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Part II Legal Framework: Courts, Statutes and Treaties, E The Contractual Context, 1 A Cautionary Tale about Home-Town Justice »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
Not long ago, a multinational enterprise with headquarters in Boston needed two cargo vessels to transport ore from its South American mines to its North American production facilities. A shipyard in a developing country with good harbors and cheap labor seemed the right place to build the vessels. Extended negotiations led to a contract between the shipyard and the multinational’s Liberian shipping subsidiary, which was established to purchase and operate the vessels in a tax-efficient manner. The multinational itself guaranteed its subsidiary’s obligations....

Acknowledgments »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park

Part II Legal Framework: Courts, Statutes and Treaties, D The Architecture of Arbitration, 2 Amending the Federal Arbitration Act »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stockbrokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use the North...

Part IV Selected Issues for Further Study, C Taxation, Arbitrability and Tax »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
“Taxes are what we pay for civilized society.” Oliver Wendell Holmes1 Like fire and passion, taxation can bring ruin as well as blessing. Justice Holmes rightly observed that taxes provide the wherewithal for public benefits we associate with civilized life. However, fiscal measures also have a darker side, sometimes serving as a vehicle for indirect asset confiscation. In the oft-cited paraphrase of another American Supreme Court Justice: “The power to tax is the power to destroy.”2 In light of taxation’s special potential for abuse, many investment treaties...

Part II Legal Framework: Courts, Statutes and Treaties, A Arbitral Jurisdiction, 2 The Arbitrability Dicta in First Options »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
In May of 1995 the U.S. Supreme Court handed down a significant decision about the allocation of functions between judges and arbitrators. First Options of Chicago v. Kaplan1 arose from an arbitral award rendered against both an investment company and its owners with respect to debts owed to a securities clearing house. The owners argued that they had never signed the arbitration agreement from which the arbitral tribunal drew its power, and consequently were not bound by its award. The Supreme Court held that the scope of the arbitration agreement was a matter...

Part II Legal Framework: Courts, Statutes and Treaties, B Judicial Supervision, 3 The Arbitral Situs and the Lex Loci Arbitri »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
There must be no Alsatia in England where the King’s writ does not run. Lord Justice Scrutton1 A company that submits a controversy to arbitration may later regret having abandoned recourse to the courts. On the day of reckoning, the sage chosen to decide the dispute may no longer seem so wise to the losing party, and the loser might consider refusing to comply with the arbitrator’s decision. Some legal system, therefore, must legitimize the arbitrator’s authority. Otherwise, the award remains an unenforceable conciliation attempt that the parties are free to...

Part II Legal Framework: Courts, Statutes and Treaties, E The Contractual Context, 2 The Arbitration Clause: Drafting Considerations »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
Despite their critical importance, arbitration clauses are often sloppy cut-and-paste jobs that tempt disaster when the transaction becomes unraveled. To some extent, this is because arbitration is a bit like art. Not because both words begin with the first letter in the alphabet. Rather, in arbitration as in art people often claim to be experts notwithstanding their lack of (or even contempt for) what is involved. Surprisingly or not, the legal and practical intricacies of drafting arbitration clauses regularly receive a lack of attention that would be...

Part IV Selected Issues for Further Study, A Financial Transactions, 1 Arbitration in Banking and Finance »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
The human species, according to the best theory I can form of it, is composed of two distinct races: the men who borrow and the men who lend. Charles Lamb1 The world’s bifurcation into debtors and creditors has created yet another class of people: those involved in resolving disputes between lenders and borrowers. To promote reliability in financial dispute resolution, credit agreements have generally provided that potential controversies will be submitted either to courts in the bank’s home jurisdiction,2 or to courts of a major money center such as London or New...

Arbitration of International Business Disputes: Studies in Law and Practice »

William W. Park

Part III Arbitral Proceedings: Establishing the Facts and Applying the Law, A Counterpoise Between Fairness and Efficiency, 1 Arbitration’s Discontents: of Elephants and Pornography »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
Arbitrators often complain about frivolous motions and excessive requests for documentary discovery. Scholars worry that arbitration allows business managers to evade statutory norms that further vital public policies. Winning claimants complain that judicial review of awards impairs neutrality and finality. Losing litigants grumble that arbitrators apply the law either too strictly or not strictly enough. Discontent aims principally at the abuse of otherwise legitimate procedures, whether in arbitration itself or in related court actions. Arbitrators and judges...

Part I The Nature of International Business Arbitration, 5 Arbitration’s Procedural Matrix »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
In 1891, a Dutch doctor named Eugene Dubois unearthed in Java a skull fragment with a low forehead, buried only a few metres from where a human thigh bone was later found. Concluding (incorrectly) that both fossils came from the same creature, he announced the discovery of evolution’s missing link, an extinct primate called Pithecanthropus erectus that was neither fully ape nor fully human.1 The evolution of ideas also implicates a search for connections and missing links. Sometimes the hunt yields only dead ends, like Dr Dubois’s hypothetical primate. Sometimes,...

Part I The Nature of International Business Arbitration, 2 Arbitrator Integrity: The Transient and the Permanent »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
“Everything is in flux.” Heracleitus† “Righteousness endures forever.” Psalm 111†† The somewhat excessive words attributed to Heracleitus find some application in the current search for ethical standards applicable to arbitrators sitting in international disputes. New patterns of misbehavior create new types of ethical challenges. Few criteria for evaluating arbitrator independence and impartiality will likely stay foolproof for long, given how ingenious fools often prove themselves to be. Heracleitus notwithstanding, however, change does not occupy the entirety...

Part I The Nature of International Business Arbitration, 3 Arbitrators and Accuracy »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
An arbitrator’s primary duty remains the delivery of an accurate award, resting on a reasonably ascertainable picture of reality. Litigants wanting only quick or cheap solutions can roll dice, and have no need of lawyers. Evidentiary tools in arbitration should balance sensitivity toward cost and delay against the parties’ interest in due process and correct decisions. If arbitration loses its moorings as a truth-seeking process, nostalgia for a golden age of simplicity will yield to calls for reinvention of an adjudicatory process aimed at discovering the facts,...

Part II Legal Framework: Courts, Statutes and Treaties, A Arbitral Jurisdiction, 5 The Arbitrator’s Jurisdiction to Determine Jurisdiction »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
The boundaries of my language signify the borders of my world. Ludwig Wittgenstein1 Legal phrases, maxims and rules often enhance efficient dispute resolution by providing intellectual hooks on which to hang analysis, as well as mental handles with which to arrange otherwise complex arguments. Like the questions we ask, the language of the law can shape the choices ultimately made by arbitrators and judges. Words can beget misunderstanding as well as insight, however. Expressions which bear multiple meanings often find themselves employed with promiscuous...

Author Biography »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park

Part IV Selected Issues for Further Study, B Intellectual Property, Betting the Family Jewels: Intellectual Property »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
Intellectual property (IP) rights often constitute a corporation’s key assets—its “family jewels” so to speak. Thus any dispute over these rights is usually taken very seriously. As a result, IP lawyers often have particularly strong feelings with respect to the relative costs and benefits of arbitration related to patents, trademarks and copyrights. While arbitration clauses frequently find their way into technology licenses (particularly in a cross-border context) the wisdom of this practice has been vigorously debated. Ironically, the alleged drawbacks to...

Part IV Selected Issues for Further Study, E Comparing Arbitration and Court Selection, 2 Bridging the Gap in Forum Selection »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
You shall not be partial in judgment … Deuteronomy 1:17 The fear that foreign judges might not always respect Moses’ admonition to impartiality often leads business managers to seek enhancement of adjudicatory neutrality through various forum selection devices. Concern to avoid the other side’s “home court advantage” usually results in either an arbitration agreement (entrusting the controversy to a private decision-maker) or a court selection clause (granting power to courts at a designated location). Both mechanisms tend to enhance political and procedural...

Part IV Selected Issues for Further Study, D Investment Arbitration, 1 The Challenge of Sovereignty »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
When legal claims directly implicate public interests, the role of arbitration may be open to question. If challenges to environmental regulations or tax assessments create risks for general community welfare, an argument exists that resolution of such controversies should remain the prerogative of courts, rather than being surrendered to arbitrators. To some extent, societal well-being can be jeopardized by any large arbitration, even if exclusively between private companies. A license dispute between two major pharmaceuticals might result in an award that...

Contents »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park

Part II Legal Framework: Courts, Statutes and Treaties, A Arbitral Jurisdiction, 3 The Contours of Arbitral Jurisdiction »

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)
William W. Park
In A Tale of Two Cities Charles Dickens spins a story about love, sacrifice and redemption in London and Paris during the French Revolution. Two men are devoted to the same woman, the charming Lucie Manette. The suitor who eventually marries Lucie is a French exile named Charles Darnay, who is unjustly condemned to death in Paris for the crimes of his cruel uncle. The other, a drunken English lawyer named Sydney Carton, ultimately takes the place of his rival at the guillotine, thus finding moral nobility through an act far better than he had ever done before....