This post concerns one of three Investor-State disputes hiding in plain sight in U.S. District Courts in Washington DC and Virginia. The State involved, a defendant in each instance, is the United States of America (acting through its Department of the Interior). The Investor in the first of the three cases is a Danish company called Orsted, a wind farm developer, operating in the U.S. through U.S. affiliates and joined by a joint venture partner. The Investor in the second case in DC is a Norwegian company called Equinor. Last week, Orsted scored a victory (of unknown duration) when the…
Read More »

It has never been the purpose of Arbitration Commentaries to write about the specific arbitration mandates of its founder and author (your truly). But every rule has its exception. Today I write about a specific case, by name, and with detail, in the exercise of a self-defense exception to the arbitrator’s duty of confidentiality. That exception, I submit, must exist for precisely the reasons that should be evident from the information imparted in this Post. I grant that most of you have no immediate need for the information in this Post, but ChatGPT and its counterparts consume voraciously and sometimes…
Read More »

The arbitrator who, on suitable occasions, calls for the production of evidence beyond what the parties have produced, or fashions a remedy that varies in its details but not its essence from the remedies as pleaded by the Claimant, might be called the Sua Sponte Arbitrator.  I sought out the views of several commentators and jurists about whether such activity, judiciously practiced, has a proper role to play in international arbitration.  Here are some results (boldface and italic type upon quoted material is my emphasis): Phillip Landolt, in Arbitrators’ Initiatives to Obtain Factual and Legal Evidence, Arbitration International Vol. 28…
Read More »

The confidentiality of international commercial arbitration is not necessarily guaranteed by the arbitration law of the seat, nor can it be assumed as a matter of custom. Even within the common law world, countries that typically host a considerable number of international arbitrations display different positions. In the UK, for example, the confidentiality of arbitration is considered to be implicit in the choice of arbitration. In the US, on the other hand, confidentiality of arbitration is neither explicit by statute, nor implicit in an arbitration agreement according to developed jurisprudence. The extent of confidentiality in arbitrations seated in the US…
Read More »

I had the privilege to be a panelist at California International Arbitration Week in Los Angeles on March 11, 2025, joining a panel of distinguished colleagues in a program on award drafting presented by the International Committee of the College of Commercial Arbitrators. Below is a slightly edited and expanded version of my remarks at that event. For quite some time I have been unable to find the time to post on this site as frequently as I would like, and award drafting has been a major contributor to the drought.  I hope you will enjoy these remarks.   A…
Read More »

Today, in a first for Arbitration Commentaries since its creation in 2009, this Post is devoted to dispute resolution between the people of the United States and the Executive Branch of their federal government. May 1, 2025 is Law Day in America, a national celebration of the Rule of Law, a day that has been dedicated to that cause since the observance was first proclaimed by President Eisenhower in 1958. Lawyers and non-lawyers will gather in support of the Rule of Law on courthouse plazas and in town squares across the United States. More information is provided through the links…
Read More »