Litigation and Alternative Dispute Resolution


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As a current practice, expedited procedure rules have been introduced as a remedy against the rising time and costs of arbitration proceedings, in principle, to be applied if the amount in dispute does not exceed a certain threshold. International arbitration aims to resolve disputes in a timely and cost-efficient manner, which would be achieved through a special procedure to be applied in order to ensure this efficiency.

Current issues in expedited procedures, which are found under various institutional arbitration rules, shall be analyzed in this newsletter article.

Read more: Current Issues in Expedited Procedures in Arbitration


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Introduction

The effect of the principle of separability on determination of the law applicable to arbitration agreements was examined, and the doctrine and court opinions were summarized in the July, 2017, issue of the Newsletter1. As mentioned in the said article, the arbitration agreement may be governed by the law applicable to the underlying contract, or by a different law. In such case, the arbitration agreement can often be governed by the law of the seat of arbitration or some national laws and international principles. In this article, certain court decisions and arbitral awards supporting the aforesaid opinions have been compiled.

Read more: The Effect of the Principle of Separability on Determination of the Law Applicable to Arbitration...


United Parcel Service Inc. (UPS) is suing the European Commission before the General Court of the European Union for €1.7 billion in compensation for damage it claims to have suffered when the Commission wrongly vetoed its attempted takeover of parcel delivery rival, TNT Express NV (TNT).

The above follows the General Court's decision to uphold the appeal by UPS in March 2017 and agreeing that the Commission had been wrong in blocking the deal.

Read the entire article.


Federal Rule of Civil Procedure 41(d) authorizes a district court to award a defendant “costs” where a plaintiff who “previously dismissed an action in any court [subsequently] files an action based on or including the same claim against the same defendant.”

On February 2, 2018, the Third Circuit held as a matter of first impression that a district court may award attorneys’ fees as the “costs” provided for under Rule 41(d) when the substantive statute under which the lawsuit was filed defines costs to include attorneys’ fees.

Click here to read the full Alert.


When a plaintiff in a securities fraud class action seeks to support a motion for class certification using a presumption of reliance where the stock trades in an efficient market, what burden does a defendant have to rebut the presumption to defeat class certification? That is, does the defendant bear the burden of persuasion on the issue, or is the defendant’s burden only to produce evidence going to the issue, with the burden of persuasion remaining on the plaintiff? The Second Circuit recently issued an opinion in Arkansas Teachers Retirement System. v. Goldman Sachs Group Inc. reinforcing that the defendant bears the burden of persuasion of showing that a market was not efficient so that a presumption of reliance does not apply. The Second Circuit explained that a defendant in a securities fraud action must rebut the application of a presumption of reliance in an efficient market by a preponderance of the evidence. The Second Circuit’s decision shows that a defendant can seek to satisfy its burden with evidence going to the market’s awareness of the alleged misrepresented information.

Please click here to read the full Alert.