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The Eleventh Annual ITA-ASIL Conference was held on Wednesday, April 9, 2014. The ITA Academic Counsel in conjunction with the ASIL Annual Meeting presents this half-day conference annually in Washington, D.C. Scholarship is the hallmark of this conference, the papers from which are published in the law journal World Arbitration and Mediation Review.
This year’s conference focused on the important and timely topic of “Mass and Class Claims in Arbitration” and featured presentations by leading practitioners and academics. The conference Co-Chairs were Professors S. I. Strong, Associate Professor of Law at the University of Missouri School of Law, and Professor Christopher R. Drahozal, Professor of Law at the University Kansas School of Law. The Co-Chairs moderated two of the three presentations that were given in between brief opening and closing remarks from Professor Andrea K. Bjorklund, the Chair of the ITA Academic Council and a Professor at the McGill University Faculty of Law.
The first presentation was a keynote speech on “The Future of Large Scale Claims” delivered by Carolyn B. Lamm, a Partner at White & Case LLP who, among a host of accolades, is the lead counsel for claimants in the seminal ICSID arbitration Abaclat and others v. Argentine Republic. Ms. Lamm discussed the important distinctions between the Abaclat ICSID decision (where the applicable BIT seemed to contemplate multiple claimants with numerous references to “investors” in the plural) and the U.S. Supreme Court’s decision in cases like Stolt-Nielsen v. Animal Feeds (where the private contractual arbitration agreement at issue was silent as to whether class arbitration was permitted or prohibited). In addition, Ms. Lamm explained that the Abaclat case was not a class action or representative action in that each of the claimants was an individually named party, executed a written consent, and provided individual evidence of nationality, investment, and consent. She then detailed the various mechanisms and procedures that were developed to deal with the large number of claimants in a fair and practical manner.
This keynote speech was followed by a presentation on “Class Claims in Commercial Arbitration” moderated by Professor Drahozal. The first panelist was Deepak Gupta of Gupta Beck PLLC, who discussed his work on behalf of consumer interests in three important U.S. Supreme Court cases dealing with the intersection of class claims and arbitrations, namely Stolt-Nielsen v. Animal Feeds, AT&T Mobility v. Concepcion, and American Express v. Italian Colors Restaurant. From his perspective as a consumer rights advocate, Mr. Gupta observed that these cases have dramatically reduced the possibility of class arbitrations in the United States, as confirmed by recent statistics. The second panelist was Professor Geneviève Saumier of the McGill University Faculty of Law who provided the Canadian law perspective on the present and future of class arbitration. While there are a number of important differences between the Canadian and U.S. legal systems, most notably the fact that there is no Canadian federal law equivalent of the U.S. Federal Arbitration Act, Canadian courts have issued key rulings on arbitration that are consistent with the recent rulings of U.S. courts.
The final presentation was moderated by Professor Strong and examined the topic of “Mass Claims in Investment Arbitration.” Professor Michael Waibel of the University of Cambridge Faculty of Law agreed with the Dissenting Opinion in Abaclat that the ICSID Convention’s silence on the issue of mass claims should be interpreted as an implicit rejection of mass claims. He also expressed policy concerns with ICSID awards encouraging “holdout” bondholders to refuse buyout offers from Argentina, which would lead to the practical effect of requiring additional austerity from Argentina or higher bailouts from other countries and institutions. Sam Wordsworth QC from Essex Court Chambers also expressed his disagreement with the Abaclat and Ambiente decisions. In his view, these decisions were not supported by the language of the applicable BITs or the prior arbitral awards cited in the decisions.
Judging by the enthusiasm and excellent questions from the audience after each presentation, it was clear that the ITA and ASIL were successful in organizing another compelling conference of high substantive quality from highly distinguished presenters.
Hansel Pham is a Partner in the Washington D.C. office of White & Case LLP specializing in international arbitration and litigation.