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…
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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…
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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…
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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…
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Dear Readers: Apologies to those of you who enjoy these posts, for a relatively long hiatus. It has been a busy time these past several months. Today’s post is lengthy, warranting its organization into numbered paragraphs. A 2-1 divided panel decision of the US Court of Appeals for the District of Columbia Circuit on August 9, 2024, in an Investor-State award enforcement case implicating the New York Convention and the “arbitration exception” of the Foreign Sovereign Immunities Act (FSIA), deserves serious attention because of what did not happen. Two judges of the Court rejected the dissenting judge’s contention that the…
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Alter ego entities are a pervasive presence in complex international commercial arbitrations If those entities are named as Respondents, and they are non-signatories of the arbitration agreement, two procedural courses are possible. The first, and perhaps the more common, is that the alter egos will raise an objection to arbitral jurisdiction, and participate in the arbitration subject to that objection. This participation may or may not entail an express submission of the alter ego issue to the arbitrators – and whether there has been such a submission of course affects the scope of judicial review of the Tribunal’s decision on…
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