The Halliburton Decision: UK Supreme Court Incorporates International Best Practices for Arbitrator Disclosure
by Andrew Flake
As the use of international arbitration expands, so does the need for consistency in its rules and practices, and confidence in its ability to ensure absolute impartiality. That is so for both advocates and arbitrators. So...
ICDR 2021: The Role of the Tribunal Secretary
A new Article in the updated ICDR Rules introduces what for many common law lawyers and domestic arbitrators is a curious character: the tribunal secretary. A tribunal secretary, much more common in the realm of international arbitration, is a junior associate who assists the tribunal in limited, non-decisionmaking roles.
Supreme Court Grants Cert in Servotronics Dispute; Likely to Resolve Circuit Split On Key International Arbitration Question
by Andrew Flake
On March 22, the Supreme Court granted cert in the ongoing Servotronics litigation, presenting the likely opportunity for the justices to decide an ongoing and important important question for parties to international commercial arbitrations: whether or not...
ICDR 2021: Third-Party Funding Disclosure in Commercial Arbitration
by Andrew Flake
As the market for alternative litigation financing or third-party funding (TPF) of commercial disputes has matured, more parties to commercial disputes are regularly seeking discovery of underlying funding documents. Depending upon the theory...
Sweeping for Mines: The Injunctive Relief Carve-out in Arbitration
by Andrew Flake
The "injunctive relief" carve-out, which lies quietly in various forms in many arbitration agreements, is a too-often overlooked landmine. Its most frequent purpose, allowing parties to go to court for emergency relief while preserving their right to...
ICDR’s 2021 Rules Address Compétence-Compétence; Tension with New Restatement Continues
by Andrew Flake
The International Centre for Dispute Resolution (ICDR) has updated its rules for international mediation and arbitration, effective March 1, 2021. Because ICDR has a record of thoughtfully advancing...
“Absolutely Incensed”: A Foreign Law Twist on Equitable Estoppel in Arbitration
by Andrew Flake
A Ninth Circuit battle between two Indian incense makers over whether their case should be arbitrated has still not burned out. After one correction and remand from the U.S. Supreme Court, the Ninth Circuit considered...
What We Can Learn from the First All-Virtual Patent Jury Trial
by Andrew Flake
After a week-long patent infringement trial in federal district court in Seattle, a civil jury hit gaming company Valve Corporation with a $4 million verdict for patent infringement....
11th Circuit Weights in on “Administrative Feasibility” as a Class Certification Requirement
A frequently-debated question in the class action realm is the role in certification analysis of "administrative feasibility." Must a plaintiff show, before a class is certified, that a manageable way to contact absent class members exists?
In the Third Circuit, for example, the proposed class representative must establish feasibility...
Mediation Principles for our National Conversation
Much of President Biden's inaugural address sounded historically resonant American themes of unity across differences. As I watched, I thought about the work ahead for not only Congress, but all of us. In attempting to forge consensus around policy and legislative solutions--to move...