Reporting on the Sciences Po - NYU colloquium on ‘Exceptionalism in International Commercial Arbitration’, by Vladislav Osykin

Sciences Po Law School teamed up with NYU School of Law and the Arbitration Academy to host a colloquium on ‘Exceptionalism in International Commercial Arbitration’, reuniting key international players to explore this concept in both the pre- and post- award stages, in various jurisdictions across the globe.

In his opening word, Professor Franco Ferrari interrogated the definition of ‘exceptionalism’. He noted that the discussion of an exception cannot happen without first defining a general rule, the latter, in his opinion, being the task of a comparative analysis. Professor Ferrari questioned the connotations that we attach to exceptionalism: are the national idiosyncrasies we decry not the same as those positive features we use to promote jurisdictions as arbitration-friendly? Professor Ferrari warned about the potential consequences of the exceptionalist mindset: isolationism, arrogance, and the inability to accept a different approach.

Moderated by Maître Carine Dupeyron, the first panel saw Maître Carole Malinvaud, Professor Francesca Ragno, Professor Loukas Mistelis FCIArb , and Professor Rafael Alves sharing their insights about the particularities of arbitration at the pre-award stage in various jurisdictions, including Brazil, France, Italy, and England. The panel discussed arbitrators’ disclosure obligations, law governing arbitration agreements, and interactions between courts and tribunals.

From Professor Ragno, the attendees heard about the latest developments in Italian arbitration law, including in the matters of arbitrators’ continuous duty of disclosure and grounds for arbitrator challenges.

Professor Alves told the audience about the features of the Brazilian arbitration community and the triple-hatting problem that this community is facing. From him, we also learned who writes ‘arbitral letters’ and why.

Maître Malinvaud discussed French jurisprudence, highlighting, among other things, the parallels in how both Brazilian and French law impose the duty of cooperation, obliging the parties to share the information necessary for the tribunal to comply with its disclosure obligations. She also elaborated on the vernacular approach of the French courts which consist of applying règles matérielles (substantive rules) specific to international arbitration.

Professor Mistelis talked about the impact of Halliburton v Chubb and Enka v Chubb. He also commented on the ongoing reform of the English Arbitration Act and revealed the reasons the latter does not taste ... vanilla.

In the second panel, moderated by Judge Fabienne Schaller, Professor Caroline Kleiner, Professor Friedrich Rosenfeld, Professor Juan Ignacio Stampalija, and Professor Mariana França Gouveia discussed the manifestations of exceptionalism at the post-award stage in different states, including Argentina, France, Germany, Portugal, Brazil, the UK, and the US. The panel shared their views on varying standards and grounds for setting aside and reviewing arbitral awards, as well as on particularities of the enforcement process and resisting it.

Professor Kleiner walked the audience through the salient features of the French arbitration law, including the local courts’ refusal to apply the New York Convention in favour of a more lenient local regime.

Professor Rosenfeld helped the audience see the German perspective on the topic. Among other things, we learned that one could not challenge a negative award on jurisdiction before German courts, as well as about the plans for this rule to change. He also elaborated on the application of the doctrine in US enforcement cases.

Professor França Gouveia re-emphasised the importance of determining whether there even was a uniform standard, against which one could measure the exceptionality of a particular national approach. She further highlighted the Abengoa case, a matter giving rise to issues of arbitrator impartiality and independence, and the question of whether the courts of one State need to give deference to decisions on the validity of an award rendered by the courts of another.

Professor Stampalija’s comments offered an insight into ‘actions to protect constitutional rights’ under Argentine law, which the parties sometimes use to skirt the limited grounds for judicial review of awards. He also spoke about minority cases, where the domestic courts reviewed arbitral awards on the merits because the tribunals had applied a ‘clearly inapplicable law’.

Closing the conference, Diego P. Fernández Arroyo noted a considerable degree of harmonization in international arbitration, owing to such instruments as the UNCITRAL Model Law and the New York Convention. He did, however, stress that idiosyncrasies are not rare and that what we see as signs of ‘arbitration friendliness’ are often departures from the uniform regime. In conclusion, Professor Fernández-Arroyo expressed his hope - or, perhaps, dream - that national courts would take inspiration from the gumption of international tribunals who routinely apply transnational solutions, which are better suited for international arbitration, instead of always seeking out applicable national rules. We may say Professor Fernández-Arroyo is a dreamer; but let this recent Singaporean case show he is not the only one.

About the author:
Vladislav Osykin is an alumnus of the Sciences Po LLM in Transnational Arbitration and Dispute Settlement and is currently an associate at Laborde Law in Paris.