International Commercial Arbitration (Part 1): Who Decides Threshold Issues - the Court or the Arbitrators?

(1294 Ratings)

Produced on: June 18, 2014

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 66 minutes
Difficulty Intermediate

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.

 

Learning Objectives: 

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

Faculty

Stephen Anway

Squire Patton Boggs

Stephen Anway is a partner in Squire Patton Boggs’ world-ranked international arbitration group. He spends 100% of his counsel time representing clients in major international arbitrations and has acted as counsel in some 50 international arbitration proceedings brought under more than 10 different investment treaties, free-trade agreements and the Energy Charter Treaty.  Each spring, 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 Slovakia in the precedent-setting case, Achmea B.V. v. The Slovak Republic, Final Award dated 20 May 2014, in which Slovakia fully defeated the foreign investor’s claims under the Dutch-Slovak Bilateral Investment Treaty and was awarded its costs and legal fees.

 

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.

 

Mr. Anway is the exclusive recipient of the 2014 Client Choice Award from the International Law Office (ILO) for the “Arbitration” category in New York.  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.

Reviews

JL
Jill L.

Excellent

PH
Paul H.

looking forward to parts 2 and 3

DC
Dennis C.

Excellent instructor and speaker - articulate and knowledgeable - excellent materials, well presented.

PO
Patrick O.

Terrific. Such a growing area of the law.

SW
Steven W.

Thorough and scholarly analysis, professionally presented and delivered. First rate.

RM
Robert M.

Great analysis US and French systems.

KP
Keith P.

very thorough, strong presentation

ML
Michael L.

One of the best Online courses. I have 30 years experience with international insurance and reinsurance arbitration

JR
Jenik R.

excellent,logical, substantive and clear

DB
Daniel B.

Great job making gateway arbitration issues in the US understandable. Thanks!

PW
peter w.

excellent content and presenation

JN
John N.

Excellent discussion of a confusing and complex point---

JW
Jerri W.

I took this course merely for the CLE. However it turned out to be extremely interesting.

GM
Gerald M.

Brilliant learned presentation of this portion of topic.

PA
Paul A.

An excellent presentation on a topic that I knew nothing about - thanks!

JT
John T.

Excellent

BS
Bradley S.

great class

RJ
Roger J.

Great Information

PE
Patricia E.

Very interesting and very well presented

TD
Timothy D.

This was a good presentation. I will continue with the second part.

JK
Jonathan K.

he really knows his stuff

MA
Martha A.

Such an outstanding speaker! I learned a lot!

MG
michael g.

Very informative and interesting program.

TS
Thomas S.

Great presentation.

JG
John G.

very interesting

TM
Thomas M.

Very substantive -- excellent speaker!

JM
James M.

Excellent Speaker

DC
Dennis C.

speaker was able to present very complicated issues in easily to understand language

ME
Mark E.

iNFORMATIVE

AP
Anthony P.

Excellent overview, very good speaker.

RB
Richard B.

Excellent speaker and presentation.

JP
Jodi P.

Very complex subject matter. Speakers were effective at explaining

UL
Uri L.

Very informative

BB
Burnice B.

Well done.

JG
Joseph G.

excellent presentation and content

MW
Michael W.

That was an outstanding presentation.

JS
Jennifer S.

would take his part II, he was really good.

EC
Eric C.

GREAT

CK
Christopher K.

Extremely well organized

DF
David F.

Very knowledgable. Appropriately paced. Good presentation.

KK
Kathryn K.

Outstanding, clear, very useful

GN
Gary N.

Great Job

KD
KIMBERLY D.

great!

JS
Jeff S.

Answered a lot of questions for me.

WS
wiliiam s.

Very Good

MP
Michael P.

great lecture

JC
John C.

Excellent program

SK
Stephen K.

excellent lecturer and course content

DH
David H.

Excellent presentation and speaker. Thank you.

HW
Hugh W.

Great Speaker

JS
Jacqueline S.

Excellently presented. Very interesting!

TD
Thomas D.

Demonstrates excellent command of complex topic.

PM
Pamela M.

Clear, concise, excellent course. Looking forward to the next.

MB
Michael B.

brilliantly prepared - made a tough subject easy to understand and apply

NF
Nathaniel F.

Excellent presentation

Load More

$59

$ 59 Alternative Dispute Resolution and International Law In Stock

Accreditation

Get Unlimited Access to Lawline Courses

Unlimited CLE Subscription gives you access to take almost any course from our catalog and earn as much CLE credit as you need.