International Agreements to Assist Cross-Border Private Commercial Dispute-Resolution
A number of recent developments strengthen the international structure for the conduct of transnational dispute-resolution. The following provides brief summaries and links for additional information of these important developments. [Ed.]
Singapore Mediation Convention
A product of the UN Commission on International Trade Law (UNCITRAL—see www.uncitral.un.org), the UN Convention on International Settlement Agreements Resulting from Mediation was adopted on December 20, 2018 and opened from signature on August 7, 2019. See www.singaporeconvention.org/convention-text.html.
Joining the NY Convention on the Recognition and Enforcement of Arbitral Awards, the Choice of Court Convention and, now, the Convention on the Recognition and Enforcement of Foreign Judgments (see below), this Convention “applies to international settlement agreements resulting from mediation concluded by parties to resolve a commercial dispute.” It provides an efficient and harmonized framework for the enforcement of international settlement agreements resulting from mediation and for allowing parties to invoke such agreements. [Ed.]
2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters
This Convention deals with “the recognition and enforcement in one contracting state of a civil or commercial judgment given by a court in another contracting state.” It offers “certainty and legal security in cross-border transactions and litigation” and provides “confidence in civil court judgments handed down in other [convention] member states.” See www.hcch.net/en/instruments/conventions/full-text/?cid=137. [Ed.]
Uniform State Law-U.S.-Canada
The Uniform Law Commission (National Conference of Commissioners on Uniform State Laws, see www.uniformlaws.org), adopted the Uniform Registration of Canadian Money Judgments Act that is intended to facilitate the enforcement of Canadian money judgments in the United States. This Act, if adopted by U.S. states, provides a comparable approach to the one available for the enforcement of U.S. judgments in Canada via the Canadian Uniform Enforcement of Judgments Act and supplements the current Uniform Law for Foreign Country Money Judgments Recognition Act. [Ed.]
Cases & Developments of Interest and International Implications
The following cases raise issues that have possible application to California international arbitration. [Ed.]
Monster Energy Co. v. City Beverages
On Oct. 22, 2019, the Ninth Circuit reversed the district court, vacating a final arbitration award in favor of Monster. The defendant sought to vacate the award based on later discovered information that the arbitrator was a co-owner of JAMS—a fact that he did not disclose prior to arbitration.
The Ninth Circuit (2-1) panel held that the defendant had not waived its evident partiality claim because it did not have constructive notice of the arbitrator’s potential nonneutrality. It also held that before an arbitrator is officially engaged to perform an arbitration, to ensure that the parties’ acceptance of the arbitrator is informed, arbitrators must disclose their ownership interests, if any, in the arbitration. The arbitrator’s failure to disclose his ownership interest in JAMS, coupled with the fact that JAMS has administered 97 arbitrations for Monster over the past five years, created a reasonable impression of bias and supported vacatur of the arbitration award. The dissent disagreed that, in an evaluation of whether the arbitrator might favor Monster, the additional information the majority believed should have been disclosed would not have made a material difference.
With respect to implications for future arbitrators, in particular international arbitrations, any future international arbitrations in California should be well advised to disclose such ownership interests. [Ed.]
Rockefeller, the California Supreme Court and the Hague Service of Process Convention
The California Supreme Court in the case of Rockefeller Technology v. Changzou Sinotype Technology granted a petition for review after the Court of Appeal reversed an order denying a motion to set aside the judgment in a civil action. The Court heard that appeal on January 7, 2020 in San Francisco. The court limited review to the following issue: “Can private parties contractually agree to legal service of process by methods not expressly authorized by the Hague Convention?” See Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd., S249923 #18-131, Rockefeller Technological Investments (Asia) VII v. Changzou Sinotype Technology Co., Ltd., S249923. (B272170; 24 Cal.App.5th 115; Superior Court of Los Angeles County; BS149995.) See www.courts.ca.gov/1-s249923-resp-pet-rev-07118.pdf . [Ed.]
Uber Abroad *
Uber is threatening arbitration against the country of Colombia. See
National Security and FDI *
The United Nations Commission on Trade and Development (UNCTAD) issued a report about the increased frequency of countries blocking foreign investment because of national security concerns.
United Nations Conference on Trade and Development (“UNCTAD”) Database of Laws Regulating Foreign Investment *
UNCTAD database of laws that regulate foreign investment from 100+ countries, most of them in English. A useful tool for practitioners. See https://investmentpolicy.unctad.org/investment-laws?utm_source=World+Investment+Network+%28WIN%29&utm_campaign=8120131383-EMAIL_CAMPAIGN_2017_05_18_COPY_01&utm_medium=email&utm_term=0_646aa30cd0-8120131383-70064049
*Contributed by Richard Bainter, Attorney, San Diego [Ed.]