Eleven students from the White & Case International Arbitration LL.M. Program, under the supervision of Sandra Friedrich, lecturer in law and director of Miami Law’s International Arbitration Institute and LL.M. Program, assisted the Miami International Arbitration Society in researching and drafting an amicus curiae brief to the U.S. Supreme Court.
Recently, the U.S. Supreme Court issued its decision on the matter, siding with the position stated in the MIAS amicus brief. In GE Energy Power Conversion France SAS v. Outokumpu Stainless, LLC, the U.S. Supreme Court reversed the U.S. Court of Appeals for the Eleventh Circuit in a unanimous 9-0 decision in an opinion by Justice Thomas and a concurring opinion by Justice Sotomayor. The Court’s holding stated that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the “New York Convention”) does not preclude the enforcement of arbitration agreements against non-signatories to those agreements under domestic equitable estoppel principles.
Outokumpu’s predecessor entered into several contracts for the construction of cold rolling mills in Alabama. The contracts contained arbitration clauses and provided that sub-contractors, including GE Energy, were considered a party to the contracts. The motors supplied by GE Energy later failed. When Outokumpu sued GE Energy in court for damages, the U.S. District Court for the Southern District of Alabama ordered Outokumpu to arbitrate its claims instead. However, on appeal, the U.S. Court of Appeals for the Eleventh Circuit reversed, finding that sub-contractor GE Energy did not sign the arbitration agreement contained in the contract as required under Article II of the New York Convention. Effectively, this meant that Outokumpu could sue GE Energy under the original contract, but the latter could not rely on that contract’s arbitration clause to compel arbitration under the principle equitable estoppel.
Indeed, throughout the amicus brief, MIAS submitted that the Eleventh Circuit’s decision misinterpreted the New York Convention and that reversal was crucial for parties to reasonably enforce international arbitration agreements and awards. Furthermore, MIAS argued that the previous decision by the Eleventh circuit requiring every possible party be a signatory to an arbitration agreement contradicted the very intention of arbitration itself by adding cost and complexity to international arbitration agreements.
The Eleventh Circuit’s original ruling on the matter enforcing a strict signature requirement even for successors in rights, now reversed, had been widely criticized in international arbitration circles, as the New York Convention is generally understood to provide a “floor,” not a “ceiling,” to the enforcement of international arbitration agreements and awards.
International Arbitration J.D./LL.M. Joint Degree student from Turkey, Arda Barlas, was “very proud” to have the opportunity to work on the legal research team for MIAS’s amicus brief. For Barlas, this experience was “a fantastic opportunity to deepen my knowledge on the common law doctrine of equitable estoppel and its application to ‘non-signatories’ of an international arbitration agreement.” When the U.S. Supreme Court issued its decision in accordance with the MIAS brief’s recommendation, Barlas remembers that “it felt great to be part of such a significant development for the New York Convention and international arbitration.” After all, Barlas concludes, “it’s not every day that you find such an opportunity to be part of a Supreme Court case in your field of study.”
For Anabel Blanco, a recent graduate of the International Arbitration J.D./LL.M. ’20 with ties to the USA and Cuba, working on the amicus brief was a “unique experience” as she “had never before conducted research on how a legal issue had been addressed by different national courts around the world.” According to Blanco, “the whole process underscored just how valuable the field of international arbitration is.” “The issues created by international business,” Blanco closes, “are the same all over the world, and the more uniformity we have in addressing these, the greater the willingness and confidence with which international transactions can be conducted.”
Another International Arbitration J.D./LL.M. Joint Degree student, Noozyara Eshaba from Bangladesh and the U.K., was “thrilled” to be a research assistant for the MIAS amicus brief. Earlier in the semester, Eshaba remembers taking the IA LL.M. course on “International Arbitration and the New York Convention,” taught by renowned international arbitration practitioners Albert Jan van den Berg and Niusha Bassiri, which paralleled the work being done on the amicus brief and allowed Eshaba to “vicariously live through” the material she learned in class. “Working on the project,” Eshaba concludes, “gave me the opportunity to understand the real-life implication of the New York Convention and the issues regarding its interpretation.”
Ishaan Madaan, International Arbitration LL.M. ’19 and Foreign Direct Investment (FDI) International Arbitration Moot Scholar from India, describes his experience working on the brief as “indeed a rare opportunity, especially for international students, to contribute research to a legal question under deliberation before the highest court in the United States.” According to Madaan, “the experience also demonstrated that combined research efforts by a diversity of legal minds can constructively bring together varied perspectives and highly persuasive arguments.” Thinking back on the Court’s decision in favor of the brief’s recommendation “felt nothing short of a personal victory” for Madaan and being among the few who took part in the research has been an asset for him now in professional development after recently graduating from the LL.M. Program. “I can, with confidence, say,” Madaan closes, “that Professor Friedrich ensures the uniqueness of our experiences” in the LL.M. Program.
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The University of Miami School of Law is an institutional member of the MIAS and students in the White & Case International Arbitration LL.M. Program have the opportunity to join MIAS during their studies at Miami Law, offering them the ability to work on arbitration related projects and attend networking events, conferences, and bi-monthly MIAS membership meetings featuring leading arbitration practitioners as guest speakers. Recently, Young MIAS, a newly established chapter for young practitioners, recent graduates, and law students interested in International Arbitration, hosted a Happy Hour reception for current and incoming students in the program to network with and get to know the Miami IA community.
“This project with MIAS provided a rare opportunity for International Arbitration students to work on an amicus brief to the U.S. Supreme Court,” says Friedrich, “which does not frequently rule on core matters of international arbitration.” “Researching and analyzing the interactions between international treaty and domestic, federal and state laws on the issue of international arbitration challenged students while also allowing them to put into practice the knowledge and skills learned while studying in our program,” Friedrich adds.
Working in this capacity also provided students with networking opportunities through working with members of the various Miami-based international arbitration firms and offices who were involved in putting together the amicus brief on behalf of MIAS. The students were invited to the MIAS end-of-the-year celebration and publicly acknowledged by the MIAS Board of Directors and other members of the Miami international arbitration community for their contributions to this important project. Several faculty members in the International Arbitration LL.M. Program serve on the MIAS Board, including adjunct professors Luis O’Naghten (MIAS Chairman; Partner, Hughes Hubbard & Reed), Cristina Cárdenas (Partner, Reed Smith), Daniel E. González (Partner and Global Head of International Arbitration Practice, Hogan Lovells), and John H. Rooney Jr. (MIAS Vice-Chair; Independent Arbitrator, John H. Rooney, P.A.), as well as Sandra Friedrich, Lecturer in Law & Director of Miami Law’s International Arbitration Institute and LL.M. Program, who serves as an Academic Board Member.
