New York Arbitration Week
Key Issues in International Commercial and Treaty Arbitration: 2020
Program Host: Fordham Conference on International Arbitration and Mediation
When: Friday, Nov. 20, 2020 9:45 A.M. – 2:30 P.M. and 5:00 P.M. – 6:00 P.M. ET
The Fordham Conference consists of two panels, a keynote address, and a closing reception as detailed below. Register separately for each individual event
Welcome – 9:45-10:00 a.m. ET
Panel 1 – 10:00-11:30 a.m. ET
Combinations and Permutations: Creating a Solution-Driven Dispute Resolution Process
This panel is made up of members of the Steering Committee of the CCA/IMI/Pepperdine International Task Force on Mixed Mode Dispute Resolution. The panel will use a discussion format to review the Task Force’s work through the use of practical scenarios.
The Task Force has worked on ways of combining different dispute resolution processes including litigation, arbitration, conciliation or mediation, whether in parallel, sequentially or as integrated processes and on the opportunities for incorporating tools that are effective in one process into another. The panelists will consider such questions as:
- What systems can parties put in place in advance to avoid disputes and to resolve them quickly if they do arise?
- In what ways may neutrals help parties tailor better dispute resolution processes, such as mediation “setting the stage” for arbitration and vice versa?
- Is it helpful for a mediator to stay in place during an arbitration so that s/he is available for further discussions? How can mediation windows be used effectively during an arbitration?
- Should arbitrators be more deliberate about the potential impact of their procedural decisions on potential settlement and if so how should they manage the process?
- In what ways, if any, might arbitrators and mediators appropriately communicate with each other on resolving a particular dispute?
- Under what circumstances, if any, might it be appropriate for a mediator to become an arbitrator or an arbitrator to become a mediator, during the course of resolving a dispute?
- What is the proper protocol for arbitrators or institutions to follow when parties ask them to convert a settlement agreement into an arbitration award?
Kathleen Paisley, Arbitrator, Ambos Lawyers, Brussels/New York
Edna Sussman, Independent arbitrator, Fordham Law School ADR Practitioner in Residence
Kun Fan, Associate Professor of University of New South Wales Law School, mediator, arbitrator
Jeremy Lack, Attorney-at-Law & ADR Neutral, Geneva, LAWTECH.CH
Moti Mironi, Professor of Law at Haifa University, mediator and arbitrator
Prof. Thomas Stipanowich, William H. Webster Chair in Dispute Resolution, Pepperdine; JAMS neutral
Keynote Address – 11:45 a.m. – 12:30 p.m. ET
International Arbitration and EU Law: What Next?
Professor George A. Bermann, Gellhorn Professor of Law and Jean Monnet Professor in European Union Law, Columbia Law School
Panel 2 – 1:00-2:30 p.m. ET
Does 28 U.S.C. § 1782 Apply to Private International Commercial Arbitrations? A Mock U.S. Supreme Court Argument.
28 U.S.C. § 1782 permits federal courts to order discovery “for use in a proceeding in a foreign or international tribunal.” The question for international arbitration practitioners is whether discovery under this statute applies to private international commercial arbitrations. Three federal circuits – the Second, Fifth and Seventh Circuits – have held that the phrase “foreign or international tribunal” in section 1782 does not include arbitral bodies established by private parties. Two federal circuits — the Fourth and Sixth Circuits – have interpreted section 1782 to apply to private commercial international arbitrations. This circuit split makes the issue ripe for U.S. Supreme Court consideration.
The Fordham International Arbitration and Mediation Conference will present a mock U.S. Supreme Court argument in which counsel and a panel of judges will consider the legal question of whether a private international commercial arbitration is “a foreign or international tribunal” within the meaning of section 1782. After the oral argument, we will invite the participants in the mock argument to comment of what arguments may be most persuasive before the U.S. Supreme Court as well as respond to audience questions.
Louis B. Kimmelman
Paul D. Clement, Partner, Kirkland & Ellis LLP, Former Solicitor General of the United States
Nicole A. Saharsky, Partner, Mayer Brown LLP, Former Assistant to the Solicitor General of the United States
Pamela Bookman, Associate Professor of Law, Fordham University Law School
Kwaku A. Akowuah, Partner, Sidley Austin LLP
Caline Mouawad, Partner, Chaffetz Lindsey LLP
Martine Cicconi, Deputy Solicitor General, Commonwealth of Virginia
Ari D. MacKinnon, Partner, Cleary, Gottlieb, Steen & Hamilton LLP
5:00 p.m. – 6:00 p.m. ET
Closing Reception and Farewell