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VI Symposium on Salient Issues in International Arbitration: "Does a Transnational Legal Order Exist in International Arbitration?"

On November 10 and 11, 2021, the AUWCL’s Center on International Commercial Arbitration and the Swiss Institute of Comparative Law held the “Symposium on International Arbitration: Does a Transnational Legal Order Exist in International Arbitration?” With the participation of some of the world’s leading voices in private international law as well as emerging scholars in the field, a total of twenty academics and practitioners from around the globe presented their research.

The event was opened by Prof. Dr. Horacio A. Grigera Naón, Director of the Center on International Commercial Arbitration; Prof. Dr. Krista Nadakavukaren Schefer, Co-Director of the Swiss Institute of Comparative Law (Lausanne); Prof. Dr. Ignacio Tirado, Secretary-General of UNIDROIT (Rome); and Prof. Dr. Christophe Bernasconi, Secretary General of the Hague Conference on Private International Law (HCCH), The Hague. The speakers at this opening ceremony highlighted the fact that globalization has generated an increased need for greater unification of private international law to enable more efficient economies and social interactions. However, they also recognized that differences subsist. The study of these differences was the object of the symposium.

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The first panel was chaired by UNIDROIT Secretary General Prof. Dr. Ignacio Tirado. The panelists Prof. Dr. Michael J. Bonell, Professor Emeritus at the University of Rome I Sapienza, and Eleonora Finazzi Agrò, attorney at law in Rome, addressed the application of the UNIDROIT Principles in International Commercial Arbitration, presenting extensive evidence of the Principles’ application by arbitral tribunals in numerous economic sectors and in application of a wide variety of institutional arbitration rules. Prof. Dr. Sébastien Manciaux, who teaches at the University of Burgundy in France, provided additional insights into the spreading of the notion of a transnational legal order among various fields of international legal practice, such as commercial, investment, and sports arbitration. He proposed recognizing various transnational legal orders for each of these fields. Prof. Dr. Björn Arp, Fellow at the Center on International Commercial Arbitration, provided an overview of how Latin American courts of justice applied common concepts of international commercial arbitration as developed through “leading cases” in traditional arbitral jurisdictions in the U.S., France, the United Kingdom, and Switzerland. With specific examples he showed that while Latin American courts are receptive of foreign legal concepts related to arbitration, the application was far from being uniform.

The second panel was chaired by Prof. Dr. Jane Willems, Associate Professor at Tsinghua University in Beijing (China). She coordinated the discussion about a transnational legal order in international commercial arbitration. Four panelists provided their individual insights into this question: Pedro Lacasa, Lawyer from the Universidad Nacional de Asunción in Paraguay, addressed the possibility of a transnational legal order specifically in the context of interim measures. Lilit Nagapetyan, Ph.D. candidate at Queen Mary University of London, discussed whether the notion of a transnational legal order could help formulate a more homogeneous and predictable legal framework to respond to allegations of corruption in international arbitration proceedings. Maryam Pourrahin, Ph.D. candidate at Tilburg University, focused on common rules applicable to disputes emerging under FRAND (“Fair, Reasonable, and Non-Discriminatory”) terms for the use of patents. The panel was rounded up with a review of the current status of the 1958 New York Convention in U.S. judicial practice, presented by Oluwaseun O. Ajayi, Senior Attorney at the Office of General Counsel, Government Accountability Office (GAO) in Washington, D.C.

The third panel, which was held on the morning of Thursday, November 11, 2021, was chaired by Prof. Dr. Rodrigo Polanco Lazo, Legal Counsel for Hispanic Legal Systems at the Swiss Institute of Comparative Law (Switzerland). This panel covered the notion of transnational legal order in international investment arbitration. Prof. Dr. Mary Mitsi, Lecturer in Commercial Law at Queen Mary University of London, discussed the extent to which there exists a dialogue between legal systems, arbitrators, and judges. Her research revealed a useful insight into how legal concepts spread across arbitral awards by the force of their reasonableness, and how this practice leads to increased unification of the law of international investment protection. Prof. Dr. Andres Talavera from the Universidad del Pacífico in Lima (Peru) added to Mary Mitsi’s explanation and argued for the emergence of a “transnational investment treaty lex” or “Transit Lex,” in alluding to the notion of “lex mercatoria.” Ioana Bratu, Legal Counsel at GE Renewable Energy in London, focused on the EU Court of Justice’s practice with preliminary rulings cases to maintain and nurture the EU’s persistent objection against the formation of a transnational legal order in international arbitration, especially in investment arbitration. Prof. Dr. Qingxiu Bu, Associate Professor and Chair of the Global Law Initiative at Sussex Law School, explained about the challenges that China faces with the very notion of arbitrability of antitrust disputes as an obstacle to international arbitration in the country. He explained this issue in light of the recent landmark case in Shell v. Huili, which is regarded as a sign of enabling antitrust arbitration in China.

The fourth and final panel was a monographic focus on preventing disputes, the fight against corruption, and the role of international arbitration. The penal was chaired by Prof. Dr. Krista Nadakavukaren Schefer, and included Aloysius Llamzon, Partner at King & Spalding, Washington, D.C., Lucinda Low, Partner at Steptoe & Johnson, Washington, D.C., and Roberto Echandi from the World Bank Group. These scholars and practitioners with extensive experience in anti-corruption matters discussed how certain early warning mechanisms, red flags, and other forms of issue tracking may help curtail the pernicious effects of corruption in large investment projects. However, the experts also acknowledged the huge challenges and complexities involved in the early detection and fight against corruption.

Finally, Prof. Dr. Horacio A. Grigera Naón, and Prof. Dr. Krista Nadakavukaren Schefer, closed the event. The papers will be published in early 2022 in a special issue of Transnational Dispute Management (TDM), a prominent publication on topics related to international arbitration.