International Arbitration

Should I agree to arbitration in my cross-border contracts?

Agreeing to the right dispute-resolution method at the outset of a commercial relationship lets parties take control before disputes arise.  The issue becomes critical when doing business internationally.  There are at least five advantages that commercial entities have in mind when opting for international arbitration:

⦁ Finality and Enforceability: International arbitration awards have a special advantage over court judgments in that these awards are, in most instances, final and binding across borders, thanks to an international treaty called the New York Convention.  The grounds for challenging the enforcement of an arbitral award are extremely limited.  A judgment from a court in one country, on the other hand, won’t necessarily be enforceable in the court of another country.

⦁ Neutrality and Impartiality: Parties to international arbitration have the freedom to choose who will adjudicate their disputes through the arbitrator-selection process, and institutional rules ensure that the parties have a say in that choice.  

⦁ Flexibility: Choosing arbitration can ensure that the dispute is decided by someone who is familiar with the laws and commercial norms expected in your industry.  

⦁ Confidentiality: Arbitration proceedings are generally confidential, meaning that the parties involved can keep the details of their dispute private. This is particularly important for companies that want to protect their reputation or intellectual property, as public court proceedings may result in negative publicity or the disclosure of sensitive information.

⦁ Speed and Efficiency:  Parties can avoid protracted, expensive litigation by agreeing to efficient procedures that reduce costs and even set deadlines for the resolution of the case.  

Whether arbitration is right for you will depend on a number of factors, and the above is only a list of some of the key advantages of international arbitration.  

What is the difference between international commercial arbitration and investor-state arbitration?

In short, the former resolves commercial disputes across borders, and the latter resolves disputes between foreign investors and the host countries in which they have invested. When lawyers refer to international commercial arbitration, they are typically referring to disputes relating to a commercial contract or transaction.  The parties to these disputes are typically businesses or individuals that have previously contracted.  Investor-state arbitration, on the other hand, resolves disputes between foreign investors and host states arising from investments made in the host state.  Investors initiate claims against host states for alleged damage to the value of their investment resulting from the host state’s actions.  Investors can have a variety of rights under investment treaties, including rights to fair and equitable treatment, protection against expropriation, and non-discrimination, among others.

International Litigation

Can I obtain evidence in the United States for litigation or arbitration in another country?

28 U.S.C. § 1782 is a US federal law that allows a foreign or international tribunals, or a party to such a proceeding, to apply to a federal court in the US for an order compelling discovery from a person or entity located in the US. The discovery may include testimony, documents, or other materials.  The federal district court has the discretion to grant or deny the application for discovery based on a number of factors found in the statute and in the federal jurisprudence interpreting the statute.

If I win a lawsuit in one country, can I pursue the defendants’ assets in another?

Not necessarily.  Although some countries (like the United States) have a strong policy of enforcing judgments rendered abroad, most countries do not.  Determining the correct forum for your dispute requires counsel that understands the interwoven lattice of international treaties, contractual provisions, and national laws that can govern disputes across borders.