Ethics in International Arbitration Award Enforcement
Tuesday, 13 April 2021
1:00 PM-2:30 PM EDT / 10:00 AM-11:30 AM PDT. (1.5 hours)
Zoom Webinar
Program
The last decade has seen an increasing use of the United States as place for the enforcement of large international arbitration awards. In that time, numerous U.S. judgments – many totaling well over $1 billion – have arisen from the recognition and of arbitral awards by foreign arbitral tribunals. Today, numerous very large award enforcement petitions are pending in the U.S. courts. Many of these involve arbitral awards against private corporations, while many others involve arbitral awards rendered against governments or state-owned entities.
The growth in award enforcement litigation in the U.S. courts raises myriad interesting legal issues. One such issue, oven overlooked, is the ethical and professional responsibilities of U.S. counsel involved in such matters. The award creditor’s legal team is typically required to search for and pursue assets of the losing party. The award debtor’s legal team often is seeking either to deny recognition to the foreign award (e.g., on the basis it is being challenged in foreign set aside proceedings) or to prevent the award creditor from attaching assets. Each of these positions potentially raises unique and potentially ethical issues for the lawyers involved.
How far can an award creditor’s counsel go in searching for assets of the losing party? What responsibilities does US counsel have to ascertain whether a judgment he or she is asked to enforce was obtained through corruption or other improper means such as collusion? How far can an award debtor’s counsel go in attacking the validity of the foreign award? When an enforcement petition is pending before the U.S. courts, what duties does counsel have in informing the U.S. court about the status of and nature of parallel foreign award enforcement (or challenge) proceedings? What responsibilities does U.S. counsel have with respect to related enforcement proceedings outside the United States? And are there ethical restrictions on the role a third party funder can play in aiding enforcement?
Moderated by Lawrence W. Newman (Baker & McKenzie) and Timothy G. Nelson (Skadden, Arps, Slate, Meagher & Flom LLP), the 90-minute panel will discuss topics such as:
- Ethical considerations for enforcement counsel in searching for and identifying assets.
- Ethical issues in presenting and pursuing an enforcement petition, including where questions are raised concerning the provenance of a foreign award.
- Counsel’s disclosure duties to a U.S. court concerning parallel foreign enforcement or set aside actions.
- Ethical issues arising from the involvement of third party funders.
- Dealing with confidentiality and other restrictions concerning the use of information obtained through discovery or proceedings in other jurisdictions.
- Service issues, e.g. what enforcement process can be served on the award debtor’s lawyer (and what papers may a lawyer refuse to accept).
- How to explain foreign set-aside proceedings to a U.S. court (e.g., where fraud or public policy is being claimed as a basis for denying enforcement).
- Updating the US court on the status of parallel foreign set-aside proceedings.
- Issues for counsel where the award debtor is a foreign government that is not recognized by the United States.
- Ethical issues arising when a potential award debtor explores asset-protection strategies.
Registration
Register Now on JURIS Arbitration Law
Continuing Legal Education:
NYS CLE credit (transitional and non-transitional) in the Areas of Ethics and Professionalism(1.5 hours for program) and a general certificate of attendance will be provided upon request. To receive CLE credit and a Certificate of Attendance, please complete the attorney affirmation form below and e-mail it to jhernandez@jurispub.com. Click here to download attorney affirmation forms for CLE credit.
Conference Co-Chairs
Timothy G. Nelson (Co-Chair) is a Partner in Skadden, Arps, Slate, Meagher & Flom LLP’s New York office. He represents clients in a variety of disputes involving cross-border and international law issues, including arbitrations before international bodies such as the American Arbitration Association/International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC), the International Center for Settlement of Investment Disputes (ICSID) and tribunals constituted under the Arbitration Rules of the United Nations Commission of International Trade Law (UNCITRAL). Mr. Nelson regularly advises sovereign and corporate clients on public international law issues including under multilateral treaties such as the Energy Charter Treaty, bilateral investment treaties (BITS); and other international trade/investment agreements.
Lawrence W. Newman (Co-Chair) is Of Counsel in Baker & McKenzie’s New York office. He practices mainly in the areas of international litigation and arbitration and has represented clients in cross-border disputes in courts and before arbitration tribunals. Mr. Newman serves as arbitrator in cases under the rules of the AAA/ICDR and the International Chamber of Commerce. He is the author and editor of many books and articles on international litigation, including The Leading Arbitrators’ Guide to International Arbitration, which is the basis for the Leading Arbitrators Symposium on the Conduct of International Arbitration, held every year in Vienna. He is an advisor to the ALI Restatement of U.S. Law of International Commercial Arbitration and a fellow of the Chartered Institute of Arbitrators, in which he is a member of the Practice and Standards Committee and Chair of the Arbitration Subcommittee. He is Chair of the International Arbitration Club of New York.
Faculty
Marcus Green is a partner at the New York office of Kobre & Kim. He advises clients on judgment enforcement, international asset investigations and offshore recovery and related debtor-creditor litigation. He helps clients realize value from court judgments and arbitration awards in distressed circumstances, including where debtors have undertaken complex asset protection structuring and, in investor-state disputes, where sovereign immunity is implicated. Mr. Green develops and implements comprehensive global asset-tracing and recovery plans on behalf of corporate, individual and government clients. These campaigns often involve coordinated investigations and litigation throughout the United States, Latin America, the Caribbean, Europe and Asia.
Amal Bouchenaki is a partner in the New York office of Herbert Smith Freehills. Amal advises on complex, multi-tiered treaty based arbitration proceedings and international commercial arbitrations conducted under a variety of the major arbitration rules, such as ICSID, CAFTA-DR, UNCITRAL, ICC, LCIA, ICDR. Trained in both the civil law and common law systems, Amal has handled disputes involving an array of complex procedural and substantive issues and industry sectors, including, technology, telecommunications, and energy-related disputes. In addition to appearing before international arbitral tribunals, she litigates international arbitration matters before national courts, and manages complex multi-jurisdictional disputes. Amal also has experience in the mediation of international disputes.h
Erika Levin is a partner at the New York office of Fox Rothschild. Erika focuses her practice on international commercial arbitration, litigation finance, complex commercial and cross-border litigation, as well as enforcement and asset recovery. She serves as counsel and as an arbitrator. She represents financial institutions, private equity funds, hedge funds, pension funds, distressed funds and investors in a wide variety of matters. A significant part of her practice is dedicated to disputes and monetization opportunities relating to Brazil and Latin America. Erika has handled disputes in the music, construction, mining, energy, transportation, manufacturing, distribution, health care, retail, insurance, and technology sectors.
Dana C. MacGrath is an Investment Manager and Legal Counsel at Omni Bridgeway, responsible for leading the company’s investments in international arbitration matters and contributing to its commercial litigation funding efforts. Dana’s ability to structure funding deals that address the special needs of parties engaging in or representing clients in international disputes is informed by having conducted arbitrations before the leading international arbitration institutions, as well as before ad hoc arbitration panels, and by serving as an arbitrator herself. She has also represented U.S. and foreign parties in disputes regarding the enforceability of arbitration agreements and arbitral awards, forum selection and choice of law clauses, sovereign immunity and discovery in the international context.
Daniel Nardello is the Chairman and CEO of Nardello & Co., where he oversees the firm’s global commitments, lending his critical thinking and expertise to complex litigation, activist defense, asset tracing, and anti-corruption matters. He has lived and worked in London and Rome, directing investigative teams in both countries for US and international clients. Daniel has written and spoken on a wide range of topics, including the US Foreign Corrupt Practices Act, defending corporations from activist attacks, vetting board candidates in the #MeToo era, and conducting defense investigations in white collar cases.