Forum Shopping in the International Commercial Arbitration Context Bearbeitet von Franco Ferrari 1. Auflage 2013 2013. Taschenbuch. X, 458 S. Paperback ISBN 978 3 86653 263 2 Format (B x L): 14,1 x 22,4 cm Gewicht: 612 g Recht > Zivilverfahrensrecht, Berufsrecht, Insolvenzrecht > Zivilverfahrensrecht allgemein, Gesamtdarstellungen > Internationales Zivilprozessrecht, Schiedsverfahrensrecht Zu Leseprobe schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.
Forum Shopping in the International Commercial Arbitration Context
Forum Shopping in the International Commercial Arbitration Context edited by Franco Ferrari s e l p sellier european law publishers NYU Center for Transnational Litigation and Commercial Law
ISBN (print) 978-3-86653-263-2 ISBN (ebook) 978-3-86653-991-4 The Deutsche Nationalbibliothek lists this publication in the Deutsche Natio nalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. 2013 by sellier european law publishers GmbH, Munich All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior per mission of the publisher. Production: Karina Hack, Munich. Typesetting: fidus Publikations-Service GmbH, Nördlingen. Printing and binding: Friedrich Pustet KG, Regensburg. Printed on acid-free, non-ageing paper. Printed in Germany.
Preface For many, forum shopping is a term with disparaging or pejorative connotations, indicating something that commentators and courts consider to be evil and, therefore, must be avoided. And it is to reach that result that various policies against forum shopping exist on a domestic, a regional and an international level. As for the reasons adduced to justify the aforementioned anti-forum shopping stance, which commentators seem to question more and more, they include the assertion that forum shopping goes against the principle of consistency of outcomes, or as one commentator puts it, decisional harmony, apparently a fundamental tenet of virtually any legal system, that forum shopping overburdens certain courts and creates unnecessary expenses as litigants pursue the most favorable, rather than the simplest or closest, forum, that forum shopping contrasts with the idea of a level playing field in that it may distort the playing field, and that forum shopping may create a negative popular perception about the equity of the legal system. Whether one agrees or not with the aforementioned anti-forum shopping stance, one must agree on forum shopping being a reality that influences virtually all decisions on where to bring a lawsuit. This book addresses to what extent forum shopping is relevant in the international commercial arbitration context. It contains the papers presented at the conference organized by NYU's Center for Transnational Litigation and Commercial Law entitled Forum Shopping in the International Commercial Arbitration Context held at NYU School of Law from February 28th to March 2nd, 2013. First and foremost, the Center for Transnational Litigation and Commercial Law wishes to thank all the contributors for accepting the invitation to come to NYU School of Law to give a talk and submit the papers published in this book. Many thanks are also due, however, to dott. Emilio Bettoni, LL.M. (NYU), for his invaluable help in editing this book. New York, June 2013 Franco Ferrari Director Center for Transnational Litigation and Commercial Law v
List of Contributors George A. Bermann Jean Monnet Professor of European Union Law, Director of the Center for International Commercial and Investment Arbitration, and co-director of the European Legal Studies Center at Columbia Law School. Christopher Boog Partner in the international arbitration group at Schellenberg Wittmer. His practice focuses on acting as counsel and arbitrator in international commercial disputes. Jack Coe, Jr. Faculty Director of Pepperdine s LL.M in International Commercial Arbitration Filip De Ly Professor of Private International Law and Comparative Law at Erasmus School of Law in Rotterdam, The Netherlands. He is inter alia a Board member of the Netherlands Arbitration Institute and a member of the Council of the ICC Institute of World Business Law. Domenico Di Pietro Lecturer, International Arbitration, University Roma Tre. Acts both as counsel and as arbitrator in international arbitration with Freshfields Bruckhaus Deringer. John Fellas Partner in the New York office of Hughes Hubbard & Reed LLP, practicing in the fields of international litigation and arbitration. Franco Ferrari Professor of Law, NYU School of Law; Director, Center for Transnational Litigation and Commercial Law; Chaired Professor of International Law, Verona University School of Law. Brian King Partner in the international arbitration group at Freshfields Bruckhaus Deringer. Mr. King s practice centers on acting as counsel or arbitrator in investment treaty and international commercial disputes. vii
List of Contributors Alexander Layton English barrister (Queen s Counsel), arbitrator and author. His wide practice covers commercial and other disputes, many involving private international law issues or arbitration. Loukas Mistelis Clive Schmitthoff Professor of Transnational Commercial Law and Arbitration; Director of the School of International Arbitration, Queen Mary University of London. Rahim Moloo Associate in the international arbitration group at Freshfields Bruckhaus Deringer in New York. Peter B. Rutledge Associate Dean for Faculty Development and the Herman E. Talmadge Chair of Law at the University of Georgia. Maxi Scherer Senior Lecturer in International Arbitration at Queen Mary, University of London and Global Professor at New York University School of Law, Paris. She is also Special Counsel at Wilmer Cutler Pickering Hale and Dorr LLP. Linda J. Silberman Martin Lipton Professor of Law, New York University, and Co-Director of the Center on Transnational Litigation and Commercial Law. She is a leading figure in private international law and transnational litigation, covering both commercial and family law areas. Aaron Simowitz Acting Assistant Professor at New York University School of Law, where he teaches the Lawyering course and co-teaches the International Litigation seminar with Professor Linda Silberman. Robert H. Smit Co-Chair of Simpson Thacher & Bartlett LLP s International Arbitration Practice, and Adjunct Professor of International Arbitration at Columbia Law School. viii
Table of Contents Preface v Forum Shopping in the International Commercial Arbitration Context: Setting the Stage 1 Franco Ferrari A U. S. Perspective on Forum Shopping, Ethical Obligations, and International Commercial Arbitration 23 Aaron D. Simowitz Forum Shopping and the Determination of the Place of Arbitration 53 Filip De Ly Forum Shopping at the Gateway to International Commercial Arbitration 69 George A. Bermann Anti-arbitration Injunctions and Anti-suit Injunctions: An Anglo-European Perspective 131 Alexander Layton Enforcing Orders Against Third Parties (and Parties) for the Taking of Evidence in International Arbitration 151 John Fellas Interim Measures Relevance of the Courts at the Place of Arbitration and Other Places 199 Christopher Boog Courts and the Constitution of the Arbitral Tribunal: A Comparative Analysis of Standards of Arbitrator Independence and Impartiality 235 Robert H. Smit Forum Shopping in International Arbitration Forum Non Conveniens and Lack of Personal Jurisdiction 253 Peter B. Rutledge ix
Table of Contents Setting Aside of Arbitral Awards and Forum Shopping in International Arbitration: Delocalization, Party Autonomy and National Courts in Post-Award Review 277 Loukas Mistelis Forum Shopping and Enforcement of Foreign Arbitral Awards: Notes on Public Policy 297 Domenico Di Pietro Forum-Shopping and Post-Award Judgments 313 Linda Silberman / Maxi Scherer Making Remission and Other Curative Mechanisms Part of the Forum Shopping Conversation A View from the U. S. with Comparative Notes 347 Jack J. Coe Jr. Enforcement after the Arbitration: From National Courts to Public International Law Fora 393 D. Brian King / Rahim Moloo x