Lest we forget, many are the arbitrations that are subject to state arbitration law rather than the Federal Arbitration Act (“FAA”). And one should never underestimate the differences between those regimes. For example, under the FAA, the grounds for vacatur of an award are few and narrowly construed. See FAA §10(a), (9 U.S.C. §10(a)). Accordingly, federal court doctrine permitting vacatur of an award on public policy grounds affords only a very narrow opening, including in cases of sexual harassment in the workplace. State law may be less limiting, however, concerning the significance of public policy in such cases.
In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2017 U.S. App. LEXIS 3815 (2d Cir. Mar. 2, 2017), the U.S. Court of Appeals for the Second Circuit provides something of a primer regarding enforcement in the United States of a foreign-issued arbitral award, which is subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and Chapter 2 of the Federal Arbitration Act (“FAA”). In an effort to clear up confusion, the court (i) defined several pertinent terms and explained their significance, (ii) urged practitioners and judges to use consistent terminology, (iii) examined when a district court sits in primary jurisdiction versus in secondary jurisdiction, (iv) explained the differences between a non-domestic arbitral award and a foreign arbitral award, and (v) described the treatment of each when brought to a U.S. district court for enforcement.
In an earlier post we provided advice on how to interpret the words “may” and “must” when they appear in arbitration clauses that are to be interpreted under U.S. law. Among other things, we explained that an arbitration clause that says that a party “may” submit a dispute to binding arbitration will be viewed as mandatory in U.S. courts if any party chooses to arbitrate.
That post led us to question whether those “may” and “must” words are interpreted consistently in other English-speaking common law countries. In typical litigator fashion, and for the reasons set forth below, we conclude that it depends. The relevant laws of Canada, England, and Singapore are apparently consistent with that in the United States, while those of India and Australia are not.
An expert witness obviously should be thoroughly prepared to give oral testimony in an adversarial proceeding, and frankly that can best be done by counsel. Is that always permitted in international arbitrations? (This is part of a series of posts and articles offering advice “from the trenches” concerning the use of experts in international arbitration.)
Institutional arbitration rules are largely silent about this question. Occasionally, they expressly permit witness communications with counsel. Thus, in a few instances, witness “interviews” by counsel in anticipation of testimony are expressly permitted by applicable institutional rules. See, e.g., the commercial arbitration rules of the London Court of International Arbitration (“LCIA”), Art. 20.5 (subject to applicable laws); and of the Singapore International Arbitration Center (“SIAC”), Art. 25.5. More broadly, the institutional rules do not expressly prohibit the preparation of expert witnesses by counsel either. As a practical matter, in the absence of detailed prescriptions by the arbitration-administering bodies and in the interest of certainty, this procedural point may have to be agreed by the parties and/or ordered by the arbitral Tribunal.