This program is the first in a multiple part curriculum on international commercial arbitration. It begins by providing an introduction to international commercial arbitration and then addresses the question of “who decides”—the court or the arbitrators—threshold issues involving international arbitration, such as whether an international arbitration agreement exists, whether certain claims or certain parties are covered by an international arbitration agreement, and whether conditions precedent to international arbitration are satisfied.
In this course, Stephen Anway explains that countries have adopted different approaches to this question. He contrasts the approach used by US courts, which have largely decided the question on a case-by-case basis, with the French legal system, which has adopted a bright-line, pro-arbitration test to addressing the “who decides” question.
In particular, Mr. Anway reviews the body of case law from the US Supreme Court addressing this question in different contexts—most recently in the investment-treaty arbitration context in BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014). Mr. Anway reviews that body of case law and discusses the traditional legal tools that have been used to explain the US courts’ varying decisions on this question.
Mr. Anway argues that those traditional legal tools (namely, the Kompetenz-Kompetenz and Separability Doctrines) are not adequate to reconcile the case law and discusses an alternative way of viewing the case law that reconciles each of the Supreme Court’s decisions and provides a framework for addressing the “who decides” question in the future.
I. Understand the “who decides” problem and its practical consequences
II. Differentiate between the approach undertaken by the U.S. and those of other countries, such as France
III. Know whether to seek assistance from courts on threshold issues
IV. Learn whether to resist court involvement on threshold issues when appropriate
V. Grasp the body of case law that has developed in the U.S. on the “who decides” question and the principles driving the court decisions
VI. Apply these principles to new fact patterns as they may arise in the future
Stephen Anway is Co-Head of Investment Arbitration and a partner in Squire Patton Boggs’ world-ranked international arbitration group. He has represented the winning party in many of the largest international arbitrations in the world over the past 15 years. Mr. Anway has worked in more than 30 countries and has represented clients – including 10 different sovereign nations and numerous foreign investors – in more than 75 international arbitration proceedings. Those cases include arbitrations brought under more than 10 different investment treaties, free-trade agreements and the Energy Charter Treaty. Every year, Mr. Anway teaches a 13-week doctrinal course on international arbitration at Case Western Reserve University School of Law, where he serves as an Adjunct Professor of Law.
Mr. Anway specializes in both investment treaty arbitration and international commercial arbitration. His investment-treaty arbitration experience includes representing the Czech Republic in three major cases in 2009, 2012, and 2013 (each worth approximately $100 million). The Czech Republic fully defeated the claims in each of them. More recently, he acted as counsel for the Slovak Republic in two billion-dollar investment treaty arbitrations, both resulting in major wins for the Slovak Republic, and for the Republic of Kosovo, which resulted in a full victory for Kosovo. He was also counsel to the Republic of Ecuador in a billion-dollar arbitration, which resulted in the then largest annulment in ICSID history in favor of Ecuador.
Mr. Anway also specializes in high-stakes natural gas price review arbitrations. In 2013, he acted as counsel in an International Chamber of Commerce (ICC) arbitration in which his client won more than $395 million. That award followed another ICC decision in August 2012, which awarded his client $580 million. Mr. Anway was also counsel for the winning party in two different UNCITRAL awards worth over $1 billion—one in 2005 and one in 2008.
In December 2017, Law360 named Stephen as one of the top three MVPs in international arbitration in the world. In August 2017, Who’s Who Legal named Stephen to its list of Arbitration Future Leaders 2018. He received the same honor in 2017. In March 2016, Law360ranked Stephen as one of the top 10 international arbitration lawyers under the age of 40. In February 2016, the National Law Journal named him one of the top 50 Alternative Dispute Resolution (ADR) lawyers. In June 2015, The American Lawyer awarded Stephen the Arbitration Award at its inaugural Transatlantic Legal Awards dinner in London. In both 2014 and 2015, the International Law Office awarded him the Client Choice Award for the Arbitration category in New York. In 2014, Crain’s Business named him to its Forty under 40. In June 2013, The American Lawyer Arbitration Scorecard published its list of the 20 Largest Commercial Arbitration Awards ever captured by the publication (dating back to 2001), and Mr. Anway represented the winning party in three of them.
This was one of the best presented CLE's I have seen. Mr. Anway is very knowledgeable and his presentation was clear, thoughtful and well done. Looking forward to parts 2 and 3. Thank you.
Very well presented and substantive.
looking forward to parts 2 and 3
Excellent instructor and speaker - articulate and knowledgeable - excellent materials, well presented.
Terrific. Such a growing area of the law.
Thorough and scholarly analysis, professionally presented and delivered. First rate.
Great analysis US and French systems.
very thorough, strong presentation
One of the best Online courses. I have 30 years experience with international insurance and reinsurance arbitration
excellent,logical, substantive and clear
Great job making gateway arbitration issues in the US understandable. Thanks!
excellent content and presenation
Excellent discussion of a confusing and complex point---
I took this course merely for the CLE. However it turned out to be extremely interesting.
Brilliant learned presentation of this portion of topic.
An excellent presentation on a topic that I knew nothing about - thanks!
Very interesting and very well presented
This was a good presentation. I will continue with the second part.
he really knows his stuff
Such an outstanding speaker! I learned a lot!
Very informative and interesting program.
Very substantive -- excellent speaker!
speaker was able to present very complicated issues in easily to understand language
Excellent overview, very good speaker.
Excellent speaker and presentation.
Very complex subject matter. Speakers were effective at explaining
excellent presentation and content
That was an outstanding presentation.
would take his part II, he was really good.
Extremely well organized
Very knowledgable. Appropriately paced. Good presentation.
Outstanding, clear, very useful
Answered a lot of questions for me.
excellent lecturer and course content
Excellent presentation and speaker. Thank you.
Excellently presented. Very interesting!
Demonstrates excellent command of complex topic.
Clear, concise, excellent course. Looking forward to the next.
brilliantly prepared - made a tough subject easy to understand and apply
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