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ARBITRATING THE VIS CASE IN PRACTICE

Date

Friday, May 7, 2021
Time

9am (São Paulo) | 1pm (London) | 2pm (Hamburg) | 5:30pm (Mumbai) | 8:00pm (Hong Kong)

Venueonline via Zoom

Every year many of the young participants of the Vis Moot, students as well as practitioners leave Vienna or Hong Kong with the question: How would the case have developed in a real arbitration?

Following the successful virtual Vis Moot 2021, the Center for International Dispute Resolution at Bucerius Law School and the Centre for Commercial Law Studies at Queen Mary University of London are pleased to join forces with SCAI, CIArb and the Moot Alumni Association for a one and a half hours seminar on “Arbitrating the Vis Case in Practice”.

Leading practitioners will explain how they would have advised their clients in the case as counsel for Claimant or Respondent, what strategy they would have adopted, how they would approach the case as a Third Party Funder and how they would have conducted it as an Arbitral Tribunal.

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Speakers

Florian Haugeneder

Florian Haugeneder heads the arbitration team at KNOETZL, a leading law firm in arbitration, litigation, alternative dispute resolution, business crime, and corporate crisis management. Before co-founding KNOETZL in 2016, Florian was the head of the arbitration practice of an international law firm.

Florian has extensive experience as counsel and arbitrator under the rules of the major arbitral institutions, including the ICC, ICSID, SCC, DIS, LCIA and VIAC, as well as in international and domestic ad-hoc arbitration such as UNCITRAL. He has successfully represented clients in some of the largest and most complex disputes in the CEE and SEE regions. A special focus of his practice is the international law on the protection of foreign investments under bilateral and multilateral investment protection treaties.

Florian’s practice specializes in engineering and construction, energy, joint ventures, as well as commercial and corporate disputes. His experience includes numerous M&A projects, the construction and operation of a major fiber-optic cable infrastructure, various thermal and hydro power plants, gas transportation and storage, hotel management contracts, road and railway construction and rehabilitation and a sewer system.

Florian is the elected President of the Austrian Arbitration Association (ArbAut), he lectures at the University of Vienna and frequently speaks and publishes on international arbitration and investment protection. Who’s Who Legal has recognized him as a thought leader in international arbitration.

Sherlin Hsie-lien Tung (董希琳)

Sherlin Tung is a partner in the international arbitration and litigation team at Withers and based in the Hong Kong office.

She is a specialist in international arbitration and is experienced under a number of leading arbitral rules. Sherlin has advised clients in Asia, the Americas, and Europe on all aspects of cross-border disputes from pre-dispute negotiations, during arbitration and litigation proceedings, and post arbitration and litigation proceedings including the enforcement of awards or judgments. Sherlin has the rare experience of all aspects of an international arbitration: from acting as Tribunal Secretary, working at the world's leading arbitral institution, in-house counsel for a publicly listed international conglomerate, to private practice. She has developed a distinctive set of skills allowing her to understand the overlaying objectives not only of her clients but also the strategies implemented by counterparties, how arbitral tribunal members think, and how arbitral institutions operate.

Sherlin is a U.S. qualified attorney (California and New York) and a Registered Foreign Lawyer in Hong Kong. She is a native Mandarin Chinese and English speaker and has working proficiency in Spanish and basic German skills (A1). Sherlin frequently speaks and gives lectures on international cross-border disputes and transactions in conferences and seminars worldwide.

Dorothee Schramm

Dr. Dorothee Schramm is a partner at Sidley Austin LLP in Geneva and a top-rated European arbitration lawyer with particular experience in technology, engineering and life sciences, including pharmaceuticals, medtech and biotech. She is also a member of the firm’s Global Life Sciences Leadership Council. Praised by clients as “especially  impressive” and “most proactive and responsive,” she has strong advocacy skills and has prevailed in claims in excess of US$1.9 billion over the last few years. She is also regularly appointed as an arbitrator to decide high-value international disputes. Beyond her analytical and legal skills, Dorothee has developed several innovative arbitration tools.  Dorothee is a Member of the Executive Committee of the Swiss Arbitration Association (ASA), a member of the International Advisory Board of the Vienna International Arbitral Centre (VIAC), and a member of the Disciplinary Commission of the Gymnastics Ethics Foundation (GEF).

Loukas Mistelis

Professor Loukas Mistelis is acknowledged authority on international dispute resolution and investment treaty law: he is listed on the Who’s Who Commercial Arbitration since 2007, the ICSID List of Arbitrators, is the recipient of the GAR Award for best arbitration lecture of 2013. He is also listed as one of the Thought Leaders in International Arbitration since 2017 and the inaugural Legal500 International Arbitration Powerlist (2019). He is the Clive Schmitthoff Professor of Transnational Commercial Law and Arbitration, former Director of the School of International Arbitration (2002-2019) and Director of the QMUL-UNIDROIT Institute of Transnational Commercial Law at the Centre for Commercial Law Studies, Queen Mary University of London.

He practises part-time as arbitrator, counsel and expert through Mistelis & Haddadin. His substantial arbitration experience covers ad hoc and ICC, ICSID, LCIA, UNCITRAL, GCC, SCC, Swiss Chambers and Moscow cases and also Emergency Arbitrator proceedings under ICC Rules.

Parties in these cases were from Afghanistan, Argentina, Austria, Bangladesh, BVI, Canada, Cayman Islands, Cyprus, Czech Republic, Egypt, France, Georgia, Germany, Greece, Hungary, India, Ireland, Italy, Korea, Kuwait. Libya, Lithuania, Malaysia, Morocco, Moldova, Nigeria, Poland, Romania, Russia, Spain, Switzerland, Tajikistan, Turkey, Ukraine, UAE, UK, Ukraine, and the United States. Subject matters included foreign direct investment, sales contracts, transport contracts, aviation, distribution agreements, counter-trade, finance contracts, syndicated loans, privatization, construction and infra-structure projects, defence contracts, mining, administration of natural resources, mining, and oil and gas transactions. He has also given advice on English and Greek law as well as international law as an expert in arbitral proceedings and also before Swiss courts.

Dana MacGrath

Dana C. MacGrath is an Investment Manager and Legal Counsel at Omni Bridgeway, responsible for leading the company's investments in international arbitration matters out of the United States. She joined Omni Bridgeway in 2019 from Sidley Austin LLP, where she was a partner focusing on international arbitration and litigation in aid of arbitration, including compelling arbitration and judicial enforcement of arbitral awards.

Dana has long been a champion of diversity in international dispute resolution.  Dana is President of the ArbitralWomen, on the Steering Committee of the ERA Pledge (Arbitration Pledge) and the Steering Committee of REAL, Racial Equality for Arbitration Lawyers.

Dana has long been an adjunct law professor at Brooklyn Law School teaching a seminar on International Commercial Arbitration and coaching the Brooklyn Vis Moot team.

Dana regularly speaks and writes on international arbitration and arbitration funding issues.  She recently co-authored a chapter on Third-Party Funding and Covid-19 in International Arbitration and the Covid-19 Revolution published by Kluwer in late 2020 and articles on the U.S. Circuit Court split on the application of 28 USC § 1782 to foreign private commercial arbitrations.

Lauro Gama

Prof. Dr. Lauro da Gama e Souza Jr.graduated from the State University of Rio de Janeiro (UERJ) in 1987 and was admitted in 1988 to the Brazilian Bar. He holds a Masters in International Relations (PUC-Rio, 1992), a LL.M degree in Comparative Law (McGill, 1999), and a Doctorate degree in International Law (Univ. São Paulo, 2004). Since 1991 he has been Adjunct Professor at the Pontifical Catholic University of Rio de Janeiro (PUC-Rio), where he currently teaches Private International Law and International Commercial Arbitration. He has authored books and articles published in specialized journals. He participated in the working group of the UNIDROIT Principles (2008-2010) and also in the working group of the 2015 Hague Principles. He is a member of the CISG Advisory Council, where he acted as rapporteur of CISG Advisory Opinion no. 17 on Limitation and Exclusion Clauses. He lectured at the Hague Academy of International Law and his course titled “Les Principes d’UNIDROIT et la loi applicable aux contrats du commerce international” has been published in the Recueil des cours, Collected Courses, Tome 406 (2020). To this date Lauro has acted as counsel and arbitrator in more than 120 cases, under the rules of the ICC, LCIA, UNCITRAL and Brazilian arbitral institutions. Mr. Gama has served as President of the Brazilian Arbitration Committee (CBAr) from 2013 to 2015. He currently represents Brazil as a Member of the ICC Court of International Arbitration.

Ann Ryan Robertson

Ann Ryan Robertson, Chartered Arbitrator, FCIArb, is the global President of the Chartered Institute of Arbitrator. An International Partner in Locke Lord LLP’s Houston office, Ann acts as counsel and arbitrator in a wide variety of complex business disputes.  She has been named to Global Arbitration Review’s “Who’s Who Legal: Arbitration” since 2015 and to “The Best Lawyers in America, International Arbitration/Governmental” since 2014. Ann is a member of a number of arbitral institution panels, including the International Centre for Dispute Resolution (ICDR), the Singapore International Arbitration Centre (SIAC),  the Hong Kong International Arbitration Centre (HKIAC), the Asia International Arbitration Centre (AIAC), the Korean Commercial Arbitration Board (KCAB), the International  Institute for Conflict Prevention & Resolution (CPR), the British Virgin Islands International Arbitration Centre  (BVI-IAC), the Maldives International Arbitration Centre (MIAC) and the Court of Arbiration for Art (CAfA).  She is frequent author and speaker on arbitration issues, an adjunct professor at the University of Houston Law Center and for eighteen years coached the Law Center’s Vis Moot team.  A recipient of many awards and honors, most recently, the United States Department of Trade selected Ann as one of ten arbitrators appointed by the United States to serve as a dispute settlement panelist pursuant to Chapter 31 of the United States-Mexico-Canada Agreement (USMCA). Long a supporter of diversity in arbitration, Ann is also a founding member of ArbitralWomen.

Stefan Kröll

Stefan Kröll is Professor of International Dispute Resolution at Bucerius Law School in Hamburg, co-director of its Center for International Dispute Resolution, and independent arbitrator. In addition, he is one of the directors of the Willem C. Vis Arbitration Moot Court and Germany’s national correspondent to UNCITRAL for arbitration. He is also a visiting professor at the School of International Arbitration at CCLS (Queen Mary, University of London) and has acted as an advisor and consultant for the relevant organisations of the German Government (GIZ, IRZ) and USAID in various countries. UNCITRAL has retained him as one of the three experts to prepare the Digest on the Model Law on International Commercial Arbitration.

Stefan has acted as arbitrator or emergency arbitrator in over 90 cases and is regularly listed as one of the leading arbitrators in Germany (Band 1; Arbitration Practitioner of the year 2017). He has been a Visiting Fellow at NYU School of Law (3/12 and 09/18) and Cambridge University (academic year 2014/2015). Stefan has published widely in the field of international commercial arbitration and commercial law, including the books “Comparative International Commercial Arbitration” (co-authored with Lew/Mistelis), “International Commercial Arbitration – A transnational perspective” (co-authored with Várady/Barceló), “Arbitration in Germany – The Model Law in Practice” (co-editor with Böckstiegel/Nacimiento), “Conflict of Law in Arbitration” (co-editor with Ferrari), and “CISG – A Commentary” (co-editor with Mistelis/Perales Viscacillas).

THE FOLLOWING SECTION IS CURRENTLY UNDER CONSTRUCTION. THE INFORMATION YOU CAN FIND BELOW IS NOT UP TO DATE.

Past Events

On 10 December 2018, Mr. Henning Oberbeck, legal counsel at Shell, delivered a talk on "The Role of In-House Counsel in International Arbitration". The talk was jointly organized by the Bucerius Alumni e.V. (Subdivision "Dispute Resolution") and the CIDR.

Often, the debate on the current status and the future of International Arbitration tends to focus on the perspectives of arbitrators, counsel, arbitral institutions and academics and not on the views and wishes of the users. The new arbitration rules of the ICC and the DIS seek to address the market's demands for greater efficiency and cost saving. Still, in-house counsel are rarely provided a platform to share their practical experiences with, and expectations with regard to, arbitral proceedings.

In his talk, Mr. Oberbeck stressed the important role that arbitrators play in increasing the efficiency of arbitral proceedings. In his point of view, arbitrators often hide behind their fear that the award will be annulled later on. Instead, arbitrators should act more courageous and pragmatic, which the parties would often honour more than lengthy proceedings and voluminous awards.

The talk was followed by a vivid discussion and a reception sponsored by the Bucerius Alumni e.V. (Subdivision "Dispute Resolution").

As part of a series of lectures focussing on Arbitral Institutions, the Bucerius Center for International Dispute Resolution, the Bucerius Alumni e.V. (Subdivision “Dispute Resolution”) and the DIS40-Nord were delighted to welcome Dr. Francesca Mazza as guest speaker on: The Role of Arbitral Institutions in International Arbitration – The DIS Perspective.

Dr. Francesca Mazza is the General Secretary of the DIS, one of the world’s leading and Germany’s #1 arbitration institute. Francesca inter alia has been the driving force behind the recent rule changes.

The lecture was followed by a very fruitful discussion moderatet by Dr. Felix Dörfelt.

On 4 July 2018, at the first CIDR Dispute Resolution Talk – a new lecture series sponsored by Luther – Prof. Andrea K. Bjorklund of McGill University Faculty of Law delivered a talk on 'Arbitral Authority to Combat Corruption'.

Arbitrators have many powers – express, implied, and those inherent in the very process of arbitration. Disputes that involve corruption put into question the breadth of those powers. The first tribunals confronted by cases involving corrupt acts were concerned about their taint bringing into disrepute the process of arbitration. Tribunals in later cases have shown a more nuanced approach but often with apprehension about suggestions that arbitration could be viewed as helping one party to the corruption profit from, or profit notwithstanding, his bad behavior, leading to dismissal on various grounds.

In her talk, Prof. Bjorklund argued that arbitral tribunals have the inherent authority to ensure that the quasi-adjudicatory process of arbitration is not subverted by allegations of corruption that might or might not prove spurious. She elaborated on why rather the early dismissal of such arbitral proceedings will tend to hide the problem and potentially exacerbate it.

The talk was followed by a fruitful debate that was continued during a reception sponsored by the Alumni Association of the Bucerius Law School.

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.

Watch the Lecture on YouTube

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/

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