ICC YAF: Limitations on Arbitrability

Washington, D.C. 10 December 2015

 IMG_7066We hear the phrase, “the sky is the limit” (or rather, “the sky has no limit”?).  But we all know that sometimes this much optimism is just not true.  On December 10, 2015, the eve of the Joint Colloquium, approximately sixty young arbitration practitioners gathered at Hogan Lovells LLP in downtown Washington, D.C. to attend an event titled, Limitations on Arbitrability: When the Sky is Not the Limit.  The event was co-organized by ICC YAF, Young ICSID, and ICDR Y&I – the “young” crowd of professionals in international arbitration. The keynote speaker, Eduardo Siqueiros, spoke on the issue of rule of law in arbitration, delving into great detail on the factors corporations consider in selecting where to invest.  He entertained questions from the audience on the role of the rule of law in investment decisions and the recent Hogan Lovells’ Report on the subject.  Following the keynote, Stephen Drymer, Dyala Jimenez, and Baiju Vasani joined Patrick Pearsall who moderated a discussion on (you guessed it!) limitations on arbitrability.  A mix of civil law/common law and private practice/government backgrounds gave the topic an interesting angle as the speakers debated whether the issue of arbitrability was a “bucket” or “umbrella” within which admissibility and jurisdiction can sit.  Corruption, MFN clauses, provisions of NAFTA and the Energy Charter Treaty also made guest appearances in the animated debate.  What was the conclusion regarding whether the sky was the limit in arbitrability? In classic lawyering fashion – “it depends.”

 – Nikole Lee, ICC Deputy Director