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Program AgendaTuesday, October 271:00 p.m. – 6:00 p.m. 7:30 p.m. – 9:00 p.m. Wednesday, October 287:00 a.m. – 6:00 p.m. 7:15 a.m. - 8:30 a.m. 8:15 a.m. - 9:30 a.m. This program will discuss “Mareva injunctions” and the possibility of a new law that affords pre-judgment relief that ensures a collection pool in money damages cases. So far, the experience in the U.S. with regard to this common law remedy utilized in other common law jurisdictions such as England and Canada. At present, the Uniform Law Commission is studying whether a model law would be appropriate. Other types of remedies, such as enforcement of foreign injunctions or orders preserving evidence, are more common abroad, but are starting to find their way into American courtrooms. This program discusses these remedies, and includes Canadian lawyers to discuss their experiences, as well as the director of the Uniform Law Commission to explain the process and impact of uniform laws. Sponsoring Committees: Program Chair: Moderator: Speakers: 10:30 a.m. - 10:45 a.m. 10:45 a.m. - 12:15 p.m. Think you have your forum selection all figured out? What happens if the selected forum decides to subject the dispute to a foreign law? Will some neutral academic hijack the proceedings? Did you know some national courts take up to five years to make rulings on rudimentary questions of foreign law – and what comes out is often unrecognizable? Come and find out the rules of the game and what you can do as an advocate to retain some control and influence. Leading academics and practitioners will show you the ropes and map out strategies for effective representation. Sponsoring Committees: Program Chair: Moderator: Speakers: 12:30 p.m. - 1:45 p.m. Thomas A. Shannon, Jr. is currently the Assistant Secretary of State for Western Hemisphere Affairs. He has been a career member of the Senior Foreign Service, serving as Special Assistant to the President and Senior Director for Western Hemisphere Affairs at the National Security Council from 2003 to 2005. From 2002 to 2003, he was Deputy Assistant Secretary of Western Hemisphere Affairs at the Department of State, where he was Director of Andean Affairs from 2001 to 2002. He was also U.S. Deputy Permanent Representative to the Organization of American States (OAS) from 2000 to 2001. He has served as Director for Inter-American Affairs at the National Security Council from 1999 to 2000; as Political Counselor at the U.S. Embassy in Caracas, Venezuela from 1996 to 1999; and as Regional Labor Attaché at the U.S. Consulate General in Johannesburg, South Africa from 1992 to 1996. During his career as a Foreign Service Officer, Mr. Shannon also served as Special Assistant to the Ambassador at the U.S. Embassy in Brasilia, Brazil from 1989 to 1992; as Country Officer for Cameroon, Gabon, and Sao Tome and Principe from 1987 to 1989; and as the Consular/Political Rotational Officer at the U.S. Embassy in Guatemala City, Guatemala from 1984 to 1986.On June 1, 2009, Assistant Secretary Shannon was nominated to be the next U.S. Ambassador to Brazil and awaits Senate confirmation. The topic of his luncheon address will be an Overview of U.S. Foreign Policy in the Western Hemisphere. 2:00 p.m. - 3:30 p.m. The program will feature in-house counsel providing real life advice on ethical and legal issues resulting from the Global Financial Crisis and the dilemma of providing a Corporate Compliance Program, Document Retention Program and adequate eDiscovery Protocols in the time of limited financial resources in their company. What is the baseline? What is the legal minimum? What is the ethical minimum in the time of credit default swaps, Ponzi schemes,government bailouts and limited corporate budgets? Companies struggle to deal with these cutting edge issues. What is the right thing to do? Sponsoring Committees: Program Chairs: Moderator: Speakers: 2:00 p.m. - 3:30 p.m. There is nothing new about Ponzi schemes, but there is something new about the magnitude and global involvement of the frauds perpetrated by Bernie Madoff and others. This program looks at financial fraud in the new millennium from both legal and practical perspectives, focusing on the civil remedies available to practitioners where both common and civil law jurisdictions are involved, the search for assets and how the applicable law transcends national boundaries. Sponsoring Committee: Program Chair: Moderator: Speakers: 3:30 p.m. - 4:00 p.m. 4:00 p.m. - 5:30 p.m. This session will feature a panel discussion of civil law lawyers and U.S. attorneys of the use of US discovery procedures in aid of foreign litigation and arbitration, including those provided for by 28 U.S.C. Section 1782. The panelists will provide an overview of available techniques, analyze when and how they can best be used, and offer advice and strategies for maximizing their effectiveness. The objectives of the session will include developing a list of practical considerations for non-U.S. lawyers to take into account before pursuing US discovery and issues of which their American counterparts should be aware when conducting discovery for use abroad. Sponsoring Committees: Program Chair: Moderator: Speakers: 4:00 p.m. - 5:30 p.m. The emergency exception doctrines of state of necessity and force majeure are well known in customary international law. The former came to particular reknown in the context of investment arbitration following Argentina's 2001 financial crisis. ICSID tribunals established under the U.S.-Argentina Bilateral Investment Treaty took differing views about the respondent state's ability to rely on the doctrine to avoid its treaty obligations towards foreign investors. In the current global crisis, it is foreseeable that these emergency doctrines may be invoked more frequently by states seeking to balance their international obligations against threats to their essential interests. It is timely and imperative to re-examine these doctrines. Who should bear the burdens of the current crisis? Are the standards for invoking these doctrines self-judging or are they subject to arbitral determination? What is the necessity doctrine's scope in the wake of the Argentine cases? This panel will explore these and other pressing questions, which undoubtedly will have significant implications for foreign investors and for investor-state arbitration. Sponsoring Committees: Program Chair: Moderator: Speakers: 4:00 p.m. - 5:30 p.m. The world now lives in the computer age. Internet security breaches cause billions of dollars in losses to private and public entities on an annual basis. Most of these losses are never recovered, but the majority of them could have been prevented. Cybercrime, which includes computer hacking, fraud, and the theft of proprietary information, can be prosecuted effectively and much of it can be prevented. A panel of experts from law enforcement agencies and the private sector explain how the increasing threat to computer databases and to the internet can be addressed, and how so much of global cybercrime can be deterred. Sponsoring Committee: Program Chair: Speakers: 7:00 p.m. - 8:30 p.m. 8:30 p.m. - 10:00 p.m. Enjoy this first full evening of networking opportunities by dining with your fellow Committee members after the first full-day of programming. This social setting will provide a great opportunity to meet your colleagues in the Section, learn about and shape committee plans for the year, and become more active in the Section. Thursday, October 297:00 a.m. - 6:00 p.m. 7:15 a.m. - 8:30 a.m. 8:30 a.m. - 10:00 a.m. International procedural law is no longer confined to the dusty corners of law libraries; it has become the forward battleground for the assertion of sovereign interests in a globalized economy. This in turn has very practical consequences on how litigants go about the most basic and essential steps in any type of civil litigation: serving process on a party located abroad; obtaining documents and witness testimony from parties or third parties in foreign jurisdictions; obtaining a judgment in one jurisdiction that can be enforced easily and predictably against assets located in another. The Hague Conventions on Service (1965), Evidence (1970), Apostille (1961) and Choice of Court (2005) together represent the international litigator's "toolbox." This roundtable will take a critical look at how these instruments work in practice, what improvements and changes we can expect going forward, and whether we have reached the limits of effective international judicial assistance and cooperation under existing treaties, while focussing on practical "take aways" for the practicing lawyer. Sponsoring Committees: Program Chairs: Moderator: Speakers: 10:00 a.m. - 10:30 a.m. 10:30 a.m. - 12:00 p.m "AS A MOTH IS DRAWN TO THE LIGHT, SO IS A LITIGANT DRAWN TO THE UNITED STATES" (Lord Denning) Why do so many foreign claimants, particularly from Latin America, bring suit in the United States – even against foreign defendants, and particularly in federal court in Miami? Is it the nice weather? What are the standards courts examine in deciding whether a case should stay in the United States? What are the key decision points on deciding to sue in the United States? In this global environment, is it getting easier or harder for foreign defendants to obtain dismissals from U.S. courts? This multi-jurisdictional panel will examine when foreign plaintiffs will be able to maintain suit in the United States, focusing on recent cases dealing with forum non conveniens and attempts to assert personal jurisdiction over foreign defendants and foreign sovereigns. Discussion will also focus on strategic considerations for foreign plaintiffs and defendants alike to consider in connection with litigation in the United States. Format of the panel will be a roundtable discussion of these issues, with active audience participation. Sponsoring Committees: Program Chair: Moderator: Speakers: 12:15 p.m. - 1:45 p.m. 2:00 p.m. - 3:30 p.m. For too long, corrupt actors around the world have been able to enrich themselves by stealing, bribing, and extorting with impunity. These corrupt actors use their ill-gotten gains to employ sophisticated lawyers, accountants, bankers, and other professionals to move assets around the globe for them and to hide them from the public view, often permanently. Victim governments and their instrumentalities, often with limited resources and even more limited technical expertise, are called upon to investigate and pursue these criminals and their assets on a very uneven playing field. That is where the public-private partnership asset-recovery model comes in. Join us for a presentation by a group of preeminent corruption fighters and world renowned asset recovery specialists for an in-depth examination of this paradigm-shifting asset recovery approach. Sponsoring Committee: Program Chairs: Moderator: Speakers: 2:00 p.m. - 3:30 p.m. Cross-examination is a vital part of Anglo-American common law adversarial litigation – a skill that advocates spend years honing. But in most parts of the civil law world it's not part of courtroom practice and not even considered particularly useful. In an international arbitration, where the participants may come from several legal backgrounds, cross-examination can become a mine field. While one person can come away from a cross-examination thinking the case has just been made, another can think it was a waste of time. And what is the duty of counsel who is faced with a tribunal that is hostile to cross-examination – attempt to win over the arbitrators and hope to win on the merits, or create a record to lay the groundwork for a legal proceeding to set aside the award on the basis of lack of due process? See how legal cultures clash when top advocates undertake a mock cross-examination before a panel of leading international arbitrators, not only in the hearing room but during the post-hearing deliberations. The participants will not only play their roles but will also review each other's views in a lively give and take format. Sponsoring Committees: Program Chairs: Moderator: Speakers:
3:30 p.m. - 4:00 p.m. 4:00 p.m. - 5:30 p.m. You represent a Western company doing business in China that's negotiating a deal with a Chinese company. The Chinese company insists that the contract provide for arbitration in China. Your client is concerned that they will not get a fair hearing or have their award enforced in China based on comments they heard about arbitration in China ten years ago. What's your advice based on the current state of commercial arbitration in China? Experienced counsel, arbitrators, and the heads of China's largest arbitration organizations will update you on arbitrating in China today, including the availability of interim relief, whether arbitral forums are available outside China to resolve China-related commercial disputes, and whether and to what extend adverse arbitration awards are enforced against Chinese parties. Sponsoring Committees: Program Chairs: Moderator: Speakers: 4:00 p.m. - 5:30 p.m. The most recent economic crisis evidenced a strong underlying interconnection among the economies of the world – and inevitably, among their legal systems. This is palpable in corporate insolvency cases with international repercussions. At this panel, moderators from the United States and European Union will present primary bankruptcy cases filed in their jurisdictions affecting creditors, debtors, assets, claimants, and third parties in Latin America. Insolvency experts from Argentina, Brazil, Chile, and Mexico will respond specific questions from moderators seeking for responses on aspects of how Latin American jurisdictions embrace the UNCITRAL's Model Law on Cross-Border Insolvency, what sort of cooperation are local judges able to provide foreign courts in cross-border insolvency proceedings, and what mechanisms do local laws provide for the reorganization of financially-troubled businesses. Speakers will point out tips and traps on cross-border insolvency in their jurisdictions. Sponsoring Committees: Other Sponsors: Program Chairs: Moderators: Speakers: 7:00 p.m. - 9:00 p.m. Friday, October 307:00 a.m. - 6:00 p.m. 7:15 a.m. – 8:30 a.m. 7:15 a.m. – 7:45 a.m. 7:45 a.m. – 8:30 a.m. 8:30 a.m. - 10:00 a.m. While damages are frequently the desired outcome of litigation or arbitration from a Claimant's perspective, their calculation is often given scant attention. There is a variety of calculation methods available to the damages expert, with some more appropriate to a particular circumstance than others. While experts are expected to serve the tribunal (in addition to serving the party that appointed them), there may be additional professional and ethical guidance brought to bear by a particular expert's professional certifying body. That guidance, in turn, can significantly affect the expert's analysis and conclusions. Our panel will use a case study example to highlight differences in applicable damages methods and the ethical guidance and professional standards of various expert bodies from the perspective of the experts themselves, the counsel who retain them and the arbitrators who must evaluate their evidence. Sponsoring Committees: Program Chairs: Moderator: Speakers: 10:00 a.m. - 10:30 a.m 10:30 a.m. - 12:00 p.m. In a roundtable format, some of the today's top arbitrators will share their views on the best practices currently in use in the management of arbitral proceedings, including their views on issues such as the presentation of evidence, privilege, disclosure of information between the parties, arbitrator deliberations and drafting of the arbitral award. The speakers will also share their insights on, among other things, the ethical dilemmas facing arbitrators, the evolving state of arbitration, the different elements necessary for successful advocacy, the importance of culture, and their views on achieving consensus among arbitrators. This program offers a rare inside view into the decision making process of some of today's leading arbitrators, and will be of great interest to those serving as arbitrators, as well as those, who as advocates, seek to persuade arbitrators. Program Chair: Moderator: Speakers: 10:30 a.m. - 12:00 p.m This program will look at current issues that affect contract drafting and interpretation by commercial lawyers and litigators alike. Given that the CISG can have automatic application to contracts involving parties from Contracting States and may seriously modify their terms (a fact which many still not realize), potentially determining the outcome of litigation, this is a must attend program. Topics include: -Default Applicability: A Conflict of Laws Analysis of Articles 1(1)(a), 1(1)(b) and 6 of the CISG -Modification to the Parol Evidence Rule under Articles 8, 9, 11 and 29 of the CISG -Navigating the goods/services waters of Article 3(2) of the CISG -Modification to Damages and Remedies: Articles 74-77 of the CISG -Evolution of CISG jurisprudence in Argentina, Chile, Ecuador, and Mexico-A Comparative Analysis Sponsoring Committees: Program Chairs: Moderator: Speakers: 12:15 p.m. - 1:45 p.m. 2:00 p.m. - 3:30 p.m. With the DR-CAFTA free trade agreement in effect for all Central American countries and the Dominican Republic as of January 2009, the parties are now under an obligation to negotiate an appellate body or similar mechanism for investor-State arbitration. If/when such a mechanism comes into place, it would be the first of its kind for investment arbitration. Is there a need for such a mechanism? What should the appellate mechanism look like? Can such a mechanism be created where other similar efforts have failed? What are the political issues that will affect what the mechanism looks like? The panel of current and former negotiators and investment arbitration litigators will answer these questions and examine a series of negotiating objectives laid out in DR-CAFTA in a lively format in which they make recommendations to a policy maker. Sponsoring Committees: Program Chair: Moderator: Speakers: 3:30 p.m. - 4:00 p.m. 4:00 p.m. – 5:30 p.m Third party funding of international arbitration and litigation claims has increased dramatically over the past 18 months. Several funders and funding brokers in the U.S., UK and Australia are focused on this space, reporting significant increases in requests for funding of various sorts. Firms that accept international cases on a contingent fee basis see partial funding structures as a way to hedge their investments in the case outcomes. Firms that do not accept contingent fee cases view third party capital as a way to compete for engagements against rival firms that do. Claim holders—even large corporations—view sales of interests in claims as a way to hedge their risk of loss, even where funding is not strictly required to prosecute the claim. With the advent of legislation in the UK permitting third party funding, the phenomenon is likely to increase. There are ethics and legal issues associated with third party funding that must be taken into account in structuring the financing arrangement. This program will introduce sources for financing in international cases; ethics issues facing lawyers seeking such financing; and structures for financing cases. Program Chair: Moderator: Speakers: 6:30 p.m. - 9:30 p.m. 10:30 p.m. Saturday, October 317:30 a.m. - 9:30 a.m. 8:00 a.m. - 9:00 a.m. 9:00 a.m. – 1:00 p.m. 1:15 p.m. – 5:30 p.m. |
