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International law Quarterly 2012 Spring Issue

International law Quarterly 2012 Spring Issue

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Published by Santiago Cueto
International Arbitration is the focus of the Spring 2012 issue of the International Law Quarterly published by the Florida Bar's International Law Section. Editor Alvin Lindsay of Hogan Lovells delivers another extraordinary issue featuring leading international attorneys from across the globe.
International Arbitration is the focus of the Spring 2012 issue of the International Law Quarterly published by the Florida Bar's International Law Section. Editor Alvin Lindsay of Hogan Lovells delivers another extraordinary issue featuring leading international attorneys from across the globe.

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See “International Arbitration Clause,” page 60See “2012 ICC Rules of Arbitration,” next page
In ThIs Issue:
a publication of the florida bar international law section
www.foridabar.org • www.internationallawsection.org 
 
THE INTERNATIONAL LAW
Quarterly
Spring 2012Vol. XXX, No. 2
The International Law Quarterly
ngotiatig ad Dratig aItratioal Arbitratio Cla wita Foc o Lati Amrica: A Primr
B Rchrd C. Lre d Mrí Ege Rmíre, Mm, Flrd
Over recent years, international commercialarbitration has gained worldwide acceptanceas one of the preferred means of internationaldispute resolution. Recent advancement in LatinAmerica’s receptivity towards international ar- bitration, however, requires a new focus on theway businesses and counsel negotiate and draftthe arbitration sections of their agreements.These developments warrant a fresh look intothe main issues that parties should address whennegotiating and drafting an arbitration clause ina transaction connected to Latin America. Thisarticle will examine the various aspects of an
Vol. XXX, no. 2sprig 2012
T 2012 ICC Rl o Arbitratio
B Ke Wlfrd, Ld, Egld
The arbitration rules of the InternationalChamber of Commerce (“ICC”) are the mostwidely used in the world. In the 2010 Inter-national Arbitration Survey on Choices in In-ternational Arbitration,
1
50% of respondentsnamed the ICC as their preferred arbitrationinstitution, followed by the London Court of International Arbitration (“LCIA”) (14%) andAmerican Arbitration Association/InternationalCentre for Dispute Resolution (“AAA/ICDR”)(8%). When asked which arbitration institutionthey had used most frequently over the past
ve years, 56% of respondents named the ICC,
again followed by the LCIA and AAA/ICDR,each with 10% of the responses.
Given the popularity of the ICC Rules, therewas no immediate need to revise the version inforce since 1998. Nevertheless, the ICC decided torevise the 1998 Rules before it became absolutelynecessary to do so. Given widespread perceptionthat ICC arbitrations are often more expensivethan arbitrations under other institutional rules,one inevitable consideration behind the revisions
was to improve the speed and the cost efciency
of the arbitral process. The revisions also soughtto bring the ICC Rules up to date. Some revisionswere as simple as introducing gender-neutral lan-guage (e.g., “President” rather than “Chairman”),
 Special Litigation & Arbitration Issue
The 2012 ICC Rules o Arbitration ....1Negotiating and Drating an International Arbitration Clause with a Focus on Latin America: A Primer .........................................1Message rom the Chair ...................3 From the Editor ................................4 World Roundup .................................The Role o the International Arbitrator rom a Civil Law Perspective ..................................15 International Frauds and Ponzi Schemes ............................23 Counterclaims by Respondent States in Investment Arbitration: Two Recent Cases Leave Counterclaiming States Frustrated Again ..........................27 Litigation Note .................................32 Ill-Defned Boundaries? The Scope o Arbitral Authority in the United States ..........................................33 Section Scene ................................36 Damages Claims Following Antitrust Violations in European Markets ...38 Sovereign Bonds and the Struggle to Limit Article 25 o ICSID ...............41Arbitration in Poland— A Modern Approach and Vivid Development ...............................45 Avoiding Litigation in France by Properly Terminating Contractual Relationships ...............................51What’s Driving the Global Growth o Mediation in Business and Commerce? .................................55 
arbitration clause that should be understood,analyzed, and considered when negotiating anddrafting an international arbitration clause in aLatin American-related transaction involvingone or more U.S. parties.
Itittioal v. Ad hoc Arbitratio
Of primary importance when drafting anarbitration provision is deciding whether thearbitration should be ad hoc (i.e
.
, conductedwithout any pre-selected institutional admin-istration or supervision) or institutional
 
(i.e.,
 
Page 2 Spring 2012
The International Law Quarterly
See “2012 ICC Rules of Arbitration,” page 65
The
International Law Quarterly 
 is prepared and published by theInternational Law Section ofThe Florida Bar.
Nicolas Swerdlo, Miami
Chair 
Richard C. Lorenzo, Miami
Chair-elect 
C. Ryan Reetz, Miami
Secretary 
Peter A. Quinter, Miami
Treasurer 
Edward M. Mullins, Miami
Immediate Past Chair 
Mark R. Weiner, Tampa
CLE Chair 
Alvin F. Lindsay, Miami
Editor-in-Chie 
Angela Froelich, Tallahassee
Program Administrator 
Lynn M. Brady, Tallahassee
Layout 
Elizabeth Ortega
Media Contact,ECO Strategic Communications 
eco@ecostrats.com
Articles between 7 and 20 pages, double-spaced, involving the various disciplinesaffecting international law may be submittedvia email in MS Word format (with the useof endnotes, rather than footnotes).
 
Pleasecontact
Alvin.Lindsay@hoganlovells.com 
for submissions and for any questions youmay have concerning the
Quarterly 
.
DeADLIne FOR neXT IssueIs 20 AuGusT 2012.
2012 iCC RuLEs oF aRBitRation,
 from previous page
while some revisions introduced new provi-sions that allowed applications for interimrelief to be made to an emergency arbitrator or that facilitated multi-party and multi-contract arbitration.
The 2012 Rules
2
came into force on 1January 2012 and, with the exception of theemergency arbitrator provisions,
3
apply toall ICC arbitrations commenced after thatdate unless the parties’ arbitration agree-
ment species that the parties will submit
the arbitration to the rules in force on thedate of the arbitration agreement.
4
 
Wo Admiitr Arbitratioudr t nw ICC Rl?
Under the 1998 Rules, a practice arosewhereby some parties to arbitrations, par-
ticularly in Asia, sought to gain the benet
of having the arbitration conducted in ac-cordance with the ICC Rules but withoutthe cost commonly associated with ICCarbitration. They therefore entered into“mix-and-match” arbitration agreements providing that the arbitration would be con-ducted under the rules of the ICC but ad-ministered by another institution. The mostwell-known example of such a “mix-and-match” clause was
 Insigma TechnologyCo. Ltd. V. Alstom Technology
,
5
where anarbitration clause providing for ICC arbi-tration to be administered by the SingaporeInternational Arbitration Centre (“SIAC”)was upheld by the Singapore courts.The ICC responded by including a new provision in the 2012 Rules stating that theICC Court is “the only body authorized toadminister arbitrations under the Rules,including the scrutiny and approval of awards rendered in accordance with theRules.”
6
 
While the ICC’s intent is clear, itremains to be seen whether this provisionwill be effective in practice. Some partieswishing to avoid the cost associated withICC arbitration may attempt to contract outof this new provision.
emrgcy ArbitratorProviio
One of the most signicant changes in
the 2012 Rules is the introduction of a procedure allowing applications for urgentinterim or conservatory measures to besubmitted to an emergency arbitrator prior to the constituting of the tribunal.
7
This procedure is intended as an alternative toapplying to the national courts at the seat of the arbitration.
8
Prior to the introduction of the 2012 Rules, a party to an ICC arbitra-tion requiring urgent interim or conserva-tory relief could either apply to a nationalcourt for that relief or apply to the ICCfor the appointment of a pre-arbitral ref-eree. In practice, however, the ICC’s pre-arbitral referee procedure was rarely used.
9
 In the meantime, other institutions weredeveloping more sophisticated pre-arbitral procedures: the Stockholm Chamber of Commerce (“SCC”) introduced emergencyarbitrator provisions in its revised arbitra-tion rules that came into force on 1 January2010,
10
and SIAC followed suit six monthslater.
11
The 2012 Rules therefore follow agrowing trend in international commercialarbitration towards giving parties the op-tion to apply to an emergency arbitrator for urgent interim or conservatory relief.Applications under the emergency arbi-trator provisions are to be submitted to theICC Secretariat,
12
together with payment of the $40,000 fee, consisting of $10,000 for ICC administrative expenses and $30,000for the emergency arbitrator’s fees andexpenses.
13
This amount may be increasedat any time during the emergency arbitrator  proceedings if so decided by the Presidentof the ICC Court.
14
If the President of the
ICC Court is satised that the emergency
arbitrator provisions apply, a copy of theapplication will be transmitted by the ICCSecretariat to the responding party.
15
Therespondent will therefore be on notice of the application, negating the possibility of an ex parte injunction.These provisions impose a new roleon the President of the ICC Court, whoeffectively becomes a gatekeeper for ap- plications for emergency measures. ThePresident of the ICC Court will also appointthe emergency arbitrator, usually withintwo days of receipt of the application bythe ICC Secretariat.
16
Once the emergencyarbitrator has been appointed, he or she willestablish a procedural timetable in as shorta time as possible, usually within two days
 
Page 3Spring 2012
The International Law Quarterly
Message rom the Chair 
Looking back on the Bar year, I am proud of the successes the section has achieved and wish tothank, on behalf of the section’s Executive Council, the many section members who made them possible. In particular, we owe the section’s accomplishments to our committee leaders, whosehard work gave us thought-provoking and entertaining programs and publications, including the
 International Law Quarterly,
throughout the year.
We are especially proud of the section’s agship International Litigation and Arbitration Con
-ference, which celebrated its tenth anniversary on 23 and 24 February 2012 at the J.W. MarriottMarquis in downtown Miami. As it always has, the conference drew speakers from around the
globe—including the Coordinator for Legal Affairs to the Executive Ofce of the Dominican
Republic and the Secretary of Legislative and Judicial Affairs for the Dominican Republic—whospoke on a range of engaging topics, including the future of investor-state arbitration and recent Alien Tort Claim
Act Cases. See the photos from this conference in the Section Scene at pages 36 and 37.
The International Litigation and Arbitration Conference was just one of several fascinating conferences the sectionsponsored. Last October, the section held the International Income, Estate and Gift Tax Conference at the ConradHilton in Miami, which offered a full day of cutting-edge tax issues geared to attorneys engaged in cross-border 
transactions. October also brought section members together for the Midyear Meeting at the ofces of HoganLovells in Miami. And in November, more than 160 attendees and speakers, including Justice Noronha from the
Brazilian Superior Tribunal of Justice, gathered in São Paulo for the Section’s International Business TransactionConference, held in conjunction with the International Centre for Dispute Resolution and the American Chamber of Commerce in São Paulo.With the
 
7th
 
Annual Florida Bar International Law Section Pre Vis-Moot Competition held at the University of Miami School of Law in February, the section continued its proud tradition of mentoring law students. The sectionawarded scholarships to the Florida law schools while the Miami International Arbitration Society and the CharteredInstitute of Arbitrators donated special prizes. In addition, section members volunteered at the Pre-Moot, serving asarbitrators, hearing arguments from six Florida law school teams and the Loyola University College of Law in NewOrleans. Special congratulations go to the teams from the University of Florida and Nova Southeastern University,
who tied for rst place at the Pre-Moot, and to the teams from the University of Miami and Stetson University, who
took second and third place in Vienna at the Vis Moot.
Section members never stop learning, and those unable to get out of the ofce could take advantage of several
online CLE webinars on international law topics, including “What to Do When the Export Laws of the UnitedStates May Have Been Violated”; “Managing U.S. Discovery ‘Assistance’ in International Arbitration”; “Five WaysCorporations Can Limit Their International Liability Exposure”; “Managing Criminal Exposure Under the FCPAand Other Laws Impacting International Trade”; and “Ethics Considerations in International Dispute Resolution.”You can still purchase CDs of these webinars online, by fax or by mail. Please visit The Florida Bar’s website for complete order information.The section is especially grateful to Alvin F. Lindsay, who again served this year as the Editor-in-Chief of the
 ILQ
 —and to the rest of the
 ILQ
editorial staff—who continued to provide section members and all readers a varietyof articles on the latest international legal topics by authors from all over the world.Finally, the section is especially appreciative of its many generous sponsors, whose contributions help make allof this great work possible.I’m proud to have been part of yet another great year for the section, and look forward to Richard Lorenzo, theincoming 2012-2013 Chair, bringing us an even better one next year. Nicolas Swerdloff, 2011-2012 Chair 
 Hughes Hubbard & Reed, LLP 
N. Swerdlo

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