The US Supreme Court has unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not prohibit US courts from applying the domestic law doctrine of equitable estoppel when determining whether an international arbitration clause can be enforced by a non-signatory to compel arbitration. In doing so, the court effectively extended the holding in Arthur Andersen LLP to international arbitrations under Chapter 2 of the Federal Arbitration Act.
The world is living through the most dynamic period in antitrust and competition policy for decades – with pressure for change coming from different directions and likely to generate concrete proposals and political controversy in 2020, plus the global COVID-19 pandemic adding unprecedented complexity and uncertainty. In this context, this article highlights a number of significant trends and developments of which businesses should be aware.
Existing proceedings in the national courts are inevitably experiencing the impact of the COVID-19 outbreak. Where possible, hearings have been delayed or relocated. However, with many lockdowns extended for the foreseeable future, hearings will still need to be held. As such, many national courts are looking into solutions to these issues, particularly technological ones.
Existing dispute resolution proceedings are inevitably experiencing the impact of the COVID-19 outbreak. Where possible, hearings have been delayed or relocated. However, with many lockdowns extended for the foreseeable future, some hearings will still need to be held. Notably, the American Arbitration Association acknowledges that these are appropriate times to permit (and indeed require) the use of viable alternatives to in-person hearings.
In the wake of COVID-19, public officials across the United States have expressed a willingness to prosecute price gougers and companies that facilitate sales of goods with inflated prices. In this video, Vic Domen, government antitrust investigations and prosecutions lawyer and partner at Norton Rose Fulbright, discusses various consumer protection issues that are arising in the United States as a result of COVID-19.
In the wake of COVID-19, some sellers of essential goods and services have tried to greatly increase the cost of their products to take advantage of increased demand. However, sellers should be aware that public officials across the United States have expressed a willingness to prosecute price gougers and companies that facilitate sales of goods with inflated prices. State attorneys general are at the forefront of investigating and prosecuting instances of price gouging.
As the United States reacts and adjusts to the developing COVID-19 situation, the two federal antitrust agencies – the Federal Trade Commission and the Department of Justice Antitrust Division – have revised certain rules and procedures relating to their civil merger investigation processes to address these new challenges. Although both agencies have shifted most of their personnel to remote working arrangements, agency staff have demonstrated a willingness to be reasonable and accommodating.
While antitrust and consumer protection laws provide flexibility for firms to respond to changing market conditions, such as those created by the COVID-19 pandemic, it is important to remember that certain conduct will remain prohibited by antitrust and consumer protection laws no matter the circumstances.
Floating solar and wind farms are power production installations mounted on structures or platforms that float on a body of water. In a country such as Italy, where the targets to produce electricity from green sources are ambitious and must coexist with the need to safeguard agriculture and the landscape, floating solar and wind installations present a new but challenging opportunity.
Until recently, the Federal Trade Commission's (FTC's) ability to seek monetary equitable remedies (particularly disgorgement and restitution) for alleged antitrust violations went virtually unchallenged. However, the most recent appellate case that interprets the FTC's monetary equitable remedies under Section 13(b) of the FTC Act leaves open many questions about the FTC's ability to seek monetary equitable remedies in antitrust cases pursuant to Section 13(b).
The Department of Justice Antitrust Division and the Federal Trade Commission have announced the release of the 2020 Draft Vertical Merger Guidelines (VMG) for a 30-day comment period. As with any guidelines issued by the agencies, the finalised VMG will be instructive for the agencies' review of vertical mergers and will be persuasive but not binding on the courts should a contested merger enter litigation.
California's governor recently signed a bill designed to enhance antitrust scrutiny of patent settlements between branded and generic pharmaceutical companies. The bill follows the California attorney general's nearly $70 million settlement in Summer 2019 with several pharmaceutical companies based on patent settlements that the attorney general claimed violated the Cartwright Act and is yet another example of diverging interpretations between federal and state antitrust laws.
According to a recent Lazio Regional Administrative Court ruling, before reaching a decision on the revocation of incentives, the Energy Services Operator must confirm whether the renewables exception set out in Article 42(3) of Legislative Decree 28/2011 applies (ie, the plant in question must have received incentives when the violation was verified) and assess the size of the reduction with regard to the extent of the violation detected.
Data protection and cybersecurity are hot topics in international arbitration and international surveys demonstrate that users of arbitration are concerned about data security. While there are signs that the market is listening, users seem to think that institutions, counsel and tribunals could do more to address cybersecurity. As these issues become more common, it is hoped that consistent practices will emerge to reassure users that their data will be secure.
The Federal Trade Commission and the Department of Justice's Antitrust Division recently released the Hart-Scott-Rodino Annual Report for Fiscal Year 2018, covering 1 October 2017 to 30 September 2018. This report is the first opportunity to review data regarding the merger challenges issued exclusively during Trump's administration. The data underscores the importance and benefit of advance planning and strategy to avoid a second request investigation whenever possible.
The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) has been signed by 46 states and will come into force six months after being ratified by at least three state parties. The convention responds to the demand from a growing body of mediation users for an enforcement mechanism applicable to mediated settlement agreements in cross-border disputes. However, its language has created some uncertainties.
Investor-state dispute settlement is an important feature of investment treaties as it is the procedural mechanism through which investors can claim compensation for a violation of a substantive investor-protection standard. The traditional mechanism (ie, investment arbitration between the investor and the host state, modelled on commercial arbitration) has been increasingly criticised. Hostility to the traditional model has led to changes in individual treaties and wider reform initiatives.
M&A lawyers mitigate buyer risk through expansive due diligence exercises and tight contractual controls. Arbitration has become a prominent forum for resolving these disputes. For example, the London Court of International Arbitration (LCIA) has reported a significant increase in the number of shareholder, share purchase and joint venture agreements being referred to LCIA arbitration. This article examines the growth of arbitration as a forum for resolving such disputes.
In a historic shift, the Department of Justice's Antitrust Division will now consider providing credit to companies in the charging and sentencing stages of an antitrust criminal investigation if they have a robust and effective antitrust compliance programme. While a positive step, significant questions remain regarding the extent to which the opportunity for compliance credit will incentivise companies to self-report criminal antitrust violations and how the guidance interacts with the division's leniency programme.
The International Chamber of Commerce Commission recently published an update to its report on construction industry arbitration, focusing on recommended tools and techniques for effective management. The report is a helpful reminder for practitioners and arbitrators of the procedural mechanisms available which are particularly relevant to the conduct of arbitration in the construction sector.