Washington Lawyer - August 2017 - 8

OUR MEMBERSHIP

INTERNATIONAL ARBITRATION
TRENDS & GLOBAL TRADE

Courtesy of JAMS

Courtesy of King & Spalding

Patricia Blumenthal, White & Case LLP

By Sarah Kellogg

J. MICHAEL TAYLOR

CAROLYN B. LAMM

PATRICK NORTON

Partner
King & Spalding

Partner
White & Case LLP

Mediator and Arbitrator
JAMS

If the Trump administration proceeds with efforts to
update the North American Free Trade Agreement
(NAFTA), I think one area that likely will receive
attention is the arbitration provision for addressing
trade remedy decisions. The existing binational
arbitration rules were novel and creative at the time
they were written, but everyone who has been
involved in those NAFTA cases has now learned
some things. The existing NAFTA arbitration rules
allow for the dumping and subsidy determinations
by a national agency to be reviewed by a binational
arbitration panel instead of by the national appellate courts. A principal question for the NAFTA
negotiators will be whether such arbitration provisions should even continue to be included in a
revised NAFTA. If so, then other questions that will
need to be addressed include how best to ensure
that arbitration determinations are not delayed by
procedural maneuvering, and how to ensure that
panel determinations are more readily reviewable.

I see arbitration continuing to grow as the best and,
in some cases, the only option for companies in this
era of globalization. What other choice is there,
realistically? Domestic courts are not really an
option. There aren't any other international
methods of dispute resolution that offer the same
kind of promise of arbitration, not to mention that
the awards are enforceable because there are international treaties providing for enforcement. You
cannot say the same of domestic courts internationally. This is true for the United States, which
doesn't have any multilateral conventions for
enforcement of its court judgments. Your court
judgments rely on comity for enforcement, and
there are invariably a multitude of objections to any
one ruling, particularly if there are any kind of
punitive damages.

One of the big trends going on over the past 10 or
15 years is the geographic expansion of international arbitration. To some extent, it means that
more people in the United States and North
America have been willing to go to arbitration. The
big growth areas have been in Latin America and
Asia, partly as a consequence of the general expansion of Asia as part of the world economy. It is much
larger than it was 15 or 20 years ago, and it also
reflects changes in East Asian business. A lot of
Asian companies themselves are much more globalized. They're conducting business much more
like international corporations as opposed to the
old family-run businesses that used to dominate
much of Asia. . . . The businesses themselves have
become more internationalized, more globalized.
They see what's going on elsewhere, and they
gradually come around to it.

WASHINGTON LAWYER

* AUGUST 2017 *

Sarah Kellogg is a regular contributor to
Washington Lawyer.

http://www.dcbar.org

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