Iura Novit Curia in International Arbitration
Have a question? Email us about this product!
Iura Novit Curia in International Arbitration addresses a question that has long attracted the attention of both scholars and practitioners: whether arbitral tribunals may develop their own legal reasoning independently of the agreement and pleadings of the parties. This is considered by many as an oxymoron, given that arbitration itself is considered to be nothing but the result of manifestations of party autonomy – at least according to mainstream understanding of arbitration.
The national reports included in this book, all drafted by distinguished academics and practitioners, are based on a questionnaire that can be found following this collection. These reports represent 15 major jurisdictions: Argentina, Austria, Brazil, Canada, Denmark, England, France, Germany, Hong Kong, Russia, Singapore, Spain, Sweden, Switzerland, and the USA. The book also includes a general report, as well as a chapter by Friedrich Rosenfeld assessing how the principle iura novit curia is dealt with in international law.
Iura Novit Curia in International Arbitration is required reading for all parties involved in the international arbitration process.
About the Editors:
Franco Ferrari is a Professor of Law and the Director of the Center for Transnational Litigation, Arbitration and Commercial Law at New York University School of Law. Prof. Ferrari joined NYU on a full-time basis in September 2010, after serving as visiting professor for various years. Previously, he was chaired professor of comparative law at Tilburg University in the Netherlands and Bologna University as well as professor of international law at Verona University in Italy. After serving as member of the Italian Delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he served as Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch (2000-2002), with responsibility for numerous projects, including the preparation of the UNCITRAL Digest on Applications of the UN Sales Convention (2004 edition). Prof. Ferrari has published more than 280 law review articles in various languages and 18 books in the areas of international commercial law, conflict of laws, comparative law and international commercial arbitration. He is a member of the editorial board of various peer reviewed European law journals (Internationales Handelsrecht, European Review of Private Law, Contratto e impresa, Contratto e impresa/Europa, Revue de droit des affaires internationales). He also acts as arbitrator both in international commercial arbitrations and investment arbitrations.
Giuditta Cordero-Moss, Dr. juris (Oslo), PhD (Moscow), JD (Rome), is Professor at the Law Faculty of the University of Oslo, where she teaches primarily Norwegian and Comparative Law of Obligations, International Commercial Law, International Commercial Arbitration and Private International Law. A former in-house lawyer in multinational companies, since 2002 she has been acting as arbitrator in proceedings administered under the rules of a variety of arbitral institutions, as well as in ad hoc arbitration. She is the President of the Administrative Tribunal, European Bank for Reconstruction and Development (since 2017; she has been a judge at the Administrative Tribunal since 2007), Vice Chairman of the Board of the Financial Supervisory Authority of Norway (since 2014), member of the Norwegian Tariff Board (since 2015), member of the Board of Directors of the Arbitration Institute of the Norwegian Chamber of Commerce (since 2010) and of the Council of the Milan Chamber of Arbitration (since 2017). She is the delegate for Norway at Special Commission of the Hague Conference on the Judgments Project (2017) and the UNCITRAL Working Group on Arbitration (since 2007); member of the Commission on Arbitration of the International Chamber of Commerce, Paris (since 2003), member of the Norwegian National Committee, International Chamber of Commerce (since 2001). Since 2016 she is appointed member of the Norwegian Academy of Science and Letters.
She has published numerous books and articles in Norway and internationally, and is often invited to lecture at universities and organisations internationally. She has held the special lectures of Private International Law at the Hague Academy of International Law on the topic Party Autonomy in International Commercial Arbitration (2014), she was scholar in residence at the Center for Transnational Litigation, Arbitration and Commercial Law, New York University (October 2016), visiting professor at Sciences Po, Paris and visiting professor at Paris 1– Panthéon Sorbonne.
About the Contributors:
Rafael Franciso Alves is a Partner of the arbitration practice of L. O. Baptista Advogados, in São Paulo, Brazil, representing clients in domestic and international arbitrations on disputes regarding construction and infrastructure contracts, M&A transactions, real estate, banking, Oil & Gas, energy, among others. Rafael is a Professor of domestic and international arbitration at the Graduate Program of Fundação Getulio Vargas São Paulo Law School (FGV DIREITO SP). He is also a Director of the Brazilian Arbitration Committee (CBAr) and former Deputy Counsel at the Secretariat of the ICC International Court of Arbitration, in Paris, France. He holds a Bachelor of Laws, Master of Laws and Ph.D. degrees from University of São Paulo (USP) and an LL.M. degree from New York University School of Law (NYU), Arthur T. Vanderbilt Scholar (Class of 2010). Recipient of the Arthur T. Vanderbilt Medal (2010). Languages: Portuguese, English, Spanish and Italian.
Pedro A. De Miguel Asensio is Chair Professor of Private International Law at the Complutense University of Madrid and Program Co-Director of its post-graduate LL.M. on International Business Law. He is a consultant at Allen & Overy LLP (Madrid). He is also Co-rapporteur of the Committee on Intellectual Property and Private International Law of the International Law Association and Member of its Committee on the Protection of Privacy in Private International and Procedural Law, as well as Member and Director (2012-2016) of the Ibero-American Institute of International Law (IHLADI). Professor De Miguel Asensio is the author of more than ten books and over 120 scholarly articles and book chapters published in various languages. He has extensively written on different topics on transnational litigation. He is co-editor of the Encyclopedia of Private International Law (4 vols, 2017). He has taught and delivered lectures at universities in more than twenty countries. He studied law at the Universities of Amsterdam (LL.M.), Madrid-Complutense (J.D. and Ph.D.) and Harvard (Visiting Researcher). He is a member of the editorial board of several law reviews.
Katharina Auernig worked as a Lecturer and Research Assistant at the Chair of Professor Paul Oberhammer at the Department of Civil Procedure Law, University of Vienna. In her PhD thesis she examined, inter alia, the role of arbitrators when determining the content of the applicable law. She has published several articles and spoken at international conferences. Currently, she works as a visiting foreign consultant with the International Arbitration Practice Group of Wilmer Cutler Pickering Hale and Dorr in London.
David Bochatay graduated from the University of Lausanne (MLaw, 2006). From 2008 to 2011, he worked as a research assistant at the Center for Comparative, European and International Law of the University of Lausanne (international arbitration law and private international law). He acted as a coach in the International Arbitration Moot Willem c. Vis (2009). He joined the Swiss law firm Pestalozzi Attorneys at Law as a junior associate in 2013 and then as an associate in 2016 (Litigation & Arbitration Group). He is currently preparing a PhD in arbitration law and working for the Department of Justice, Canton of Valais (Switzerland).
Andrea Bonomi is Professor at the Faculty of Law, Criminal Justice and Public Administration, Director of the Center of Comparative, European and International Law at the University of Lausanne, and President of the Scientific Committee of the LLM Programme.
Nicolina Bordian is practicing law in Luxembourg with Lutgen+Associés. As a Doctoral Research Assistant to Professor Gilles Cuniberti at the University of Luxembourg, Nicolina has conducted research on the issue of “The Competition between Arbitration Fora”. Her current practice is focused on International Arbitration and Dispute Resolution. Nicolina continues to teach Luxembourg Tort Law seminars at the University of Luxembourg.
J. Brian Casey has 40 years of experience in commercial dispute resolution. He is a former Principal of Baker & McKenzie International and a former Chair of the Firm’s North American Litigation Practice group. In 2012 he formed Bay Street Chambers in order to devote his time exclusively to arbitration. He has a Bachelor of Engineering degree, a J.D. and an LL.M. in international business law. He has been a Fellow of the Chartered Institute of Arbitrators since 1995. Brian is listed in tier one in Chambers Global and is an adjunct professor at the University of Toronto Law School.
Gilles Cuniberti is Professor of Private International Law and Comparative Law at the University of Luxembourg. Prior to his present appointment, he taught for ten years in a Paris law school and practiced international litigation and arbitration in the Paris office of a leading English firm. He was also a visiting professor at Columbia Law School and National University of Singapore. He holds a PhD from Paris I Pantheon Sorbonne University and an LL.M. from Yale.
Natalyia Doronina is a Doctor in Law and Professor at the Institute of Legislation and Comparative Law Studies with the Government of the Russian Federation. She is Head of the Center for Promotion of Mediation and ADR (SOMEDIARS). She is also Member of the Expert Council on Codification of Civil legislation at the Administration of the President of the Russian Federation, as well as a specialist in regulation of foreign investments, investment arbitration and private international law.
Natalia Gaidaenko Schaer has a PhD in law and is Senior Researcher at the Institute of Legislation and Comparative Law Studies with the Government of Russia. Natalia is a practicing lawyer at the Moscow Branch of the Swiss law firm, Secretan Troyanov Schaer SA, and arbitrator of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation and of the Russian Union of Industrialists and Entrepreneurs. As a professional mediator, she is Deputy Head of the Center for Promotion of Mediation and ADR (SOMEDIARS). She lectures at the Russian Foreign Trade Academy and takes part in the sessions of UNCITRAL Working group II as a member of the Russian Delegation.
Elisabet Hallberg is an Associate in Advokatfirman Vinge’s dispute resolution group in Stockholm and specializes in commercial dispute resolution. She acts as counsel in international arbitrations as well as litigation.
Burkhard Hess, born in Worms (Germany) in 1961, became Founding and Executive Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law in September 2012. He graduated in Munich in 1990. After being granted Venia Legendi in civil law, civil procedure, private international law, European law and public international law in 1996, he held chairs at the Universities of Tübingen and Heidelberg. He was a guest professor in Beijing, in Paris (Sorbonne) and in Georgetown, and a scholar-in-residence at the Center for Transnational Law at the New York University. He served as a part-time judge at the Court of Appeal of Karlsruhe. He is Chairman of the ILA Committee on the Protection of Privacy in Private International and Procedural Law. In March 2015, the University of Ghent awarded Professor Hess a doctor honoris causa; in May 2016, the University of Thessaloniki.
James Hope is a Partner and Head of Vinge’s dispute resolution group in Stockholm, Sweden. He is a dual-qualified Swedish Advokat and English Solicitor- Advocate, with over 20 years’ experience of dispute resolution, including 10 years’ experience from practising in London. He acts both as counsel and as arbitrator in international arbitrations, both in Sweden and abroad, and his recent cases have involved Swedish, English, Californian, Chinese, Russian, Italian and Finnish laws, amongst others. He is a guest lecturer at Stockholm, Uppsala and Edinburgh Universities. He is also a member of the Board of the Arbitration Institute of the Stockholm Chamber of Commerce.
Leon Marcel Kahl studied law at Heidelberg University and Trinity College Dublin with his focus on private international law and international procedural law. Currently, he pursues his Ph.D. in comparative property law under the supervision of Professor Christoph A. Kern, LL.M. (Harvard), Heidelberg. Leon works at the Max Planck Institute Luxembourg for Procedural Law in the Department of European and Comparative Civil Procedural Law headed by Professor Dr. Dres. h.c. Burkhard Hess.
Shunghyo Kim is a Candidate for MSc in Law and Finance at the University of Oxford. She obtained her BA in psychology, Licentiate in Law and Juris Doctor at the University of Ottawa, Canada. She developed a passion for international commercial arbitration while working at the Trade Law Bureau of the Government of Canada, and while participating in the FDI arbitration moot competition. She also worked as a student-at-law at De Grandpré Chait LLP, and as a research assistant at the Supreme Court of Canada.
Nathaniel J. Lai is a Registered Foreign Lawyer (New York) at Quinn Emanuel Urquhart & Sullivan in Hong Kong. His practice is focused on international arbitration and complex commercial litigation. Nathaniel graduated with First Class Honours from the London School of Economics, and as a James Kent Scholar from Columbia Law School. While at Columbia Law School, he was a staff editor of the Columbia Journal of Transnational Law and a Salzburg International Law Cutler Fellow. Nathaniel is qualified to practice in New York.
Kenny Lau is Counsel at Providence Law Asia LLC. He graduated as the valedictorian of his class from the Singapore Management University School of Law and was then selected to serve as a Justices’ Law Clerk in the Supreme Court of Singapore for 2 years, where he assisted several Justices of the High Court, Justices of Appeal, and the Chief Justice of Singapore on a wide range of matters which included criminal law, corporate and commercial law, construction law, international arbitration, probate & administration, and public international law. Prior to his role as a Justices’ Law Clerk, Kenny also served briefly as a Deputy Public Prosecutor at the Criminal Justice Division of the Attorney General’s Chambers of Singapore. Kenny completed his practice training in the Commercial and Corporate Disputes Practice at WongPartnership LLP.
Z.J. Jennifer Lim is a Litigation Associate, focusing on international dispute resolution and arbitration, in the Hong Kong office of Debevoise & Plimpton. Ms. Lim joined Debevoise in the New York Office in 2013 and transferred to the firm’s Hong Kong office in June 2016. From 2012 to 2013, she clerked for Judge Hisashi Owada and Judge Leonid Skotnikov at the International Court of Justice in The Hague, Netherlands. Ms. Lim received a J.D. from Columbia Law School, where she was a James Kent Scholar, recipient of the David Berger Memorial Prize, and a Senior Editor of the American Review of International Arbitration. She received an LL.B. with First Class Honors from University College London in 2012. Ms. Lim has spoken and published on various issues relating to public international law and international arbitration.
Joseph M. Lookofsky is Professor Emeritus at the University of Copenhagen Faculty of Law. He is a National Correspondent for The United Nations Commission on International Trade Law (UNCITRAL) on the United Nations Convention on the International Sale of Goods (CISG) and The United Nations Model Law on Arbitration (MAL). He is the General Secretary for the Danish Committee on Comparative Law and a Titular Member of the International Academy of Comparative Law (Académie Internationale de Droit Comparé).
Loukas Mistelis is the Clive M Schmitthoff Professor of Transnational Commercial Law and Arbitration and Director of the School of International Arbitration, Queen Mary University of London. He has extensive experience in international arbitration practice, having been appointed as arbitrator in over 70 arbitrations. Professor Mistelis’ research includes empirical research into corporate attitudes towards international dispute resolution.
Paul Oberhammer is a Full Professor at Vienna University (Austria), an Of Counsel with Wilmer Cutler Pickering Hale and Dorr (International Arbitration Practice Group, London) and a permanent visiting professor of law at St. Gallen University, Switzerland. He is admitted to the bar in Hamburg, Germany. In the past he was a full professor at Halle-Wittenberg University, Germany and Zurich University, Switzerland and acted as Of Counsel with law firms in Vienna and Zurich. He was the chairman of the commission which drafted the 2006 Austrian Arbitration Act. He regularly acts as arbitrator in international and domestic arbitrations.
Metka Potocnik (Dr.) is a Graduate of Queen Mary University London (PhD), King’s College London (L.LM) and University of Ljubljana, Faculty of Law (L.LB), specialising in intellectual property, international arbitration and commercial law. She is qualified in Slovenia (Bar Member since 2008), with practical experience in commercial cases (Court of Appeal Ljubljana). Most recently she lectured at QMUL, King’s College, UCL and University of Surrey.
Julio César Rivera Jr., Lawyer (Universidad Católica Argentina), LL.M (Harvard Law School), PhD (Universidad de Buenos Aires), is a Partner at Rivera & Asociados. His practice is focused on international and domestic arbitration, complex commercial litigation and insolvency law. He has represented foreign and local companies in arbitration proceedings under ICC Rules, UNCITRAL Rules, U.S. Chamber of Commerce in Argentina Rules and Bolsa de Comercio de Buenos Aires Rules. He has acted as expert witness before U.S. Courts and the Inter-American Court of Human Rights. He is Global Adjunct Professor of Law at New York University, where he teaches Dispute Resolution in Latin America at the NYU Buenos Aires program. He also teaches International Commercial Arbitration and International Investment Law at the Universidad de San Andrés (Buenos Aires). He is the author of several articles on commercial arbitration.
Friedrich Jakob Rosenfeld (Dr.) is Partner with the arbitration boutique Hanefeld Rechtsanwälte in Hamburg, Germany. He acts as counsel, expert witness and arbitrator. Friedrich is also Global Adjunct Professor at New York University (Paris program), Visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg. In 2014, he was appointed Global Hauser Fellow from Practice & Government at NYU School of Law. Since 2015, he is alternate member of the ILA Committee on Rule of Law and International Investment Law. Prior to joining his current firm, Friedrich worked as consultant for the United Nations Assistance to the Khmer Rouge Trials in Cambodia. Friedrich studied at Bucerius Law School in Hamburg and Columbia Law School in New York. He holds a PhD in international law (summa cum laude).
Clement Salung Petersen (PhD, LLM) is an Associate Professor at the University of Copenhagen (Faculty of Law) in Denmark. His main research interests are civil litigation, international commercial arbitration and enforcement of intellectual property rights. He has contributed to several international and comparative research projects within these fields of law. He has also authored and co-authored several monographs on civil procedure law and intellectual property law in Denmark. He can be reached at Clement.email@example.com.
Natalia Semilyutina is a Doctor in Law and Head of the Comparative Law Center and Department of Civil Law of Foreign States of the Institute of Legislation and Comparative Law Studies with the Government of the Russian Federation. She is Member of the Expert Council on Codification of Civil Legislation at the Administration of the President of the Russian Federation. Natalia is an arbitrator of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation as well as a specialist in securities and financial instruments, market regulation, and corporate dispute resolution.
Aaron D. Simowitz is an Assistant Professor at Willamette University College of Law, where he teaches international business transactions, debtor and creditor law, and negotiation. He is also an Affiliated Scholar at the Classical Liberal Institute at NYU School of Law. Professor Simowitz received the Young Scholar’s Award from ASIL’s Private International Law Interest Group was recognized as a “New Voice in Conflict of Laws” by the AALS Conflict of Laws Section.
Koh Swee Yen is a Partner in the Commercial and Corporate Disputes and International Arbitration Practices of WongPartnership LLP, Singapore. Her practice focuses on complex, cross-border disputes that range from energy, international sales, trade to investment. She co-chairs the IBA Arb40 Steering Committee and YSIAC Committee, and is also a Member of the Editorial Board of ICC Dispute Resolution Bulletin and the ICCA-ASIL Taskforce on Damages in International Arbitration. Regarded as one of the “outstanding members of the next generation” in Who’s Who Legal: Arbitration: Future Leaders 2017, Ms. Koh is recommended in various legal publications, with one source declaring that “she is in a league of her own, she’s very impressive and she’ll go very far.”