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While various authors claim that conflict of laws plays a limited role in arbitration, case law from numerous jurisdictions proves the opposite. Around 100 scholars and practitioners joined the debate at the Juridicum in Vienna on March 23 as Bucerius Law School, New York University’s Law School, McGill University Montreal and University of Vienna started the 25th Vis Moot with a conference on the topic of Conflict of Laws in Arbitration.
The nine presentations covered legal questions regularly encountered in arbitral proceedings with regard to conflicts of laws, e.g. the liability of arbitrators, the liability of arbitral institutions or the extension of arbitration agreements to third parties. All presentations were based on contributions to the forthcoming second edition of a book by Professor Franco Ferrari and Professor Stefan Kröll (eds) on Conflict of Laws in International Arbitration.
The Center for International Dispute Resolution was represented by both its directors, Professor Karsten Thorn and Professor Stefan Kröll. Starting from a recent decision of the Austrian Supreme Court (OGH), Professor Thorn elaborated on lois de police and the arbitration agreement, while Professor Kröll addressed conflict of laws questions in the context of insolvency and arbitration. Furthermore, Bucerius-Alumnus and CIDR-member Dr. Friedrich Rosenfeld delivered a speech on privilege in arbitration and the respective conflict of laws questions.
During the lunch break and in the presence of many authors, Professor Harry Flechtner of the University of Pittsburgh introduced the second edition of the commentary on the UN Convention on Contracts for the International Sale of Goods (CISG) edited by Stefan Kröll, Loukas Mistelis and Pilar Perales Viscasillas.
Pictures of the event may be found here: http://buceri.us/CIDR-vienna
On 20 March 2018 the CIDR, CAM-CCBC, the Hamburg Arbitration Circle and the Rechtsstandort Hamburg e. V. hosted the 2nd Hamburg International Arbitration Day, this year addressing third-party funding in international arbitration. Hailed by some as an invaluable tool to ensure access to justice and a level playing field for needy claimants, but derided by others as an incentive for litigants to bring frivolous claims with the support of financial gamblers to extract money from defendants, third-party funding has divided the arbitration field over the past few years.
In the wake of the presentation of the final report of the ICCA School of International Arbitration, the conference addressed the use of third-party funding in Europe and Latin America and considered some of the most pressing questions related to third-party funding, such as costs and disclosure.
After a welcome address by Professor Dr. Stefan Kröll of the CIDR, Carlos Forbes of CAM-CCBC and Friedrich-Joachim Mehmel of the Constitutional Court of Hamburg, an overview on the legal framework of third party funding was given by Professor Victoria Shannon Sahani from Arizona State University. Subsequently, Duarte G. Henriques from BCH elaborated on the topic of “Third-Party Funding: Turning a Blind Eye on Disclosure”, before Dr. Jonas Göler, judge at the Landgericht Düsseldorf (District Court of Düsseldorf), addressed cost issues in third-party funding.
After a joint Q&A-session on these three presentations, Professor Dr. Carlos Alberto Carmona from University of São Paulo gave first hand insights about third-party funding in Brazil, while Christian Stuerwald from Calunius Capital LLP shared the views of a funder on the situation of third-party funding in Germany and Europe. Following a second Q&A-session, Professor Dr. Petra Butler took the stage for a Vis Moot special. In her presentation, she elaborated on human rights, international arbitration, the CISG and how they might be employed in the fight for a fairer world.
The emerging fruitful discussions were continued at an evening reception in the Hamburg office of Taylor Wessing.
In the course of the 2nd Hamburg International Arbitration Day the CIDR and CAM-CCBC jointly organized an oral advocacy workshop addressed to practitioners, students and participants of the CAM-CCBC Hanse-Pre-Moot. We are very grateful that Professor Anthony Daimsis of University of Ottawa agreed to give a lecture under the title “How to Become a Successful Mootie – Basics of Oral Advocacy”. As the Director of University of Ottawa's Moot Program Professor Daimsis supervises the common law, Jessup and FDI moot teams of University of Ottawa as well as their Vis Moot team that won the 24th Vis Moot in Vienna in 2017.
In his lecture, Professor Daimsis elaborated on the core skill set for delivering legal arguments in a convincing way and shared valuable tips for the upcoming Vis Moot competition in Vienna.
In the course of the 2nd Hamburg International Arbitration Day, the CIDR and Calunius Capital jointly organized a workshop on how a third-party funder makes its funding decisions. After a brief introduction by CIDR Director Professor Stefan Kröll, Christian Stuerwald of Calunius Capital gave fascinating insights into the world of third-party funding in international arbitration. The audience of around 60 people contained many international students that were going to participate in this year’s CAM-CCBC Hanseatic-Pre-Moot since third-party funding is also part of the 2018 Vis Moot Problem.
On 19 March 2018 the CIDR and Luther hosted the first Luther Dispute Resolution Lecture at Bucerius Law School. We are grateful that Prof. Dr. Dres. h.c. Burkhard Hess of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law accepted the invitation to Hamburg and agreed to give a lecture on the recent Achmea-Decision (C‑284/16) of the European Court of Justice (CJEU).
In Achmea, the CJEU addressed the compatibility of Bilateral Investment Treaties (BITs) between Member States of the European Union with EU law. In spite of the opposing view of Advocate General Wathelet, the CJEU held that such BITs violate EU law and thereby followed the opinion of the EU Commission. In his keynote, Prof. Hess firstly elaborated on the context of the decision within the EU law and previous rulings of the CJEU and then assessed the consequences of the case for investment protection in Europe. After the presentationof this long awaited decision Daniel Segoin (French Ministry of Foreign Affairs, Agent to the CJEU), Dr. Ralf Willer (Hengeler Mueller, Counsel) and Dr. Stephan Wilske (Gleiss Lutz, Partner) joined Prof. Hess for a controversial discussion on the effects of the outcome of Achmea. In the course of the discussion, the audience of around 90 practitioners, academics and students also had the opportunity to ask questions.
On 6 March 2918, the Bucerius Alumni Group on Public International Law and the Bucerius Center for International Dispute Resolution organized a lecture and discussion on dispute settlement and the law of the sea with Dr. Ximena Hinrichs Oyarce, the Deputy Registrar of the International Tribunal for the Law of the Sea. The law of the sea is a special part of international law and is governed by the 1982 Law of the Sea Convention. This Convention takes full account of the principle that States shall settle their international disputes by peaceful means. It provides, in its Part XV, for a special dispute settlement system and establishes the International Tribunal for the Law of the Sea as an international judicial body to settle disputes concerning the Convention.
We want to gratefully thank Dr. Ximena Hinrichs Oyarce for her entertaining and informative lecture.
On 27 Februar 2018 a lecture and discussion on Immunity from Execution of Military and Cultural Property with Professor Matthew Happold took place at Bucerius Law School. The lecture was jointly organized by the Bucerius Alumni Group on Public International Law and the CIDR.
Recent years have seen numerous attempts to seize State property held outside a State's national territory to satisfy debts owed by the State to private persons. Assets targeted have included military and cultural goods (from visiting naval vessels to paintings on loan to foreign museums). But such attempts have generally been unsuccessful, even when debtors have relied on widely-worded waivers of immunity. Professor Happold – Professor of Public International Law at the University of Luxembourg – explained why.
The lecture was followed by vivid discussions and a reception.
On 14 February, the Opening Lecture of the CIDR took place in the Auditorium of Bucerius Law School.
After a welcome speech by Professor Dr. Thorn, in which he thanked the various participants and supporters of the CIDR, Professor Dr. Dr. h. c. mult. Katharina Boele-Woelki, President of Bucerius Law School, emphasised the importance and topicality of international dispute resolution. Thereafter, Friedrich-Joachim Mehmel, President of the Hamburg Constitutional Court, highlighted the benefits of Hamburg as a place for arbitration.
The welcoming speeches were followed by a topical introduction by Professor Dr. Kröll to the changes in arbitration law. The guest speaker Professor George Bermann of Columbia University, who had been invited to Hamburg by the CIDR for the Opening Lecture, presented the Restatement (Third) of the U.S. Law of International Commercial Arbitration and linked his observations to the various phases of arbitral proceedings. In the course of his lecture, Professor Bermann gave detailed insights into the development of the Restatement, in which he was and is significantly involved as the chief Reporter. Afterwards, Professor Gerhard Wagner, chair holder at Humboldt University of Berlin, spoke about German reform efforts; only a few regulations are to be changed, but some are to be added in order to take account of current developments. After the presentations, the participants had the opportunity to continue discussing while enjoying snacks and wine.
Video recording of the event: https://www.facebook.com/buceriuslawschool/videos/10154973248721059/