AT&T Implements Baseball Arbitration to Save Time Warner Merger

The AT&T / Time Warner merger has been a subject of antitrust controversy for quite some time. Although vertical mergers are generally less-heavily scrutinized than horizontal mergers, the U.S. Department of Justice fought to block the acquisition. In February, a three-judge panel in the Court of Appeals for the District of Columbia affirmed the District’s Court’s approval of the acquisition, in part due to AT&T’s baseball-style arbitration agreements.

Baseball style arbitration, also known as “final-offer arbitration” requires opposing parties to blindly submit a proposed award to the arbitral tribunal. The proposed awards are published before a hearing takes place. After publication (and […]

AT&T Implements Baseball Arbitration to Save Time Warner Merger 2019-04-03T09:14:42+00:00

Uber’s Arbitration Clause Deemed Unconscionable in Canada Court of Appeals

In the Ontario Court of Appeal’s first decision of 2019, the Court unanimously reversed a stay of proceedings and allowed a class action suit to continue within the judicial system, despite an arbitration clause between the parties.

Currently, Uber drivers are considered independent contractors and are not entitled to the protections granted by the Ontario Employment Standards Act (ESA).The case, Heller v. Uber Technologies, Inc., is merely the latest arena in which Uber drivers demand to be classified as employees, who are entitled to statutory benefits under the ESA such as minimum wage, vacation pay, and other protections. […]

Uber’s Arbitration Clause Deemed Unconscionable in Canada Court of Appeals 2019-04-03T09:10:32+00:00

China & Singapore Agree to Assemble Multi-National BRI Mediation Panel

During the opening speech of the China-Singapore International Commercial Dispute Resolution Conference, held on January 24, Senior Minister of State for Health and Law Edwin Tong announced China and Singapore’s agreement to assemble a panel of international mediators to help resolve disputes regarding China’s Belt and Road Initiative.

The Belt and Road Initiative (“BRI”) is China’s effort to advance regional cooperation throughout Asia by building infrastructure, trade, and investment connections between China and many other Asian countries. Currently, BRI-related disputes are resolved through litigation or arbitration, but both of those mechanisms heavily rely on western theories of conflict resolution, according to […]

China & Singapore Agree to Assemble Multi-National BRI Mediation Panel 2019-03-18T18:08:44+00:00

Beijing Arbitration Center’s New Draft Investment Rules

The Beijing Arbitration Commission/Beijing International Arbitration Center (BAC) released the Beijing Arbitration Commission/Beijing International Arbitration Center International Investment Arbitration Rules (the Rules) for public comment on February 12, 2019. The BAC drafted the rules to accommodate the growing industry of Chinese and foreign investment arbitrations while simultaneously attempting to solve many of the reported issues plaguing current investment arbitration systems.  In response to industry concerns, the Rules propose the following innovative elements, among other creative provisions:

  1. Unity. The Rules aim to facilitate both ad hoc and institutional arbitrations by incorporating both institutional arbitration rules and ad hoc procedural guidelines from the
Beijing Arbitration Center’s New Draft Investment Rules
2019-03-19T16:37:45+00:00

Hong Kong Mediation Council to Oversee Investment Treaty Disputes

The Hong Kong International Arbitration Centre (HKIAC) announced this week that its Hong Kong Mediation Council (HKMC) will administer investment disputes between a Mainland Chinese investor and the Government of Hong Kong in accordance with 2017’s Investment Agreement under the Mainland and Hong Kong Closer Economic Partnership Arrangement (“Investment Agreement”). The Investment Agreement encourages investment activity between Mainland China and Hong Kong, but also contains significant protections and obligations for both sides.

The Investment Agreement embraces multiple dispute resolution mechanisms, including mediation by a mediation institution previously designated by the host government and agreed to by the other government. The Government of Hong […]

Hong Kong Mediation Council to Oversee Investment Treaty Disputes 2019-01-30T00:41:32+00:00

Hong Kong Now Allowing Third-Party Funding for Arbitration

On December 7, 2018, the Hong Kong Department of Justice released its long-awaited Code of Practice for Third-Party Funding of Arbitration, which can be found HERE. The Code—which takes effect on February 1, 2019—sets out standards of compliance for third-party funders of arbitration and includes a system of supervision by an advisory body (non-compliance will not result in judicial or other proceedings, however). Previously, according to the common law doctrines of “maintenance and champerty,” Hong Kong prohibited third party funding of litigation. The Hong Kong DOJ passed an Amendment Ordinance in June 2017 abolishing the doctrines of maintenance and champerty but […]

Hong Kong Now Allowing Third-Party Funding for Arbitration 2019-01-15T19:24:37+00:00

US Supreme Court Unanimously Upholds Arbitrator Competence to Decide Arbitrability

In Justice Brett Kavanaugh’s first majority opinion, issued January 8, 2019, the Supreme Court unanimously held that the Federal Arbitration Act requires courts to respect valid arbitration clauses and does not empower courts to determine the “gateway” issues of arbitrability when the question of arbitrability has been delegated, by contract, to the arbitrator. The case, Henry Schein, Inc. v. Archer and White Sales, Inc., involved alleged antitrust violations and a request for injunctive relief and monetary damages.

Despite the presence of an arbitration clause in the agreement between the parties, Archer and White filed the lawsuit in the United States District Court in […]

US Supreme Court Unanimously Upholds Arbitrator Competence to Decide Arbitrability 2019-01-11T17:59:26+00:00

California Supreme Court to Decide on Hague Service Convention

On 26 September 2018, the Supreme Court of California granted a petition to review a case to resolve the question: “Can private parties contractually agree to legal service of process by methods not expressly authorized by the Hague [Service] Convention?”

The issue arose in Rockefeller Tech. Inv. (Asia) VII v. Changzhou Sinotype Tech. Co. Ltd., 24 Cal. App. 5th 115 (Cal. Ct. App. 2018)where an American party–Rockefeller Technology Investment (Asia) VII (“Rockefeller Asia”)–sought to confirm its arbitration award and served the counterparty according to the method outlined in the arbitration clause of the parties’ Memorandum of Understanding (“MOU”). Changzhou Sinotype Tech. Co. Ltd. (“Sinotype”), the Chinese counterparty, […]

California Supreme Court to Decide on Hague Service Convention 2019-01-10T03:34:20+00:00

Prague Rules Released

After almost ten years of drafting, the Rules on the Efficient Conduct of Proceedings in International Arbitration (“the Prague Rules,” available for download HERE) were officially confirmed during a signing ceremony on December 14, 2018. These Rules originated as a response to growing concerns regarding the costs and inefficiencies involved in arbitration proceedings. Since 1999, the IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”) have served as a popular compromise between common and civil law traditions for the taking of evidence in international arbitrations. Over the years, however, critics voiced concerns that the IBA Rules lean toward […]

Prague Rules Released 2019-01-08T00:43:30+00:00

IBA Releases Investor-State Report

In November 2018, the International Bar Association‘s Subcommittee on Investment Treaty Arbitration (IBA) released its report on investor-state dispute settlement (ISDS Report), available for download HERE. The ISDS Report reviews the contemporary critiques of the ISDS regime and lists potential solutions on “consistency, efficiency and transparency.” The IBA believes that improvements in these three areas would add to the overall legitimacy of investor-state arbitration worldwide. This post focuses on the first topic–consistency–and the IBA’s articulation of the proposed solutions.  

Consistency in Investor-State Arbitration

The IBA’s ISDS Report notes that inconsistent […]

IBA Releases Investor-State Report 2018-12-17T14:34:55+00:00