Perhaps one should have a valid excuse, in the company of intended readers of Arbitration Commentaries, to re-open the well-worn subject of compromise outcomes on damages in international arbitration – “triangulation,” in the parlance of some eloquent and perceptive commentators (e.g., M. Kantor, Avoiding Triangulations and Chimeras Alike, Global Arbitration Review (July 31, 2012))*; but here identified by its colloquial name: “baby-splitting.”  I claim to have such an excuse, having recently been permitted to participate as a speaker in a program about damages before a knowledgeable audience, and for that purpose having tried to compose some thoughts on the matter. A few of those thoughts, falling short (as these essays usually do) of being a definitive treatment, are set forth here:

1. “Institutional/environmental” factors often weigh against baby-splitting (at least overt forms of it). Let’s first consider investor-State arbitration. Investment arbitration awards, unless made confidential by agreement or order, are published in accessible online sources. They are studied and discussed by practitioners in the field and scholars in academia. The transparency factor is one element that should encourage investment arbitrators to be thorough and objective in their approach to damages. The relatively concentrated nature of the investment arbitration bar, and its well-developed communication networks, also serve to place investment arbitrators under a microscope. The prospect of annulment proceedings in ICSID cases is perhaps a factor – but high professionalism may be the best explanation – that motivates investment law arbitrators to display in their awards painstakingly detailed and thorough exposition of the parties’ contentions and equally painstaking Tribunal analysis on both liability and quantum. This would seem to be not particularly out of fear of an actual annulment, but for two reasons: first, to inhibit the prospects of and the costs associated with annulment proceedings, and second, to avoid the negative peer review (with full transparency to the investment arbitration community) that could appear in an annulment committee’s decision even if the award is sustained. Let’s now consider commercial arbitrations, with lesser degree of institutionalized transparency. In ICC arbitrations and others where there is similar “peer review” of draft awards (members of the ICC Court who scrutinize awards being viewed as peers of the arbitrators for this purpose), the incentives to resolve quantum issues analytically are also present. Many arbitrators approach damages analytically mainly because this is what arbitrators consider that they are duty-bound to do. Whether subjective choices of damages amounts are more prevalent where the awards are less scrutinized and less transparent is difficult to say. I know many arbitrators who consider themselves duty-bound to tackle difficult quantum issues as objectively and thoroughly as the evidence and circumstances permit, without regard to transparency factors. At the same time, we know that wrestling with complex quantum issues demands great discipline, stamina, and time, and presiding arbitrators are sometimes selected for reasons having little to do with their willingness or ability or availability to make the required effort. Some of them will compensate by delegation, whether to another member of the Tribunal, or to a Tribunal assistant, who claims to have quantitative skills and a consequent ability to decipher and analyze the evidence about damages.
2. Are Disappointed Parties Propagators of the Myth of Baby-Splitting?: I have no survey data to support this hypothesis. But is seems entirely plausible to suppose that some of what is perceived as “baby-splitting” by arbitration participants is a speculative attempt to ascribe a subjective motive to the arbitrators’ rejection or partial rejection of the party’s position on damages. When arbitrators have latitude to omit detailed statements of their reasons – as they do in many settings other than investment law cases, the arbitrators may have specific reasons for omitting their reasons. For example, an award that is highly critical of the analysis or the credibility of an expert to whom a party has presumably paid considerable sums in professional fees may strain relationships. Arbitrators may prefer to leave a gap in the reasoning, seeing reticence as the lesser evil. In such a case, the perception of baby-splitting may be justified, but the reality may be otherwise. Conversely, arbitrators may state detailed reasons for having adopted particular assumptions or discredited particular elements of the Claimant’s position on damages. And yet the Claimant and its counsel may remain convinced that this rejection was subjectively not analytically motivated, the award’s stated reasons being seen to operate as an arbitrary tool to make a subjective outcome appear rational. These kinds of reactions are understandable byproducts of an adversary process that entails substantial financial and emotional investments by the parties and their professionals. Consider this example. In a recent investment arbitration case, Claimant claimed that the expropriated assets had a 40-year expected life, while the Respondent State contended for 25 years. Each party submitted extensive expert evidence on this specific question. Opting for the 25-year term, the Tribunal provided detailed assessments of the reliability and credibility of each expert’s submissions. This choice had a 35 percent reduction impact on valuation under the discounted cash flow (DCF) methodology. Will the Claimant or its professionals admit, in any public forum or private survey, that Respondent had the better of the argument? Perhaps not. But if the award is the objective evidence, and the arbitrators’ motives and stated conclusions are presumed to be sincere, the case for baby-splitting is difficult to make.
3. Survey Evidence Disputes Baby-Splitting as Mostly Myth: Evidence that arbitrators do not systematically gravitate toward moderation in damages outcomes comes from some sources even more authoritative than your Commentator. A 2015 study by the American Arbitration Association covering 2,384 AAA domestic and international commercial arbitration awards in cases where monetary relief was claimed found that 41 percent of the cases resulted in awards of 80 percent or more of the amount claimed, 31 percent resulted in claims denied, and only 28 percent resulted in awards of less than 80 percent of the amount claimed. (“AAA/ICDR Awards Do Not Split the Baby: Countering Counsel Perception in Commercial B2B Arbitration Cases,” a 2016 AAA report that may be found at www.sacarbitration.com; for apparently technical reasons owing to changes in the AAA’s website, this AAA whitepaper is not currently posted there). A broader study in 2014 that canvassed multiple empirical analyses concluded: “Practically all the research under consideration came to the conclusion that arbitral tribunals very often grant claimant or respondent the full or almost the full amount claimed; awards in the mid-range are the exception and not the rule.” (A.C. Weber, C.A. Pascuzzo & G. De Siqueria Pastore, Challenging the “Splitting the Baby” Myth in International Arbitration, 31(6) Journal of International Arbitration 719-734 at 733 (2014)). Such surveys have their own limitations of course. A survey of all AAA/ICDR awards in a given year may include a large number of cases where the amount of the award, if there is liability, is relatively well-defined by contract. A more selective sampling of business valuation and lost profits cases would probably yield different results.
4. Salvation of the Baby-Splitters?: Even if there is no consensus about how prevalent baby-splitting may be, we may all agree that it would be desirable to take concrete steps to reduce the arbitrator’s temptation. Here there is shared responsibility of advocates and arbitrators. Suppose, as is wont to happen in some cases, the Claimant submits a thorough DCF analysis with a specific outcome, and Respondent’s expert submits an “attack” report that questions Claimant’s experts’ assumptions, methodology, data accuracy, etc., but does not make a counter valuation or even a sensitivity analysis on key variables (or, mainly for rhetorical purposes, opines that there are no damages, that the value of the property taken is zero or negative, etc). Responses of arbitrators in such situations may in part be cultural. For American arbitrators, especially in a case with American counsel, the norm of party autonomy translates into a strong momentum toward allowing the parties to present their cases as they wish. If this leaves the Tribunal at the deliberation stage with less guidance on quantum than might be desirable, at least the dysfunction is a byproduct of the parties’ choices. But even American arbitrators do find ways to manage the problem. One approach, suitable for a case where quantum stands to be a complex valuation or lost profits endeavor with foreseeably conflicting expert testimony and substantial potential variations based on data and assumption choices, is to encourage the Respondent, even at the preliminary conference stage, to respond to Claimant’s quantum evidence with a quantified counter-position. Another possibility is to await receipt of both sides’ expert submissions, and if Respondent has made an attack report only, to invite this to be supplemented with a counter-calculation. (More commonly, but perhaps less effectively, the Claimant submits a reply expert report purporting to show that Respondent’s criticisms have been taken into account, resulting in modest adjustments).  Another strategy is for the parties’ experts to share their damages models with the Tribunal, or to develop jointly a serviceable model for the Tribunal’s own use. (This phenomenon can be observed in the reading of a recent investment arbitration award, see Burlington Resources v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Reconsideration and Award dated Feb. 7, 2017, published on italaw.com)). This solution raises further issues about the Tribunal’s ability to manipulate the model, the possible need for a Tribunal-appointed expert, and the possibility of ongoing dialogue with the party experts beyond the confines of a merits hearing.

*“Triangulation” in social science terminology refers to the use of multiple methods in a study in order the cross-check the validity of the results. In the arbitration context the term initially had reference to an arbitral tribunal’s examination of possibly three different quantum outcomes based on possibly three different valuation methods  — income-based (DCF), market-based (comparables) and asset-based (net asset value).  See C. Amirfar, The Role of Damages Calculations in the Legitimacy of International Investment Arbitration, in A. Rovine, ed., CONTEMPORARY ISSUES IN INTERNATIONAL ARBITRATION AND MEDIATION: THE FORDHAM PAPERS 2015, Chapter 7 at 108, 110 & nn. 10, 11, citing to M. Kantor, supra.)

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Perhaps it is an indication that the rehabilitation of air conditioning systems in certain US Courthouses has proceeded apace, an unheralded early accomplishment of the current US Administration’s vaunted infrastructure program, that this summer has so far produced an impressive output of federal appellate decisions concerning international arbitration. Whereas a beach-and-boat reading guide is something of a mid-summer tradition at Arbitration Commentaries, here, dutifully, are reviews and recommendations:

Non-Enforcement of Annulled Awards — Decisions last month in the US Courts of Appeals for the Second and District of Columbia Circuits further entrenched the US position that enforcement under the New York Convention of an award judicially annulled at the seat of the arbitration may only be obtained if the annulment is offensive under the same very restrictive US public policy standards that govern denial of the recognition and enforcement of a New York Convention award made at a foreign seat of arbitration. (Thai-Lao Lignite (Thailand) Co. v. Government of the Lao People’s Democratic Republic, 2017 WL 3081817 (2d Cir. July 20, 2017); Getma International v. Republic of Guinea, 862 F.3d 45 (D.C. Cir. July 7, 2017)). In holding that considerations of “comity” should normally lead to denial of enforcement of the annulled award unless such denial would be “repugnant to fundamental notions of what is decent and just,” the courts acknowledge that they have embraced a test adopted from the Restatement (Second) of Conflict of Laws concerning recognition and enforcement in the United States of valid judgments of the courts of foreign nations (§117, comment c). Thus the US law position on how the discretion lodged by the New York Convention to refuse, or not, confirmation of an award that has been set aside at the arbitral seat is that the annulment judgment should be regarded, in terms of its convertibility to a US judgment, in essentially the same fashion as foreign judgments generally, and should not be treated with reference to any distinctive attributes of the judgment owing to its status as an intervention overruling the adjudication of an international arbitral tribunal. This short post is not the setting for a debate on the wisdom of such a categorical approach. It is worthy of note however that the source of this governing principle is not the New York Convention itself, and the motive for its adoption is not to implement the perceived purposes of the drafters of the Convention or those of the Congress that implemented the Convention by enacting FAA Chapter 2. This approach instead appears to be an expression of American jurisprudence in the realm of foreign relations more generally — that comity among nations calls for foreign arbitral annulment judgments to be treated on par with other foreign judgments. The New York Convention itself takes no position on what should be the position of a Contracting State as to enforcement of a vacated award, and expressly leaves open the possibility that different Contracting States may take more or less liberal enforcement positions: “The provisions of the present Convention shall not … deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.” (Art. VII(1)). Note is taken here, but without much further discussion, that the Thai-Lao Lignite case also involves additional considerations under US civil procedure law (FRCP 60(b)(5)) because, owing to the delays in the annulment proceedings in Malaysia, a judgment confirming this award had already been entered in a US District Court in New York. The procedural posture of this appeal was that the District Court had entered a post-annulment judgment vacating its pre-annulment confirmation judgment. That may be expected to be the exceptional circumstance, the more usual situations being either that annulment is obtained before confirmation is sought, or confirmation is postponed under the Convention, by the court petitioned to confirm the award, on the basis of a pending annulment proceeding (Art. VI).

Arbitral Determination of the Seat of Arbitration — The US Eleventh Circuit Court of Appeals held (perhaps without entirely realizing it was doing so) that in a US-seated international arbitration, an arbitrator’s interpretation of the arbitration clause in regard to the proper seat of arbitration for counterclaims lodged by the Respondent was entitled to deference, as it was a procedural matter primarily for arbitral determination, not a “gateway” question primarily for a court to decide or re-decide independently. (Bamberger Rosenheim, Ltd. v. OA Development, Inc., 2017 WL 3014354 (11th Cir. July 17, 2017)). Here the arbitration agreement between companies of US and Israeli nationality provided for ICC arbitration and that the “venue” of the arbitration would be in the home country of the party against whom the “dispute” was “submitted.” The Israeli company submitted a dispute to the ICC, thus triggering an Atlanta-seated arbitration. When the US company submitted a counterclaim, the Israeli firm asserted that the Tribunal lacked jurisdiction and that in all events the counterclaim had to be arbitrated at a Tel Aviv “venue.” The ICC Court of Arbitration invited the arbitrator to decide whether the parties had an agreement on the seat of arbitration for counterclaims (see Art. 18(1) of the ICC Rules). The arbitrator ruled in a partial final award, in effect, that the parties had agreed that counterclaims would be heard at the same “venue” as that established by their agreement for the Claimant’s claim. The ICC Court treated this under Art. 18 (1) as dispositive of the question whether the parties had an agreement on the seat, and the arbitration proceeded to final award as an Atlanta-seated arbitration. Both the US district court judge in Atlanta and the Eleventh Circuit treated the question, parroting the wording of the arbitration clause, as one of “venue” – seeming to assume that this term had no potentially distinctive aspects in international arbitration — and decided the case on the basis that under FAA domestic case law, disputes about the hearing “venue” are procedural matters that parties are presumed to want arbitrators rather than courts to decide with only the very limited judicial review associated with awards on the merits. But in fact this was a question about the arbitral seat, and neither the arbitrator’s award, the District Court decision, nor the Eleventh Circuit affirmance, addresses the issue from the perspective that the fundamental issue was what arbitral legal regime would apply to a claim made against a party, and whether the meaning of the “venue” provision was that each party intended that it would only be required to defend a claim under the arbitral legal regime of its home country. Some might say that this is a sufficiently fundamental issue about the legal complexion of the arbitration that the parties, if they had given the matter thought, presumptively would have wanted a court not an arbitrator to decide. After all, if US arbitration law regards the enforceability of a New York Convention award as primarily subject to the judicial power of courts at the seat of the arbitration — see note above re recent cases — is it not more consistent with that view to treat a dispute about whether the seat was agreed to be in Country A or Country B as a “gateway” question of (or closely akin to) “arbitrability”? The courts in this case evidently were not guided to consider the issue in these terms.

***

On more sanguine note: The Eleventh Circuit, evidently having been alerted that its 1998 decision, holding that only FAA Chapter 2 and the New York Convention, and not FAA Chapter 1, provide vacatur standards applicable to a New York Convention award in a US-seated international commercial arbitration (Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1445-46 (11th Cir. 1998)), states in a footnote in the Bamberger decision that it assumes without deciding that FAA Section 10 (of FAA Chapter 1) applies. This is a welcome signal that the 1998 decision will be formally overruled on a suitable occasion, and that the Eleventh Circuit will join other federal judicial circuits that have adopted the position that in a US-seated international commercial arbitration the statutory grounds for vacatur of an award found in FAA Chapter 1 are applicable.

Enforcement of ICSID Convention Awards — The US Second Circuit Court of Appeals held that the 1976 Foreign Sovereign Immunities Act (FSIA) governs subject matter jurisdiction, personal jurisdiction, and procedure, in regard to the enforcement against a foreign sovereign of an ICSID Convention award. This ruling overrules a series of decisions in New York federal district courts that had construed the 1966 statute implementing the ICSID Convention (28 USC § 650a) as a source of subject matter jurisdiction over all ICSID Convention award debtors including foreign sovereigns, and as a source of power to engage state law procedures including ex parte procedures to seize foreign sovereign assets in the US for execution. Critical to the Court’s reasoning was the fact that the US Supreme Court has stated several times, beginning with the Amerada Hess case in 1987, that the FSIA is the exclusive basis for obtaining jurisdiction over a foreign sovereign in US courts. Finding no express conflict between the 1976 FSIA and the 1966 ICSID legislation, the Second Circuit concluded that the Supreme Court’s emphatic statements about FSIA’s exclusivity weigh in favor of finding that the FSIA prevails over the earlier-enacted ICSID Convention-specific statute. While there are several other federal judicial circuits where this question has not been definitively resolved, the practical consequences are significant, as foreign governments that expect to be ICSID Convention award debtors have even greater incentives than exist already to concentrate any US-based assets in New York institutions. (Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, 2017 WL 2945603 (2d Cir. July 11, 2017)).

Enforcement of Bifurcated Partial Final Award on Liability — The US First Circuit Court of Appeals held that an award on liability in an international arbitration bifurcated by agreement into liability and damages phases satisfies the New York Convention’s requirement that the Award shall have become “binding” on the parties, and thus may be confirmed under the Convention and FAA Chapter Two. This extends to Convention awards a rule of long standing in domestic FAA case law. A few years ago your Commentator, discussing that rule in this space, asked whether agreed bifurcation ought to be the outer limit for enforcement of awards that are intended to determine liability, or whether for example the arbitrator’s unilateral decision to bifurcate or her adoption of a contested party application to bifurcate might also suffice. This latest decision offers no hint of how that issue would be decided, but agreed bifurcation is clearly presented in this decision as a sufficient — but not necessarily necessary — condition for confirmation of a partial final award on liability in a case falling under the Convention. Also, you are encouraged read this case to admire the craft of Associate Justice (Ret.) of the US Supreme Court David Souter, proof that there is a robust judicial life to be had after leaving service on the Court. (University of Notre Dame (USA) in England v. TJAC Waterloo, LLC, 861 F.3d 287 (1st Cir. June 28, 2017)).

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Canada celebrated Canada Day two weeks early in Washington DC, completing its NAFTA Chapter 11 arbitration takedown of T. Boone Pickens’ Mesa Power with a New York Convention award confirmation in the US District Court of a NAFTA Arbitral Tribunal’s rejection of Mesa’s unfair treatment claims against the Government of Ontario in regard to Ontario’s procurement of wind-powered electricity from Mesa’s Canadian renewable energy venture.  (Mesa Power Group, LLC v. Government of Canada, 2017 WL 2592414 (D.D.C. June 15, 2017)). Your Commentator, having failed despite mighty efforts to determine if Mr. Pickens called his friend the incumbent President to affirm that NAFTA is “a total disaster” and “the worst trade deal ever,” instead devoted some quiet hours of the Independence Weekend to compiling some program notes for the gripping drama that is to unfold starting later this summer:  the US-requested renegotiation of NAFTA. Whereas I maintain, in my modest free trade zone, an adequate supply of softwood lumber and a sturdy vehicle assuredly not manufactured in a factory on the soil of a NAFTA Party, I focus here on prospects for changes to the investment protection chapter (#11) of the treaty.

1. Devotees of Investor State Dispute Settlement (ISDS) looking for hints of what might be Canada’s Chapter 11 agenda would take interest in prominent think-tank analysis that might make its way to PM Justin Trudeau’s nightstand: A report by scholars at Waterloo, Ontario-based Center for International Governance Innovation (CIGI) urging that measures already adopted by the parties via the NAFTA Free Trade Commission, or better yet those adopted in the EU-Canada Comprehensive Economic and Trade Agreement (CETA), for transparency of and access to investment arbitration proceedings (including amicus participation) should be incorporated in the revised text. And while giving a full account of the CETA permanent investment tribunal and appellate tribunal features, the report stops short of urging that this be a key element of Canada’s Chapter 11 renegotiation agenda. They do however endorse adoption of CETA’s provisions for accelerated dismissal of frivolous claims. (“Modernizing NAFTA: A New Deal for the North American Economy in the Twenty-first Century,” CIGI Papers No. 123 March 2017).
2. A recent submission by the US Council on International Business (USCIB) to the US Trade Representative devotes only three paragraphs to ISDS in a 16-page submission, and in general terms endorses reference to the 2012 US Model Bilateral Investment Treaty as a reference point for modernizing Chapter 11. (“USCIB Comments on Negotiating Objectives Regarding NAFTA Modernization,” Dkt. No.: USTR-2017-0006, June 12, 2017).
3. The Trump Team at the NAFTA negotiation table may have its eye on maintaining the US’s unblemished records of wins in ISDS cases, perhaps anxiously taking note of recent published reports that the US withdrawal from the Paris climate change accord might lead to a surge in ISDS claims against the US by foreign investors who claim to have relied on a US regulatory framework favorable to (for example) renewable energy. (See “Could the US Withdrawal from the Paris Agreement Spur ISDS Claims?,” Stockholm Chamber of Commerce ISDS Blog, posted June 21, 2017). If so, and even if the Trump-led US trade team remains as resolute in remaining outside the Trans-Pacific Partnership (TPP) as many of the other TPP nations are in their resolve to forge ahead (see “Canada, other countries will move forward on new Trans-Pacific Partnership after U.S. withdrawal,” Toronto Sun, May 21, 2017), we could see a US pitch to add to Chapter 11 a pro-State-regulatory-power provision akin to TPP Article 9.15: “Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity units territory is undertaken in manner consistent with environmental, health or other regulatory objectives.”
4. Some one or more persons on the Trump Team will have read (perhaps out of view of colleagues and superiors) an excellent brief report by Brookings Institution analyst Geoffrey Gertz entitled “Renegotiating NAFTA: Options for Investment Protection” (Global Views, No. 7, March 2017), which briefly sketches:

four broad options for the future of investment protection in NAFTA:

1. Upgrading the treaty’s investment chapter while leaving the main substantive and procedural aspects of investment protection in place.
2. Abandoning legalized treaty-based investment protections, leaving any provisions on investment not directly legally enforceable.
3. Shifting from an investor-state framework to a state-state framework, in which states would be responsible for legal enforcement of investment regulations.
4. Linking NAFTA to the recently proposed multilateral investment court.

The report takes no prescriptive position but advocates “for more ambitious and creative thinking on investment protection policy, particularly in the US.”

To date there appear to be no particular indications that Chapter 11 on investor protection is a priority agenda item for negotiators from any of the NAFTA Parties. But the fact that negotiation of changes to Chapter 11 lacks the high political profile of issues like import tariffs and government subsidies need not mean the issues will receive no attention. Perhaps thoughtful investment arbitration specialists will make useful progress, out of the spotlight, in a quiet room at the far end of the hotel corridor.

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Linked below is my article “A Glance Into History for the Emergency Arbitrator”, published last month in the Fordham International Law Journal. The article was written in conjunction with my presentation on the same topic at the Fordham Conference in New York in October 2016.

http://ir.lawnet.fordham.edu/ilj/vol40/iss3/3

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It has been fashionable in some international arbitration circles of late to bemoan the shortcomings of a staple of the arbitral diet: the written testimonial statement of a fact witness, submitted in advance of the merits hearing and intended to stand as the testimony-in-chief (direct). For arbitrators who thrive on a constant regimen of procedural nourishment, this pot-stirring resonates like an anti-croissants diatribe at a conference of the French bakery association: too flaky, too buttery, too … prévisible! (Francophobes, use your Google Translator!).

Avid readers of the burgeoning literature on this subject, and even workaday arbitrators and advocates, will be familiar with the essential virtues of the witness statement (it brings coherent organization to complex facts, and affords disclosure in advance of the party’s evidence) and with its vices (mainly due mainly to its preparation by counsel, it may be tendentious, prolix, and a crude approximation of “the truth”). Your commentator, while reluctant to expose the hazards of a croissant-free French breakfast, does boldly venture below several observations about the more indigestible attributes of arbitration without witness statements:

1. The advocate’s theory of the case may remain a work in progress at the time of submitting the pre-hearing memorandum of law. This being rather late in the game for a party to have a case in search of a theory, arbitrators at the hearing and post-hearing stage can contribute rather less than they might to a focusing of the parties’ attention on potentially decisive issues. And the advocates in turn have less opportunity to advocate on issues the Arbitral Tribunal genuinely cares about. If theories of claim and defense are modified from the pre-hearing to the post-hearing brief, the Tribunal, except in the unlikely event that counsel will confirm the abandonment of positions earlier articulated, now has a greater number of liability theories and defenses to address in deliberations and in the Award.
2. The advocate, lacking confidence that the direct testimony of two witnesses rather than six will be sufficient and effective, protectively names six on the witness list. Seeing the list of six, opposing counsel protectively expands its own provisional witness list of four into an actual list of eight. The Tribunal now wonders, aloud, how it will hear 14 fact witnesses (plus experts) in a four-day hearing, when there promises to be direct, cross, re-direct, re-cross, Tribunal questions, and follow-up to Tribunal questions, for each witness.
3. Lacking adequate foreknowledge of the adverse party’s witnesses’ testimony, the advocate’s preparation for cross-examination is unfocused. What can most safely be done by the advocate is to prepare to read, on cross, helpful highlights of documents the adverse witness is associated with (followed by the unhelpful question “Did I read that correctly?”).
4. The parties’ lists of witnesses being hedged promises of those they may call and not necessarily those they will call, each side insists on the right to call two of the adverse party’s listed witnesses on its own case. Skirmishes ensue about what the adverse party could possibly want from these witnesses that cannot be adduced from its own employees or in cross-examination, and the Tribunal, having only a vague sense of what any witness might contribute, is reluctant to limit any procedural option for either side. Undesirable outcomes abound — such as witnesses waiting, sequestered, for a testimonial appearance that may not materialize (not to mention the legal costs of preparing the witness for the unknown examination by opposing counsel), or, to avoid such a scenario, a commitment is made by the party that employs the witness that she will be called, and this adds a witness who might otherwise not be needed, in service of control over the timing and presentation.
5. The Claimant having no advance disclosure of what the Respondent’s fact witnesses will actual say in their testimony, seeks to reserve the ability to call new witnesses on a “rebuttal case” as well as the opportunity to re-call witnesses who will have already testified in the Claimant’s case-in-chief. The parties are unlikely to have anticipated this hearing-lengthening prospect at the time the hearing schedule was fixed, and the potential necessity to add hearing days for the rebuttal case, after a lengthy hiatus, may loom as the first hearing dates approach.

These are serious disadvantages to proceeding without written witness statements in a complex international arbitration. It is desirable that arbitrators and advocates should become familiar with them so that decisions on witness procedure made at the early stages of the case will be well-informed, and will neither opt in favor of written witness statements merely because their use is customary nor opt against them merely because the backlash against custom has come into fashion.

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Surely you sometimes wonder why Elena Kagan is a Justice of the Supreme Court and a former Dean of the Harvard Law School, while you, on the other hand, plod along in your quotidian existence as a world-renowned, universally-esteemed, brilliant and magnificently accomplished international arbitrator.  Well, you should read Justice Kagan’s masterful opinion for the nearly-unanimous* Supreme Court in Kindred Nursing Centers v. Clark, 137 S.Ct. 1421, 2017 WL 2039160 (May 15, 2017). If you could write such compelling prose, you might have had a different destiny. (Note: It helps to breathe the air of Manhattan’s Upper West Side, as Justice Kagan did in her youth, and your Commentator has done each day for 28 years. But the Justice re-read Jane Austen’s Pride and Prejudice every year in her youth, whereas for your Commentator that masterpiece remains on a very long to-do list).

You need not read Kindred Nursing to discern any change in US arbitration law. It is a reaffirmation of first principles, a smack-down of a State court that was trying to be too clever by half in its hostility to arbitration. Arbitration agreements stand on equal footing with other contracts under the FAA, and shall not be invalidated or denied enforcement by the individual States on grounds not generally applicable to all contracts. You knew that (or else you have been practicing arbitration law under a rock since 1925).

2017 is the year of alternative facts, and the Supreme Court of Kentucky had contrived a set of alternative facts about why it was OK to deny arbitration where a nursing home made an arbitration agreement with an elderly resident through the agency of a compos mentis relative of the resident who held a valid and broad power of attorney. Presumably so that the outcome would not have the appearance of being the handiwork of the conservative wing of the Court supporting the nursing home industry in the vicitimization of the elderly, the task of writing the opinion of the Court fell to a member of the Blue State liberal quartet.

Referring to the Kentucky court’s so-called “clear statement rule” that a power of attorney must declare in express terms a delegation of authority to enter into a contract that would waive the “sacred” and “God-given” right to a trial by jury, Justice Kagan wrote that the Kentucky court “adopted a legal rule hinging on the primary characteristic of an arbitration agreement — namely, a waiver of the right to go to court and receive a jury trial.” The requirement of special express authorization to delegate such contractual power to an attorney-in-fact “subject[s] [agreements to arbitrate] by virtue of their defining trait, to uncommon barriers …” And answering the arguments advanced by Respondent in support of the Kentucky court’s decision, that the “clear statement rule” applied equally to other kinds of contracts that could forfeit fundamental rights – the examples given at argument were contracts sacrificing freedom of worship, providing for an arranged marriage, or committing the principal to personal servitude – Justice Kagan characterized these examples as “a slim set of both patently objectionable and utterly fanciful contracts that would be subject to its rule.”  She continued: “Placing arbitration agreements within that class reveals the kind of ‘hostility to arbitration’ that led Congress to enact the FAA. … And doing so only makes clear the arbitration-specific character of the rule, much as if it were made applicable to arbitration agreements and black swans.”

I intend to read, and then re-read, Pride and Prejudice….and to breathe more Upper West Side air. Anything for a chance at such vivid clarity in legal writing.

*Justice Thomas insists the FAA does not apply in courts of the individual States. Justice Gorsuch arrived too late participate.

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You are not finished learning from the ICSID annulment committee’s non-annulment of the Suez/Vivendi v. Argentina award, at least not if you actually read these posts (a covert activity that leaves cookies, and suggests you probably did not heavily annotate the latest issue of the ICSID Review). Some number of you will remember that Argentina turned up at the US Supreme Court a few years back, trying to sell the idea that the Supremes should tell British investors they had to spend 18 months cooling off in the Argentine courts day-by-day (with an allowance for Tango and Malbec at night) if they wanted to eventually pursue international arbitration at the World Bank to show that Argentine fiscal policies had sunk the profitability of their investments against settled expectations. The Court did not buy the argument that 18 months in the Cooler was a condition of Argentina’s consent to ICSID arbitration, because the UK-Argentine investment treaty couldn’t fairly be read to say that (not even after a half bottle of REALLY GOOD Malbec). [BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014)]

So it will not surprise you to know that in the Suez/Vivendi case [Suez & Vivendi Universal v. Argentine Republic, ICSID Case No. ARB/03/19, Decision on Annulment, May 5, 2017], Argentina also tried and failed to convince the arbitrators that the investors should be shut down because they refused to comply with the 18 months in the Cooler clause – this one in the Spain-Argentina investment treaty. What sunk Argentina in this case was that the France-Argentina investment treaty had no such clause, and the Spain-Argentina treaty had a “most favored nation” (MFN, hereinafter Grass-is-Greener) clause. Said the Spanish investor to the ICSID Tribunal: “The Grass-is-Greener in France, so we play by French rules.” Game, set, and match to the Spanish investor. (R. Nadal, citing this precedent, won his round of 64 match at Roland-Garros yesterday, 6-2, 6-4, 6-1. On clay not grass).

So Argentina told the annulment committee that the Grass-is-Greener argument has a long history of not working for investors in regard to dispute resolution provisions in treaties, i.e. that many investment tribunals have rejected similar arguments by investors that MFN clauses gave them an escape from procedural preconditions to investment arbitration that were present in the treaty they invoked to launch arbitration, but not in another treaty between the Host State and another State. Argentina apparently was quite right about this, except for a small problem: that MFN clauses get interpreted one-by-one on their own terms, treaty by treaty, so what’s Green Grass for one may be weeds for another. The problem that sunk Argentina in the Suez/Vivendi case is that the MFN clause in its investment treaty with Spain had been construed as being applicable to dispute settlement procedures – and thus to give Spanish investors the benefit of less-encumbered passage to arbitration found in other States’ investment treaties with Argentina — on approximately four other occasions by four other Tribunals.

The ICSID annulment committee, after duly reminding its readers that its mandate is limited to ensuring that arbitrators act like a Tribunal and not like a lynch mob, found no basis to dislodge the Tribunal’s thoroughly-explicated and case-law-supported position (you get in trouble if you say “precedent”) that the Spanish investor was entitled to the benefit of the France-Argentina treaty rule of No Time in the Cooler Before Arbitration.

So today’s lesson, readers: get out there in cyberspace and read the bilateral investment treaties of some likely arbitration-target States. The Grass-is-Greener question is a hot topic – not only for dispute resolution, but for substantive protections like “fair and equitable treatment” which might mean one thing between Spain and Ukraine, and something else between the US and Ukraine, and who knows what between the EU and Ukraine, who sort of finalized a new treaty courtesy of a Dutch ratification vote as reported in yesterday’s New York Times.

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Some of you, gluttons for punishment, demand longer, more heavily-annotated versions of these usually short and mainly citation-free posts. Trying to oblige, I draw your attention to:

• “A Glance Into History for the Emergency Arbitrator” just published in the Fordham International Law Journal as part of the collection of papers presented at the Fordham Conference On International Arbitration in November 2016.
• “Efficiency With Dignity: Early Dispositions and the Beleaguered Arbitrator”, a soon to be published manuscript on which your comments are welcomed.

Each is available upon emailed request, and the Fordham article is already uploaded to the Publications page of my website.

Best wishes.

Marc Goldstein

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Engaging in imitation as a sincere form of flattery I begin this post with a warning: very short post, as your author on May 8 is already a week overdue to you, and is threatened with duties not consistent with his devotion to you for the next two weeks.

So, let us consider, quickly and with more than the usual disarray and risk of error from which these posts chronically suffer, what we take away from an ICSID Annulment Committee’s decision dated May 5, 2017 in the Vivendi and Suez v. Argentina case (Suez & Vivendi Universal v. Argentine Republic, ICSID Case No. ARB/03/19, Decision on Annulment, May 5, 2017), in regard to the issue of the Arbitral Tribunal’s refusal to accept a challenge to the service of one of its members – a decision held by the Annulment Committee to have been not manifestly unreasonable. (Faint praise can be a blessing!)

Buffs who follow investment arbitration intensely will recall that a famous Swiss arbitrator famously joined the Board of Directors of a famous if not infamous Swiss bank in 2006, gave the Bank a list of her pending arbitrations, and in effect delegated to the Bank the task of ascertaining if any of her case commitments could result in her being perceived to lack independence of judgment as a Bank fiduciary. She determined not to investigate, on her own, the extent of the Bank’s proprietary or client-based investments in the companies appearing before her in this and another related investment arbitration against Argentina, and elected not to disclose, in either case, the fact of her election to the Bank’s board.

From the Annulment Committee’s holding and its remarks, we may discern that the following key elements of analysis by the Tribunal were at least not manifestly unreasonable: that the Bank’s holdings in the Claimant companies (proprietary and for clients in their accounts, combined), while making it a large if not the largest shareholder of each company with something north of two percent, constituted a very small fraction of the Bank’s investments even though the dollar amount of such investments, more than $2 billion, would appear substantial. Equally, while the stakes in the arbitration were in the hundreds of millions of dollars, in relation to the size and turnover of the Claimant companies the amounts in dispute were not particularly material, certainly not of “bet the company” proportions. Also, the arbitrator determined in 2009, at which point the Tribunal had unanimously upheld its jurisdiction but had not issued an award on liability or quantum, to give up her Board seat at the Bank.

Having promised brevity, I leave you with these questions: Should full time arbitrators, especially those who are regularly called upon to decide high-stakes cases involving large multinationals and States, confine their fiduciary service to predictably conflict-free institutions, mainly in the non-profit sector? Should an arbitrator’s duty to investigate potential conflicts of interest ever be delegable, at least not without disclosure to the parties of the determination to delegate? In the interest of making awards as invulnerable as possible, and of reducing the costs and uncertainties involved in post-Award challenges – whether in Annulment Committees or in ordinary courts – should prominent arbitrators involved with high-stakes disputes and high-profile entities more often err on the side of disclosure even where a strong case can be made under IBA Guidelines and other relevant conflicts guidance that disclosure is not required?

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This month Arbitration Commentaries applauds the ICC for a small but valuable edit made in Article 6(3) as part of the ICC Rules revisions that became effective March 1, 2017. This edit, as explained below, is likely to fix a recent small dent in the armor of compétence-compétence in the US courts.

In a recent case in a US District Court, the Court held that a challenge by the prospective Claimant to the validity of the arbitration agreement, raised in opposition to a motion to compel arbitration made by Respondent in Claimant’s plenary action, was to be decided by the Court not an arbitrator because Article 6(3) in the 2012 version of the Rules did not, as the Court construed it, delegate to the arbitrator arbitrability objections raised in Court by the putative arbitration Claimant in opposition to the putative Respondent’s motion to compel arbitration. (Eisen v Venulum, Ltd., 2017 WL 1126137 (WDNY Mar. 27, 2017, appeal filed, 2d Cir., April 25, 2017).

In the 2012 version of the Rules, presumably still extant when this case was briefed and argued, Article 6(3) provided in relevant part: “If any party against which a claim has been made does not submit an answer, or raises one or more pleas concerning the existence, validity or scope of the agreement to arbitrate … any question of jurisdiction… shall be decided directly by the arbitral tribunal….” One can appreciate why the ICC edited the Rule. Some judge might otherwise read it — in the English version of the Rules — to assign arbitrability issues to the Tribunal only when raised by a “party against which a claim has been made.” This was the interpretation of Article 6(3) advanced by defendant (putative arbitration Respondent) in its motion to compel arbitration in the Eisen case. The District Judge embraced it, and held that the issue of unconscionability of the arbitration clause, clearly a “validity” issue, was for the US District Court because the parties had not clearly and unmistakably delegated it to the arbitrators.

Evidently neither party informed the Court that the ICC had fixed the syntax problem effective March 1, 2017. Article 6(3) as amended reads: “If any party against which a claim has been made does not submit an answer, or if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement….” (emphasis supplied). Syntax problem solved. The intent of the Rule is not changed, presumably. Presumably it was always intended that under Article 6(3)  a jurisdiction issue raised by “any party” and not only a party “against which a claim has been made” would be resolved by arbitration. But the language difficulty was only acute in the pre-arbitral setting of a litigation in which the party asserting the claim denies that she is bound to arbitrate the claim. In the courthouse, she is not a party against whom a claim is made but rather is the Plaintiff. And that was the dispositive consideration for the US District Court in Eisen.

Defendant/Respondent counsel in Eisen evidently did not inform the Court of the March 1, 2017 amendment, and evidently also did not call the Court’s attention to Article 6(1) (unchanged from 2012 to 2017 version): “Where the parties have agreed to submit to arbitration under the Rules, they shall be deemed to have submitted ipso facto to the Rules in effect on the date of commencement of the arbitration, unless they have agreed to submit to the Rules in effect on the date of their arbitration agreement.” The parties in Eisen did not specify the 2012 Rules, so they are signed up for the 2017 version.

Somebody should tell the Judge! It’s not too late to correct the ruling. But at the moment the case seems destined for the US Second Circuit Court of Appeals, and presumably for a reversal by a Summary Order that finds the case to be squarely within existing Second Circuit precedent (Shaw Group and Linhas cases) that an agreement to arbitrate under ICC Rules delegates arbitrability issues to the Tribunal.

All of this makes a difference, of course, because the Court proceeded to find that the arbitration agreement was unconscionable — itself a close question in the context of the underlying dispute which concerns a securities scam based on fine wine investments, and, of particular note, an agreement between Toronto scammers and their Buffalo NY victim to arbitrate in the British Virgin Islands under BVI law. But chances are this analysis will fall by the wayside save as the Arbitral Tribunal that will hear the case might find it persuasive.

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