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GUEST-POST PART I | No Mass Arbitration in ICSID Cases – The Abaclat Dissent
By Victoria VanBuren - December 9, 2011
By S.I. Strong On October 28, 2011, a dissenting opinion regarding the preliminary decision on jurisdiction and admissibility was issued in the ground-breaking case of Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. Arb/07/5 (available here ). The majority award was issued on August 4, 2011 (available here ) and was discussed on this blog here. The majority decision was remarkable in that it constituted the first time that an arb
GUEST-POST | Professor Alan Scott Rau Comments on Flattery Ltd. v. Titan Maritime LLC
By Victoria VanBuren - November 21, 2011
by Alan Scott Rau Some of the readers of this blog may have missed the Ninth Circuit’s recent decision in Cape Flattery Ltd. v. Titan Maritime LLC, 647 F.3d 914 (9th Cir. 2011)—in which the court addressed the critical question of how a court is to determine whether a dispute is “arbitrable” for purposes of a motion to compel—and then proceeds to make a complete hash of it. The M/ V Cape Flattery had run aground on a submerged coral r
American Review of International Arbitration | Arbitral Power and the Limits of Contract: The New Trilogy
By Victoria VanBuren - October 12, 2011
We thought that you might find interesting Professor Alan Scott Rau’s latest article, Arbitral Power and the Limits of Contract: The New Trilogy (October 7, 2011). American Review of International Arbitration, Forthcoming. Here is the abstract: The American law of arbitration has for some reason been replete with what we have become accustomed to call “trilogies” – and the last two terms of the U.S. Supreme Court have curiously continued th
GUEST-POST PART III: ICSID Accepts First-Ever Class-Type Arbitration
By Victoria VanBuren - August 31, 2011
By S.I. Strong Ultimately, concerns about individual litigation rights did not turn out to be a problem for several reasons. First, the scope of the consent given in the TFA offset any objections from claimants. Second, the homogenous nature of the claims offset any objections from the respondent. Indeed, the tribunal noted that forcing Argentina “to face 60,000 proceedings would be a much bigger challenge to Argentina’s effective defense rights
GUEST-POST PART II: ICSID Accepts First-Ever Class-Type Arbitration
By Victoria VanBuren - August 30, 2011
By S.I. Strong Another aspect of the consent analysis involved the question of whether this sort of mass claim was permitted under the ICSID Convention and the Argentina-Italy BIT. See id. ¶¶ 467-92. This posed an interesting dilemma, given that both documents are silent on the issue of mass proceedings. Perhaps unsurprisingly, the tribunal’s inquiry was reminiscent of the type of analyses that arise in the class arbitration context with respect
GUEST-POST PART I: ICSID Accepts First-Ever Class-Type Arbitration
By Victoria VanBuren - August 29, 2011
By S.I. Strong On August 4, 2011, a preliminary award on jurisdiction was rendered in Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. Arb/07/5. The nearly 300-page award, which is available here, addresses a number of concerns, such as whether the dispute falls within the scope of the relevant bilateral investment treaty (BIT) and whether the claims are contractual or treaty-based. Many of these issues are not themselves unique,
GUEST-POST | Texas Court of Appeals Vacates $22 Million Dollar Arbitration Award Due to Failure to Disclose Social Contacts by Arbitrator
By Victoria VanBuren - July 6, 2011
By Glen M. Wilkerson The facts and holdings in Karlseng v. Cooke, Tex. App. – – Dallas, June 28, 2011 (Cause # 05-09-01002-CV) are instructive technically in ethics, in the law of “evident partiality” in arbitration law, and as an illustration how influence is peddled sub rosa through out judicial / legal system. What is alarming is that this case shows how the Rule of Law with a relatively non-partisan decision maker is ultimately fr
GUEST-POST PART II | Lawyering with Planned Early Negotiation
By Victoria VanBuren - June 21, 2011
By John Lande Part I described the “prison of fear” that keeps many lawyers and parties from negotiating early in a dispute. This Part describes how lawyers can initiate and conduct a “planned early negotiation” or “PEN.” Lawyers should routinely do an “early case assessment” to analyze what procedure would be most appropriate. In some cases, it is clear from the outset that the parties need to engage in all-out adversarial litigation. But in mos
GUEST-POST PART I | Lawyering with Planned Early Negotiation
By Victoria VanBuren - June 20, 2011
By John Lande In an all-too-common pattern in litigation, settlement comes only after the lawyers engage in adversarial posturing, the original conflict escalates, and the parties’ relationship deteriorates. It costs a lot, takes a long time, and none of the parties is happy with the settlement. Almost any disagreement can escalate the conflict and divert energy from the tasks needed to resolve disputes efficiently. Although some lawyers enjoy th
Texas Tech Law Review Article | Alternative Dispute Resolution: Litigating Arbitration Slows as Mediation Becomes More Popular
By Victoria VanBuren - June 8, 2011
Our blog contributor Don Philbin has published his yearly survey of ADR case law in the Fifth Circuit. Here is part of the introduction: Alternative Dispute Resolution as a whole is thriving. Civil jury trials continued at multi-decade lows, both absolutely and as a percentage of dispositions.1 And alternatives to those trials have become mainstream. But not all Alternative Dispute Resolution (ADR) is equal. As ADR users have become more sophisti
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