries, however,
the predominant system is the “marketplace model,”
in which mediation is conducted by a professional or
court approved mediator. As one professor of dispute
resolution put it:
While it is true that a variety of models exist in all
jurisdictions, the justice model is more frequently
found in civil law jurisdictions and the marketplace
model in common law jurisdictions. The justice
model envisages mediation as an extension of the
service of the courts, and even where the mediations
may be outsourced to external mediators, the justice
system bears the cost. Conversely the marketplace
model extends the arm of the court into the private
sector and has contributed to the creation of the
new industry of private court-related mediation.
Moreover as common law countries have integrated
elements of civil law procedures such as judicial case
management and judicial settlement into their own
courts and tribunals, there has been a corresponding
introduction of elements of the justice model of
mediation into those institutions.31
Bühring-Uhle, Kirchhoff, & Scherer, Arbitration and Mediation in International Business, at 18.
See District of Columbia Superior Court’s Multi-Door Dispute Resolution Division, discussed supra.
27
Local Civil Rule 84.4(a) for the U.S. District Court for the District of Columbia provides that a district judge may refer parties to mediation: “(1) by encouraging litigants to
submit to mediation voluntarily and entering a consent order referring the case to the Circuit Executive’s Office, or (2) by requiring litigants to participate after giving them an
opportunity, in response to an order to show cause, to explain why mediation would not be appropriate in their case.”
28
Nadja Alexander, “Global Trends in Mediation: Riding the Third Wave,” reprinted in Global Trends in Mediation (Nadja Alexander ed., Kluwer Law International 2006), at 1-36.
29
Id. at 7.
30
Explanatory Memorandum to the EU Mediation Directive, at ¶ 1.1.2. See also Cameron, The Institute for Transnational Arbitration, at 6.
31
Alexander, Global Trends in Mediation, at 23.
26
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SELECTING A MEDIATOR
We have now come full circle to where we began,
namely drafting mediation clauses and selecting an
appropriate mediator. As discussed in Chapter 2, one of
the considerations you might want to take into account
in drafting a mediation clause is selecting in advance
the forum for any future mediation. In Chapter 4, we
suggested that you consider the candidate mediator’s
style of mediation, while being cognizant that the
terms “evaluative vs. facilitative” and “directive vs. nondirective” are merely labels and that a mediator may
not adhere fully to one style or another even in the
same mediation.
In practical terms, however, you may want to consider
that, if your dispute is in a civil law country and you
are confronted with the justice model, you might
expect the judge/mediator to take a more proactive
role in devising a settlement and getting you to accept
the proposal — much like the evaluative/directive style
of mediation. “Therefore even while exercising their
settlement function, civil law judges are required to lead
parties towards a solution consistent with the relevant
legal norms.”32
32
Id. at 22.
If, on the other hand, you are in a common law
jurisdiction and you are dealing with a “marketplace
model,” then many of the characteristics outlined
above with respect to satisfying underlying interests and
reaching a consensual settlement would likely apply —
namely, a more facilitative/non-directive mediation style.
Indeed, one of your more challenging tasks in handling
a cross-border mediation is selecting a mediator who not
only has good mediation skills, but also understands how
culture can affect how parties interact with one another,
perceive reality, and engage in problem solving. Chances
are that a mediator who has lived or worked in one or
more cultures and who speaks at least two languages is
more likely to have that cultural sensitivity. 
C A SE NOTE S
English High Court Upholds Tribunal’s
Jurisdiction on the Basis that Imprecise
ADR Provision Was Not an Enforceable
Condition Precedent to Arbitration1
Wah (Aka Alan Tang) and Anor v. Grant Thornton
International Limited and Ors [2012] EWHC
3198 (Ch).
England and Wales, High Court, judgment date:
November 14, 2012. Article date: December
11, 2012.
When an accountancy firm in Hong Kong was expelled
from the Grant Thornton (“GT”) network in late
2010, London-seated arbitration proceedings arose
in which two of the expelled partners contested the
tribunal’s jurisdiction. They argued that the contractual
ADR procedure represented a condition precedent to
arbitration and had not been fulfilled. The tribunal
found that it did have jurisdiction and the two partners
challenged that decision in the English High Court
under Section 67 of the Arbitration Act 1996.
The escalation provision called first for disputes to
be referred to GT’s Chief Executive for “amicable
conciliation.” The Chief Executive would then have one
month to resolve the dispute, failing which the dispute
would be referred to a panel of three members of the
Board. The clause also provided that arbitration could
not be commenced until one month after the dispute had
been referred to the panel (unless the panel determined
that it could not resolve it). The Chief Executive and all
Board members had been involved in the decision to
expel the partners in the first place, such that the Chief
Executive recused himself from the conciliation process
and no panel of the Board was constituted.
The tribunal had found (in summary) that the escalation
clause lacked essential qualities of a binding provision
for mediation or conciliation because it was “akin to an
agreement to agree because, in essence, the clause requires the
complaining party to negotiate with executives of [GT]…
There is no true third party involvement.”
The judge noted the tension “between the desire to give effect
to what the parties have agreed and the difficulty in giving
what they have agreed objective and legally controllable
The International Dispute Resolution News
Fall 2013
Page 17
substance.” In this context he listed some examples of
terms that are commonly found in commercial contracts
but which are not generally enforceable in English law,
such as agreements to negotiate in good faith.
He also noted that the escalation clause contained a
number of omissions, in that it did not provide any
guidance as to (for example) the form the conciliation
should take or what the Chief Executive or Panel were
obliged to do (if anything). Ultimately, the provisions
were “too equivocal in terms of the process required and
too nebulous in terms of the content of the parties’ respective
obligations to be given legal effect as an enforceable condition
precedent to arbitration.”
The key point to take away from this case is the
importance of providing clearly in escalation clauses what
precisely is required. As this case illustrates, reference to
general concepts such as “good faith” is unlikely on its
own to be sufficient (in English law governed contracts)
to make the clause binding. Certainty is also important
so that it is clear when arbitration may be commenced,
mitigating the risk of a jurisdictional challenge — and
the associated costs and delay. Finally, parties should
be aware that a well-drafted escalation clause can be a
bar to commencing arbitration for the duration of the
contractual ADR procedure — which may well be the
intention, but care should be taken to prescribe the
maximum duration of that procedure.
1
This case note was submitted by Chris Parker, Partner*, Herbert Smith Freehills New
York LLP, and Robert Rothkopf, Associate,* Herbert Smith Freehills New York LLP.
*
Admitted in England & Wales only.
Second Circuit Upholds Injunctions
Against Argentina Requiring Ratable
Payments to Bondholders1
NML Capital, Ltd. v. Republic of Argentina, 699
F.3d 246, 259-60 (2nd Cir. 2012).
The NML Capital, Ltd. (“NML”) dispute with Argentina
arises out of Argentina’s default on its external sovereign
debt in 2001, an event which has generated nearly ten
years of litigation in the United States District Court for
the Southern District of New York (“District Court”)
and has produced a litany of decisions from the Court
of Appeals for the Second Circuit (“Court of Appeals”).
CA S E NOT E S
The International Dispute Resolution News
Fall 2013
Page 18
NML and its co-plaintiffs (together, the “Plaintiffs)
were several holders of Argentinean debt who sought
to recover funds due on certain defaulted bonds. The
total estimated amount of Plaintiffs’ unpaid principal
and prejudgment interest under those bonds amounts
to approximately $1.33 billion. In 2005 and 2010,
Argentina initiated exchange offers by which holders
of its defaulted bonds could exchange their defaulted
bonds for new unsecured and unsubordinated external
debt (the “Exchange Bonds”) at a rate of 25 to 29 cents
on the dollar. In order to incentivize participation in the
exchange, Argentina stated in the exchange prospectus
that “existing defaulted bonds… may remain in default
indefinitely.” The Plaintiffs chose not to participate in
this exchange, and sought to recover the full amount of
the funds due on the defaulted bonds in litigation.
Pursuant to the remand, on November 21, 2012, the
District Court entered an order (“November 21 Order”)
clarifying the precise application of the Injunctions’
payment formula. NML Capital, Ltd. v. Republic of
Argentina, Nos. 08 Civ. 6978(TPG), 09 Civ. 1707(TPG),
09 Civ. 1708(TPG), 2012 WL 5895650 (S.D.N.Y. Nov.
21, 2012). Specifically, it held that “the obligation to
[P]laintiffs under the February 23, 2012 Injunctions
accrues whenever Argentina ‘pays any amount due’ under
the terms of the Exchange Bonds,” and explaining that
the next time Argentina makes interest payments that are
due on the Exchange Bonds, assuming that Argentina
pays 100% of what is then due on the Exchange Bonds,
it would be required to pay 100% of the total amount
“currently due” to Plaintiffs, which was about $1.33
billion. Id. at *2.
On February 23, 2012, the District Court entered several
injunctions (the “Injunctions”) collectively requiring
Argentina to make “ratable” payments to the Plaintiffs
whenever it pays the other bondholders who participated
in the debt exchange (the “Exchange Bondholders”), on
the basis of a clause in the original debt instruments
(the “Pari Passu Clause”) requiring that the payment
obligations of the Republic under the original bonds
“shall at all times rank at least equally with all its other
present and future unsecured and unsubordinated
External Indebtedness.”
Argentina appealed the November 21 Order, and on
November 28, 2012, the Court of Appeals entered a stay
of the order pending the appeal, set an expedited briefing
schedule, and scheduled oral argument for February 27,
2013. On December 4, 2012, the Court of Appeals
denied Plaintiffs’ motion to require Argentina to post
security in the amount of “$1.45 billion, or at least $250
million, on or prior to December 10, 2012,” as part of
the Court of Appeals’ stay of the November 21 Order.
The Court of Appeals has not yet issued a ruling on
Argentina’s appeal of the November 21 Order.
In October 2012, the Court of Appeals affirmed the
District Court’s Injunctions, finding that Argentina
had “ranked its payment obligations to the plaintiffs
below those of the Exchange Bondholders” in violation
of the Pari Passu Clause. NML Capital, Ltd. v. Republic
of Argentina, 699 F.3d 246, 259-60 (2d Cir. 2012). It
also held that the Injunctions did not violate the FSIA,
as Argentina had expressly waived its jurisdictional
immunity under 28 U.S.C. § 1605. It further found
that the Injunctions did not implicate the execution
and attachment provisions\ of the Foreign Sovereign
Immunities Act (“FSIA”), as the Injunctions “do not
attach, arrest, or execute upon any property” and “can
be complied with without the court’s ever exercising
dominion over sovereign property.” Id. at 262-63.
However, the Court of Appeals remanded back to the
District Court in order to determine “the operation of
the payment formula and the Injunctions’ application to
third parties and intermediary banks.” Id. at 265.
1
This case note was written by James E. Berger and Charlene C. Sun of King &
Spalding LLP.
Singapore High Court Rules that
Arbitration Clauses Can Bind
Third Parties1
Yong Kheng Long & Anor v Panweld Trading Pte
Ltd & Anor [2012] SGCA 59.
In a fascinating opinion authored by Judge Chan Seng
Onn, the Singapore High Court ruled on November
12, 2012 that an arbitration clause contained in a
bilateral contract can bind a third party under certain
circumstances if that third party has entered into a
supplemental agreement with the original contractors.
The pivotal factor in such a case, according to the
Singapore High Court, is whether or not the parties
C A SE NOTE S
intended for the arbitration clause to apply to the
supplemental agreement.
The immediate result of this ruling is to bind International
Research Corporation PLC (“IRCP”), a Thai company,
to an arbitration clause contained in a contract between
Lufthansa Systems Asia Pacific, a German aviation
industry I.T. services provider, and Datamat Public
Company, a Thai I.T. services provider.
Lufthansa agreed under the initial contract to provide
Datamat with an I.T. Maintenance, Repair, and Overhaul
System. This system was, in turn, to form part of an
Electronic Data Protection System that Datamat was
creating for Thai Airways. The contract stipulated that
disputes would be submitted to arbitration in Singapore
under the auspices of the Singapore International
Arbitration Centre (“SIAC”).
Subsequently, after Datamat realized that it could not
pay Lufthansa certain sums required under the contract,
all three parties signed a supplementary agreement. This
agreement stated that IRCP would be liable for Datamat’s
payments to Lufthansa on the condition that Datamat
paid IRCP the money it received under its contract with
Thai Airways. Although the supplemental agreement did
not contain an arbitration clause of its own, it contained
a clause stating that it was to be “annexed to and made
part of ” the initial contract.2
After IRCP failed to pay Lufthansa for a number
of invoices, Lufthansa initiated SIAC arbitration
proceedings against Datamat and IRCP in 2010.3 IRCP
objected on the grounds that the arbitration clause in the
initial contract, to which IRCP was not a party, did not
apply to the later supplemental agreement.
Nevertheless, an arbitral tribunal was constituted. The
tribunal dismissed IRCP’s objections, causing IRCP
to seek a declaration from the Singapore High Court
setting aside the tribunal’s decision.
The Court ultimately ruled that “whether IRCP is bound
by the arbitration agreement in the [initial contract]
depends entirely on the parties’ intentions, which are
to be objectively ascertained.”4 As the supplementary
agreement was explicitly “annexed to” the Cooperation
Agreement contained in the initial contract,5 he found
The International Dispute Resolution News
Fall 2013
Page 19
that the parties did, in fact, intend for the arbitration
clause to bind IRCP as well. He also suggested that, in
any case, it might be beyond the court’s power to set
aside a jurisdictional ruling by an arbitral tribunal, as the
UNCITRAL Model Law only provides for a court setaside of an “award.”6
1
This case note was prepared by Justin Bart, an international arbitration associate at
Weil, Gotshal & Manges LLP in New York City. He has experience in commercial
and investment arbitration matters, and has worked with clients from Europe, South
America, and the Middle East.
2
International Research Corp. PLC v. Lufthansa Systems Asia Pacific Pte. Ltd., [2012]
SGHC 226 (Nov. 12, 2012), Paragraph 79.
3
Datamat ultimately did not participate in the arbitration due to business
restructuring.
4
International Research Corp. v. Lufthansa Systems Asia Pacific, Paragraph 22.
5
Id. at Paragraph 79.
6
UNCITRAL Model Law on International Commercial Arbitration, Adopted 21
June 1985, Art. 34.
Indian Supreme Court on Trial by Media1
Sahara India Real Estate Corp. Ltd. & Ors. v.
Securities & Exchange Board of India & anr.
Supreme Court of India (2012) 10 SCC 603 (Dated
11.09.2012).
A constitutional bench (i.e. five judges — note that
judges in the Supreme Court of India sit in division
benches consisting of two judges of the Indian Supreme
Court held that a court may order prior restraint on
publication where such publication may interfere with
the administration of justice.
The facts giving rise to this case were that the Securities
and Exchange Board of India and Sahara Real Estate
Corporation Ltd. had been pursuing the possibility of a
settlement in a pending securities litigation when details
of their proposed settlement were leaked to the media and
subsequently flashed on major business news channels.
This prompted Sahara to file an application asking the
court lay down guidelines with regard to reporting of
pending matters. The Chief Justice thereafter constituted
a constitution bench of five judges to decide the issue of
reporting of ongoing cases in media, including reporting
of criminal trials.
Freedom of speech and expression is guaranteed by
Article 19 of the Indian Constitution. Similarly the right
of an accused to a fair trial is guaranteed by Article 21
of the Constitution. The Court, while balancing these
The International Dispute Resolution News
Fall 2013
Page 20
two competing fundamental rights in situations where
the media may influence a pending trial, restricted itself
primarily to the media’s reporting of pending criminal
cases. The arguments in this case were heard for about a
month and precedents from Canada, Australia, England,
the United States, and New Zealand were cited before
the Court.
The Court eventually held that, unlike the First
Amendment guarantee of free speech in U.S., reasonable
restrictions could be imposed on the freedom of speech
and expression under the Indian Constitution. On an
application by the accused, the courts may therefore, in
appropriate cases, order that a publication be postponed
to ensure that it does not obstruct, prejudice, or
otherwise interfere with the administration of justice.
The Court held that such postponement orders should
be issued only when there is a real and substantial risk of
prejudice to the fairness of the trial. However such orders
of postponement should be for a limited period of time
and should not disturb the content of the publication.
The Court also observed that such postponement orders
are a form of prior restraint and thus should be passed
only in situations where the salutary effects of such
orders outweigh the deleterious effects on the freedom of
expression. It is pertinent to note that prior restraints on
free speech were not permissible under Indian law until
this decision, which was decided at a time when excessive
media coverage and publicity of several criminal trials
had raised nationwide concerns about compromising
the principles of fairness of trials and the presumption of
innocence of the accused.
Prior to this decision, Courts in India tended to preserve
free speech and expression by striking down arbitrary
restrictions curbing the exercise of free speech. This
decision recognized the need to regulate free speech in
those rare cases where excessive media coverage of the
accused might affect the right to a fair trial.
1
This case note was prepared by Ajit Sharma, Counsel, JM Sharma & Co.,
Advocates & Solicitors, New Delhi. Ajit has extensive experience advising clients
on commercial and criminal disputes. Prior to joining JMS, Ajit was an Associate
at Dorsey & Whitney’s London office and a Senior Associate in Trilegal’s Mumbai
office. Ajit is reachable at [email protected].
CA S E NOT E S
Conduct of University Is Not
Attributable to the State1
ICSID Award of 25 October 2012 in the case No
ARB/08/11 of Bosh International, Inc and B&P Ltd
Foreign Investments Enterprise against Ukraine
The International Centre for Settlement of Investment
Disputes (“ICSID”) in its award of 25 October 20122
completely dismissed the arguments of an investor against
Ukraine. Bosh International, Inc, incorporated under
the laws of New Jersey, USA (“Bosh”), and its subsidiary,
B&P Ltd Foreign Investments Enterprise, incorporated
under the laws of Ukraine (“B&P”), had alleged breach
of a treaty between the U.S. and Ukraine concerning the
Encouragement and Reciprocal Protection of Investment
of 1996 (“BIT”).
On 29 January 2003, B&P had entered into a joint
venture contract (“Contract”) with Taras Shevchenko
National University of Ukraine (“University”) to
undertake a two-stage renovation and redevelopment
of the University’s property. Following the audit of the
General Control and Revision Office (state inspection
authorized to perform audits of entities receiving state
budgetary funds), which had revealed breach of the
Contract, the University initiated judicial proceedings in
the Ukrainian commercial court, in which it sought to
terminate the Contract. By the decision of the trial court,
which was subsequently upheld by the appellate and
Higher Commercial Court, the Contract was terminated.
Further, B&P was evicted from the real property.
Throughout the court proceedings in Ukraine, B&P
alleged that the Ukrainian Courts lacked jurisdiction
over the dispute on the basis that the case was subject
to investment arbitration under ICSID Convention.
Nonetheless, the University’s claim was considered on the
merits and decided in its favor by the Ukrainian courts.
In December 2007, Bosh and B&P filed a Request for
Arbitration with ICSID. In their filing, Bosh and B&P
requested that the Tribunal find that, inter alia, the
University had breached its obligations under BIT in the
manner in which the General Control and Revision Office
conducted its audit and enforced its conclusions and in
the manner in which University officials had failed to act
in good faith towards B&P by seeking to terminate the
C A SE NOTE S
Contract. Bosh and B&P also alleged that the Ukrainian
courts had failed to act consistently with the res judicata
principle, since the University filed subsequently two
similar statements of claim to trial court, and firstly the
court issued a ruling denying to open the proceeding,
while secondly the court opened the proceeding and
considered the case on merits. In opinion of Bosh and
B&P the trial court already considered the case, when the
University filed first statement of claim, and therefore the
same case could not have been considered second time.
Though the Tribunal determined the matter was within
its jurisdiction and judiciable under the Article II(3)
(c) of the ICSID Convention, the Tribunal concluded
that the conduct of the University was not attributable
to Ukraine under Article 5 of the International Law
Commission Articles on State Responsibility, because
both of the following conditions had to be met: 1) the
University had to be empowered by the law of Ukraine
to exercise elements of governmental authorities, and 2)
the conduct of the University had to relate to the exercise
of that governmental authority.
The Tribunal confirmed that the first condition had been
met, since the University, inter alia, provided higher
education services and managed State-owned property in
accordance with Presidential Decree, the Law on Higher
Education and the Charters of 2000 and 2009, which
constitute forms of governmental authority. However,
the second condition was not met. In its reasoning,
the Tribunal distinguished “governmental activity”
of the University, being attributable to the State, and
“commercial activity,” performed autonomously by
the University.
Moreover, the Contract contained a dispute settlement
provision, which referred all disputes arising from the
Contract to Ukrainian courts.
1
This case note was submitted by Markian Malskyy and Tetyana Berezenska. Markia,
a partner at Arzinger, specializes in providing legal support in investment projects
(commercial, real estate and corporate law matters) as well as representing clients’
interests before judicial authorities of Ukraine and dispute settlement under the
procedures of commercial and investment arbitration. He can be reached at
[email protected]. Tetyana, an associate in Arzinger, specializes in
corporate and M&A, real estate and construction, and dispute Resolution. Tetyana
can be reached at [email protected].
2
Award of the ICSID in the case No ARB/08/11 of 25 October 2012, available at
http://italaw.com/sites/default/files/case-documents/italaw1118.pdf
The International Dispute Resolution News
Fall 2013
Page 21
The Italian Constitutional Court Rules on
the Legitimacy of Mandatory Mediation in
Commercial and Civil Matters1 — Ruling
No. 272/2012 —2
Following the Italian Legislative Decree No. 28/2010,3
the Constitutional Court of Italy (Corte Costituzionale)
ruled on October 24, 2012,4 with its reasoning released
on December 6 2012, on the legitimacy of mandatory
mediation in commercial and civil matters. The
Constitutional Court of Italy is a supreme court of Italy.
It passes on the constitutionality of laws with no right
of appeal.
The Court’s ruling was limited to provisions of the Decree
concerning mandatory mediation. The issues presented
to the Court were: (1) whether the Italian government’s
enactment of the Decree had exceeded its authority,
delegated by Article 60 of Law 69/20095 (“Act 69”);
(2) whether the Decree complied with the European
Community rules promulgated in Directive 2008/52/
EC; and (3) whether the costs of mediation mandated
by the Decree placed an excessive burden on those
seeking to mediate, thereby preventing access to justice,
guaranteed by Article 24 of the Italian Constitution.
The Constitutional Court ruled that the Italian
government had exceeded its legislative authority in
making mediation a mandatory precursor to trial. The
Court’s finding of illegitimacy was grounded on the lack of
legislative power of the Italian Government to introduce,
through article 5.1 of the Decree, the compulsory
nature of the mediation for the aforementioned matters.
Indeed, Act 69 had granted no specific authority for the
Government to introduce such mandatory mediation.
In doing so, the Court ruled on the excess of the authority
delegated, and not on the constitutionality of the
Decree’s compulsory mediation. Compulsory mediation
was thus stricken based on a procedural defect, which
could theoretically be cured.
Though it is no longer compulsory, the opportunity
for mediation still remains strong in the Italian
judicial system.
The International Dispute Resolution News
Fall 2013
Page 22
1
This case note was submitted by Francesca De Paolis. She is admitted to the Italian
Bar and is a Business Development and Communications Specialist at Tarter
Krinsky & Drogin LLP, working closely with the International Practice Group’s
Italian Desk. She can be reached at [email protected].
2
Editors’ Note: In the Spring 2012 Issue, the IDRN published a full-length article
entitled “Mediation Goes Mainstream in Italy.” This Case Note provides an update
of that article.
3
The Legislative Decree No. 28 was enacted in Italy on March 4, 2010 and entered
into force on March 20, 2010. Itwas intended to implement in Italy the 21 May
2008 European Mediation Directive (2008/52/EC), which seeks to promote and
regulate the development of Mediation throughout the European Union. The
Decree was also aimed at reducing the overload in the Italian legal system.
4
Constitutional Court Ruling No. 272/2012. The ruling can be read in its entirety at:
http://www.cortecostituzionale.it/actionPronuncia.do
5
Act 69 authorized the Government to adopt one or more legislative decrees on
mediation and conciliation in commercial and civil matters. According to the
Italian legislative system, the Parliament is the body that retains the legislative power
to enact legislation, such as Laws and Implementation Laws. Parliament could,
moreover, authorize the Government to adopt legislative acts (Legislative Decrees)
on certain highly complex technical matters outside the exclusive jurisdiction of
Implementation Law.
ICSID Tribunal Renders Record
Setting Award1
Occidental Petroleum Corporation and Occidental
Exploration and Production Company v. The
Republic of Ecuador (ICSID Case No. ARB/06/11),
Award, 5 October 2012.
In October of 2012, an arbitral tribunal constituted
under the auspices of the World Bank’s International
Center for the Settlement of Investment Disputes
(“ICSID”) ordered the Republic of Ecuador to pay
Occidental Petroleum (“Occidental”) more than U.S.
$1.7 billion in compensation for the loss of its interest
in a joint venture with state-owned PetroEcuador. The
Occidental award is the largest ICSID award to date, and
the first to exceed the $1 billion dollar mark.
In 1997, Occidental and Petroecuador entered into a
“participation” or production sharing agreement, under
the terms of which Occidental would bear all the risk
of exploration and development of a particular “block”
in the Ecuadorian Amazon. In exchange, Occidental’s
profits would be “dependent exclusively” on production
volume and, crucially, guaranteed against changes in
Ecuadorian tax laws. Following Occidental’s success in
an unrelated 2004 arbitration against Ecuador, and amid
mounting anti-American and anti-industry sentiment,
the Ecuadorian Government declared the termination
of Occidental’s contract on May 15, 2006, citing
Occidental’s earlier unauthorized assignment of partial
rights to another company through a 2000 “farmout”
CA S E NOT E S
agreement. Occidental sought arbitration before ICSID
pursuant to the U.S.-Ecuador Bilateral Investment Treaty
(“BIT”). Occidental claimed, in relevant part, that its
contract had been terminated without valid cause, that
it had been denied the “fair and equitable treatment”
guaranteed to foreign investors under international
law and the BIT, and that Ecuador had unlawfully
expropriated its investment.
The tribunal, constituted of Canadian arbitrator L.
Yves Fortier QC (President of the tribunal), French law
professor Brigitte Stern and New Zealand arbitrator David
A.R. Williams, QC, began by agreeing with Ecuador
that Occidental’s farmout agreement was unauthorized
and a breach of the participation contract. The Tribunal
observed, however, that Ecuador had suffered no actual
harm from the unauthorized transfer. As such, the
outright termination of Occidental’s investment was
contrary to international (and Ecuadorian) law requiring
a “proportionate” response to Occidental’s breach. The
Tribunal accordingly ruled that the termination of the
contract and ensuing seizure of Occidental’s assets had
been in breach of Ecuador’s BIT obligation to accord
“fair and equitable treatment” to foreign investment and
had, in fact, been “tantamount to expropriation.”
The Tribunal next turned to the valuation of Occidental’s
investment. In doing so, it relied on a Discounted
Cash Flow (“DCF”) analysis, “the standard economic
approach” to valuation of the fair market value of a
long term project that projected the cash flows that
would have been generated by Occidental’s investment,
but for Ecuador’s breach, and then discounted those
flows to a present value. The Tribunal simultaneously
rejected Ecuador’s call to assess the value of Occidental’s
expropriated investment by reference to the historical
revenues generated by “comparable” projects, instead
agreeing with Occidental that “‘each oil and gas property
presents a unique set of value parameters.’”
The Tribunal split over the DCF model’s inputs,
however. A key point of contention was whether the
tax stabilization clauses in the parties’ agreement should
apply in the context of a dramatic increase in oil prices.
Ecuador argued for the inclusion of a recently-enacted
“windfall profits tax” in the DCF model, on the ground
that the parties’ agreement had been made in anticipation
of much lower oil prices. Despite a vigorous dissent
C A SE NOTE S
from Professor Stern, the majority of the Tribunal firmly
rejected this line of argument. Reproducing the specific
volume-driven formulas from Ecuador’s agreement
with Occidental in their award, the majority ruled
that Ecuador “knowingly forewent the opportunity
to increase its participation in the case of a high price
scenario,” and held Ecuador to the contractual terms it
had agreed.
The Occidental award is not only significant for its
size. The award also affirms the primacy of the DCF
valuation method in investment arbitration and,
despite a dissenting view, signals that arbitral tribunals
will construe contractual terms strictly, even when this
disadvantages state respondents. The story is not over,
however. On October 11, 2012, Ecuador applied to
ICSID’s Secretary General seeking annulment of the
award. An ad hoc committee has since been appointed
to review the Occidental tribunal’s decision.
1
This case note was submitted by Carlos Ramos-Mrosovsky, a New York-based
associate in the international arbitration group at Freshfields Bruckhaus Deringer
US LLP, where his practice focuses on international investment and commercial
disputes. He previously worked in the litigation department of a major U.S. law firm
and is a 2007 graduate of Harvard Law School.
Second Circuit Clarifies E-Commerce
Contract Formation Requirements1
Schnabel v. Trilegiant Corp., No. 11-1311 WL
3871366 (2nd Cir. Sept. 7, 2012).
In a decision that underlines the importance of
an arbitration provision having a firm contractual
foundation, Schnabel v. Trilegiant Corp. has provided
some clarity in the often murky area of online contract
formation requirements.
At issue was whether an arbitration provision contained
in an email sent by the defendants (“Trilegiant”) to the
plaintiffs (“the Schnabel family”) following the formation
of an online contract was enforceable. The U.S. Court
of Appeals for the Second Circuit affirmed the District
Court’s decision holding that such an arbitration clause
was not enforceable.
Members of the Schnabel family were making some
unrelated online purchases when a hyperlink appeared by
‘Great Fun’, owned by Trilegiant, offering discounts on
The International Dispute Resolution News
Fall 2013
Page 23
goods and services for a monthly membership fee. The
Schnabels clicked on the link and were enrolled in the
service, without however having to reenter their credit
card information. They later discovered that they had
been charged a monthly fee for ‘Great Fun’ and brought a
class action alleging that Trilegiant had induced them into
paying for the service through unauthorized enrolment
practices. Trilegiant responded by moving to compel
individual arbitration, citing the arbitration provision
found in an email detailing “additional terms” that was
subsequently sent to the plaintiffs after their enrolment.
The question facing the Court was whether the plaintiffs
were bound to arbitrate the dispute in accordance
with the arbitration provision, which the defendants
asserted constituted a term in the parties’ contract. The
defendants argued that the plaintiffs had agreed to it by
enrolling, receiving the emailed terms at a later date, and
then failing to cancel their membership during their free
trial period.
The Court considered whether the arbitration provision
contained in the post enrolment email was sufficient
to put the plaintiffs on inquiry notice of the term
and whether the failure on the part of the plaintiffs
to subsequently cancel their membership could be
construed as an objective manifestation of their assent to
the arbitration provision.
The Court held that the unsolicited email was insufficient
to put a “reasonably prudent offeree on notice of the
term at issue.” It explained that the plaintiffs had not
expected to receive post enrolment terms via email
and that the terms were not sufficiently conspicuous as
they were “both temporally and spatially decoupled”
from the plaintiffs enrolment and use of the service.
Furthermore, the plaintiffs could use the service without
being confronted by, or having to acknowledge the
existence of, the emailed terms. A reasonable person in
the plaintiffs’ position could not therefore be expected
to make the connection between an unsolicited post
enrollment email and its potential impact on the parties
pre-existing contractual relationship. The court further
concluded that the failure by the plaintiffs to cancel the
automatic payment was too passive to demonstrate an
intent to be bound by the term and therefore could not
constitute assent.
The International Dispute Resolution News
Fall 2013
Page 24
Consequently, the Court found the arbitration provision
to be too remote for enforcement and affirmed the order
of the District Court denying the defendants’ motion to
compel arbitration.
1
This case note was submitted by Elizabeth Simos. Following her LLB Law
degree at The University of Surrey, Elizabeth completed the LLM in Corporate
and Commercial Law at The Centre for Commercial Law Studies, Queen Mary
University of London. She was awarded first place in the Clive M. Schmitthoff
Essay Competition for her work “The CISG: A Lost Cause in the UK?” and received
an Honorable Mention for her advocacy skills while finishing as a finalist in the
Eighteenth Annual Willem C. Vis International Commercial Arbitration Moot. She
has recently completed the Legal Practice Course at BPP Law School London.
The Plaintiffs of the Ecuadorian Amazon v.
Chevron: The Saga Continues1
Chevron Corp. v. Donziger, 2012 U.S. Dist. LEXIS
107693 (S.D.N.Y. July 31, 2012).2
The Second Circuit Court of Appeals has called the
dispute between the plaintiffs of the Ecuadorian Amazon
and Chevron one of the “most extensively told” stories
“in the history of the American federal judiciary.” Yet,
based on a ruling of July 31, 2012, that story may be
far from finished, as Judge Kaplan of the U.S. Southern
District of New York largely denied Chevron’s bid to
have an Ecuadorian court’s $18.2 billion judgment
declared unenforceable under the New York Uniform
Country Money-Judgments Recognition Act. So the
saga of this 19-year litigation, with no apparent end in
sight, continues.
From 1964 to 1992, Chevron’s predecessor — Texaco
and its subsidiary, Texaco Petroleum (together “Texaco”)
— extracted oil from the Lago Agrio region of the
Ecuadorian Amazon. The environmental impact of
Texaco’s 28-year oil-drilling was reportedly profound;
and in a 1995 settlement with the Republic of Ecuador
(“ROE”) and ROE-owned oil company, Petroecuador,
Texaco agreed to complete a $40 million remediation
of the Lago Agrio region. Texaco completed this
remediation by 1998, and in exchange, ROE promised
to “release, absolve, and discharge” Texaco and all related
companies “from any liability and claims… related to
the obligations assumed by [Texaco] in the Settlement.”
The following year, however, the ROE passed the
Environmental Management Act of 1999 (“EMA”),
which created a private right of action for affected
Ecuadorians to seek damages related to environmental
CA S E NOT E S
harms to the community. In 2001, Chevron’s whollyowned subsidiary merged with Texaco. Under the
Merger Agreement, Chevron inherited all of Texaco’s
common stock but did not acquire any of Texaco’s
assets or liabilities. By 2003 — and with New York
lawyer, Steven Donziger, as lead counsel — a group of
47 plaintiffs from the Lago Agrio region (“LAP”) sued
Chevron in the Lago Agrio Court in Ecuador under
the EMA, after Chevron successfully had the LAP’s
initial suit punted from U.S. federal court on forum non
conveniens grounds. The Lago Agrio complaint did not
name Texaco, and was filed notwithstanding the 1998
ROE-Texaco settlement agreement.
Eight years of contentious litigation followed in Lago
Agrio. Pointing to the Texaco merger agreement, and
noting it had never operated in Ecuador, Chevron
asserted that it fell outside the personal jurisdiction
of an Ecuadorian court. Chevron also challenged the
legitimacy of the court-appointed “independent global
expert” — Richard Stalin Cabrera Vega — who assessed
damages at $27.3 billion. In particular, Chevron pointed
to the Netflix-released cut of the 2009 documentary
film, Crude, in which Dr. Carlos Beristain — a
purported impartial contributor to Cabrera’s report —
worked directly with LAP’s counsel in the trial’s evidence
gathering phase. This, claimed Chevron, revealed the
fraudulent nature of the proceeding and tainted the
independence of Cabrera’s damages finding. Seven other
damages reports were submitted after Cabrera’s findings,
however; and on February 14, 2011, the Lago Agrio
court rendered a 188-page Judgment against Chevron in
the aggregate amount of $18.2 billion.
Three days before the date of that Judgment, Chevron
preemptively filed suit against Donziger and the LAP
in the U.S. Southern District of New York. Chevron’s
complaint sought a declaratory judgment and an antisuit injunction to bar enforcement of the soon-expected
Lago Agrio judgment anywhere outside of Ecuador on
the basis that the Ecuadorian judgment was the product
of fraud and violations of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”). Judge
Kaplan of the Southern District of New York granted
Chevron’s injunction request, but the Second Circuit
Court of Appeals reversed and held that the New York
Uniform Country Money-Judgments Recognition Act
(“Recognition Act”) only authorizes such injunctive
C A SE NOTE S
relief where the “would-be judgment-creditor” — LAP
— ”first attempts enforcement in New York.”
On a parallel, bifurcated, track, Chevron’s declaratory
judgment action proceeded before Judge Kaplan.
Chevron moved for partial summary judgment to dismiss
LAP’s affirmative defenses of res judicata and collateral
estoppel on the grounds that the Lago Agrio Judgment
— which by then had been affirmed by the Ecuadorian
appellate court and was pending before Ecuador’s national
high court — could not have preclusive effect unless it
was recognizable and enforceable in the U.S. Chevron
also claimed that U.S. recognition and enforcement of
the Lago Agrio Judgment was impermissible because
Ecuadorian courts lacked personal jurisdiction over
Chevron. Chevron additionally claimed that the Lago
Agrio Judgment was the product of fraud, alleging,
among other things, that portions of Cabrera Report,
and even the Judgment itself, were ghost-written by
members of the LAP team.
In a 97-page decision handed down on July 31, 2012,
Judge Kaplan denied the bulk of Chevron’s motion and
held that there was a genuine issue of material fact to
propel the parties toward trial — though not without
signaling some key evidentiary concerns relating to
LAP’s alleged fraud. As a threshold matter, Judge Kaplan
noted under New York law that LAP’s res judicata and
collateral estoppel defenses — specifically, that the Lago
Agrio Judgment in Ecuador precluded Chevron’s fraud
claims in the U.S. — did not apply unless the Lago Agrio
judgment “is entitled to recognition under the New York
Recognition Act.” Whether the Lago Agrio judgment
was so entitled thus became the key question.
To this end, Judge Kaplan first addressed the burden of
proof issue. While acknowledging that the question is
“not entirely settled” as a matter of law, the judge held that
LAP bore the burden of establishing that “no mandatory
basis for non-recognition exists,” and Chevron, as the
adversary to recognition of the foreign judgment, bore
“the burden of proof as to the existence of discretionary
basis for non-recognition such as fraud[.]” Having
ruled on the burden of proof, Judge Kaplan considered
the evidence relating to Chevron’s arguments against
enforcement. Notably, Judge Kaplan ruled that Chevron
waived its personal jurisdiction claim “regardless of
which side bears the burden of proof ” on the issue. Judge
The International Dispute Resolution News
Fall 2013
Page 25
Kaplan explained that “Chevron’s own evidence shows
that Chevron did far more before the Lago Agrio court
than contest personal jurisdiction.” The judge went on:
While [Chevron] maintained its position that the
Ecuadorian courts lacked jurisdiction over it as the
trial proceeded, and reiterated its objection in its
final alegato, it argued in its final alegato the merits
of the case and appears also to have filed various
motions and objections to evidence in the case,
moved for clarification and amplification after the
Judgment was entered, sought to have the Judgment
reversed or nullified on various grounds, and sought
further clarification after the appellate court issued
its ruling on both parties’ appeals.
Judge Kaplan then considered Chevron’s argument that
summary judgment was proper because LAP “offered
no evidence” to refute Chevron’s allegations that the
Lago Agrio Judgment was borne from fraud. The
judge acknowledged that Chevron “quite likely would
be correct” if LAP “bore the burden of proving that the
Judgment was not procured by fraud.” But the judge had
determined that burden rested with Chevron, as the party
resisting enforcement, to prove the alleged fraud, and
Chevron failed to establish that there was no genuine
issue of material fact on that issue.
To be sure, Judge Kaplan viewed the allegation that LAP
team members had ghost-written parts of the Lago Agrio
Judgment as “troublesome,” and he cited additional
concerns about the alleged ex parte visits LAP counsel
had with the Lago Agrio judge. Judge Kaplan treated the
Cabrera Report even more harshly, finding — based on
Chevron’s “uncontradicted evidence” — that the Report
was drafted by LAP team members, “tainted by fraud,”
which “the Lago Agrio court relied on to some extent”
in issuing the Judgment. Nonetheless, Judge Kaplan was
not convinced that Chevron’s evidence showed, to the
tune of an absence of a genuine issue of material fact,
that these taints were “material” to the Judgment. It
was under this qualification that Judge Kaplan denied
Chevron’s motion, with the open acknowledgement that
the “taint” issue was far from dead. In the judge’s words:
Certainly the uncontradicted evidence relating to the
Cabrera report and its relationship to the Judgment
is disturbing. It perhaps would justify a trier of fact
CA S E NOT E S
The International Dispute Resolution News
Fall 2013
Page 26
in inferring conclusions broader than is appropriate
on this motion. Moreover, additional evidence may
emerge as the case develops. On the present record,
however, the ultimate materiality of the taint that
indisputably has been established thus far remains a
genuine issue.
Still, though Judge Kaplan disposed of LAP’s res judicata
defense, he rejected the “crux” of Chevron’s motion
— that the Lago Agrio judgment is not entitled to
recognition and enforcement in the U.S. This core
issue, Judge Kaplan concluded, could not be decided at
summary judgment because the question remains as to
whether the taints “materially affected Chevron’s ability
fully to present its defense.” So LAP has been able to claim
victory for now; but that victory may prove pyrrhic if the
taints in the Ecuadorian trial were as severe as Chevron
says. And given the additional evidence that Chevron
has marshaled to support its allegations that LAP bribed
Ecuadorian Judge, Alberto Guerra, $500,000 to accept
ghost-written portions of the judgment and enter final
judgment against Chevron, that day may be near at hand.
1
This case note was submitted by Kyle Richard Olson, an associate in Baker &
McKenzie’s dispute resolution practice in Chicago. Mr. Olson focuses his practice
on products liability, international arbitration and general commercial litigation.
Alongside his practice, he has authored several articles that address issues of private
and public international law.
2
For an overview of the Chevron litigation in Ecuador, see generally Chevron
Corp. v. Donziger, No. 11 Civ. 0691 (LAK), slip op. at 7-28 (S.D.N.Y. Mar. 15,
2013); Chevron Corp. v. Donziger, No. 11 Civ. 0691, 2013 U.S. Dist. LEXIS
24086 (S.D.N.Y. Feb. 21, 2013); Chevron Corp. v. Donziger, 768 F. Supp. 2d 581
(S.D.N.Y. 2011), injunction vacated on other grounds, Chevron Corp. v. Camacho
Naranjo, 667 F.3d 232 (2d Cir. 2012).
Work of Contractors in Afghanistan Gives
Rise to Arbitration Disputes1
Contracts for work to be performed in Afghanistan
with an arbitration clause have proven to be an effective
alternative dispute resolution mechanism in a country
with a developing judiciary. Afghanistan and the Unites
States are signatory to the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards (New York 10 June 1958) commonly referred to
as the “New York Convention” (Afghanistan having signed
on Nov. 30, 2004, and coming into force on 28 February
2005). On December 13, 2011, in a case administered
under the rules of the American Arbitration Association’s
international division the International Center for
Dispute Resolution (“ICDR”), the arbitrator ruled for
the Afghanistan claimant, a Kabul, Afghanistan based
contractor, Road and Roof Construction (“RRCC”).
The arbitration took into consideration the “war
zone” venue and the applicability of the New York
Convention. The respondent, a U.S. contractor, was the
prime contractor under a contract with the United States
Agency for International Development (U.S.A.I.D.).
The U.S. contractor subcontracted “Road Operation
and Maintenance” to RRCC in a multimillion dollar
agreement. As part of the contract, RRCC was required
to maintain portions of very treacherous highways in
Afghanistan. The work performed in multiple provinces
was often in the most active war zones and included
repairing damage from improvised explosion devices
commonly referred to as IEDs. RRCC had filed a
claim asserting unfair backcharges and unpaid invoices.
In addition to RRCC’s basic claim, RRCC had to
contend with a contractually specified venue logistical
problem. The contract arbitration clause provided that
the arbitration shall be conducted at a U.S. venue. It
is extremely difficult and sometimes impossible for
Afghanistan individuals to obtain a U.S. visa. Therefore,
RRCC moved to modify the venue clause asserting that
it would be unable to adequately present its case outside
of Afghanistan since the contract work was performed
entirely in Afghanistan, and the associated witnesses and
evidence were in Afghanistan. RRCC argued that if it
was forced to participate in a final hearing in the U.S.
any result would be unenforceable as it would be against
the public policy of Afghanistan, and the New York
Convention Article V, 1. (b)., & 2. (a). The arbitrator
agreed and RRCC was able to present its case at the final
hearing in Kabul, Afghanistan.
1
This case note was submitted by Michael Berry. Mr. Berry has travelled extensively
practicing law in state, federal and international forums concentrating on
contract law, construction law, and children’s rights working with diplomats, law
enforcement, and the judiciary on domestic and foreign cases in negotiations,
litigation and arbitration.
C A SE NOTE S
The International Dispute Resolution News
Fall 2013
Page 27
Hong Kong Court of Appeals Rejects
Challenge to Award Based on Arbitrator’s
Participation in Settlement Negotiations
During Arbitration1
that accorded to a Hong Kong arbitration award and
accordingly found that enforcement of the Chinese
award in issue would be contrary to the public policy of
Hong Kong and denied enforcement under the “public
policy exception” to the New York Convention.
Gao Haiyan v. Keeneye Holdings Ltd., CACV
79/2011, High Court of the Hong Kong
Special Administrative Region Court of Appeal,
(Dec. 2, 2011).
The Hong Kong Court of Appeal reversed, holding
that there was not sufficient cause to refuse to enforce
the Chinese award and that no case of apparent bias
was established. Gao Haiyan v. Keeneye Holdings Ltd.,
CACV 79/2011, High Court of the Hong Kong Special
Administrative Region Court of Appeal (Dec. 2, 2011). In
making its determination, the court stated that “whether
that [conduct] would give rise to an apprehension of
apparent bias, may depend also on understanding of how
mediation is normally conducted in the place where it
was conducted.” The court gave weight to the decision of
the mainland China court in holding that the arbitration
award should be enforced in Hong Kong. Thus, in its
analysis, the Hong Kong appellate court did not look to
its own public policy in determining enforcement, but
gave credence to that which would be acceptable where
the award was issued. Leave to appeal further was denied
in March 2012.
The subject of “med-arb,” a combination of arbitration
and mediation by the same neutral, has drawn increasing
attention in recent years. The court decision Gao Haiyan
v. Keeneye Holdings Ltd., CACV 79/2011, High Court
of the Hong Kong Special Administrative Region Court
of Appeal, (Dec. 2, 2011), while issued in the context
of a convoluted and unique set of facts, is notable and
suggests a possible path for courts to enforce foreign
arbitration awards even if they present med-arb facts that
might not comport with local requirements as to lack of
apparent bias or even due process.
An arbitration was held in mainland China. Following
a hearing, the tribunal suggested that the parties
settle and one of the arbitrators met with one party.
A recommendation was made as to settlement. The
settlement suggestion was refused and a second arbitration
hearing was held. The final award was challenged in the
court in the Chinese seat. The Chinese court confirmed
the award, finding that the events amounted to a
mediation, which was permitted under the governing
Chinese institutional arbitration rules.
The winning party took the arbitration award to Hong
Kong for enforcement. The lower court refused to
recognize the award, finding that enforcement on such
facts would be an affront to the Hong Kong court’s
sense of justice. Gao Haiyan v. Keeneye Holdings Ltd.,
HCCT 41/2010, High Court of the Hong Kong Special
Administrative Region, Court of First Instance, (Apr. 12,
2011). The court stated that an arbitrator must avoid
unilateral dealings with a party and that confidential
information reviewed in meetings with one party may
subconsciously influence the mediator when sitting
as an arbitrator. The court concluded that a foreign
tribunal should normally receive treatment that is no
more favorable as far as public policy is concerned than
1
This case note was submitted by Edna Sussman, an independent arbitrator and
mediator. Ms. Sussman, is Vice-Chair of the International Mediation Committee
of the ABA Section of International Law and the ADR Practitioner in Residence at
Fordham Law School.
The International Dispute Resolution News
Fall 2013
Page 28
2013/2014 CALENDAR OF EVENTS
October 15-19, 2013
2013 Fall Meeting — Section of
International Law
London Hilton on Park Lane Hotel
February 5-11, 2014
ABA Midyear Meeting
Hyatt Regency Chicago
International Arbitration Committee
Alex B. Blumrosen, Co-Chair
Steven Lee Smith, Co-Chair
Giugi Carminati, Vice-Chair
Michelangelo Cicogna, Vice-Chair
Matthew Kalinowski, Vice-Chair
LeaHaber Kuck, Vice-Chair
Houston Putnam Lowry, Vice-Chair
Mark S. McNeill, Vice-Chair
Edward Maurice Mullins, Vice-Chair
Nikolaus Pitkowitz, Vice-Chair
Joseph Rudolph Profaizer, Vice-Chair
Mara Senn, Vice-Chair
Jose I. Astigarraga, Immediate Past Chair
Ethan A. Berghoff, Senior Advisor
Laurie E. Foster, Senior Advisor
Mark W. Friedman, Senior Advisor
Marc J. Goldstein, Senior Advisor
Manuel Liatowitsch, Senior Advisor
Kevin O’Gorman, Senior Advisor
April 1-5, 2014
2014 Spring Meeting — Section of
International Law
Waldorf Astoria — New York City
International Litigation Committee
Joseph L. Raia, Co-Chair
Kenneth N. Rashbaum, Co-Chair
Ethan A. Berghoff, Vice-Chair
Brendan Berne, Vice-Chair
Gene M. Burd, Vice-Chair
Kieran Cowhey, Vice-Chair
Russell Warren Dombrow, Vice-Chair
Yasmine Lahlou, Vice-Chair
Nathalie Meyer-Fabre, Vice-Chair
Valerie S. Sanders, Vice-Chair
Sylvana Q. Sinha, Vice-Chair
Robert W. Walker, Vice-Chair
Mark E. Wojcik, Vice-Chair
Charles D. Schmerler, Immediate Past Chair
Alex B. Blumrosen, Senior Advisor
Guy S. Lipe, Senior Advisor
Steven M. Richman, Senior Advisor
International Mediation Committee
Ethan A. Berghoff, Co-Chair
Marc J. Goldstein, Co-Chair
Calliope Sudborough, Co-Chair
Hal Abramson, Vice Chair
Renate M. Dendorfer-Ditges, Vice Chair
Laurie E. Foster, Vice Chair
Melissa Ginsberg, Vice Chair
Jack Levin, Vice Chair
Edward Maurice Mullins, Vice Chair
Edna Sussman, Vice Chair
Stephen P. Younger, Immediate Past Chair
Birgit Kurtz, Senior Advisor