Insights

As artificial intelligence (AI) continues to evolve and integrate into various aspects of legal practice, counsel and arbitral tribunals drawing up their Terms of Reference (TOR) establishing the terms of the dispute being referred to arbitration and also formulating their procedural orders should consider the implications of AI. This client alert highlights the importance of addressing AI in TOR negotiations and provides an overview of likely topics international arbitration practitioners can expect to treat in TORs and procedural orders.

The flow of data across borders is essential to our global economy. As companies grow more and more dependent on cross-border data transfers to conduct business, two parallel legal trends have emerged:

In the first days of his Administration, President Trump has issued a number of Executive Orders that mark a significant shift in United States energy and climate policy, marked by deregulation and a focus on traditional energy sources. President Trump’s second term agenda will have profound implications not only domestically but also on the international stage. Understanding the impact of these policies is crucial for businesses and investors alike. This article will explore the effects of President Trump’s agenda with respect to climate change policy, oil and gas, and solar energy sectors.

As the United States government transitions from the Biden Administration to the Trump Administration, significant changes are already impacting infrastructure policy, with likely consequences to both planned and in-progress infrastructure projects around the country. Disruptions in funding and other policy changes are creating uncertainty for investors and stakeholders involved in infrastructure projects, particularly the potential impacts on projects funded under the Infrastructure Investment and Jobs Act and the Inflation Reduction Act of 2022, as previewed in our January 18thclient alert, “Implications of Incoming Administration Changes to Infrastructure Initiatives.”

The ongoing changes surrounding the U.S.’s position on infrastructure between the outgoing Biden administration and the incoming Trump administration is creating policy uncertainty for investors and companies in the infrastructure space. This instability may raise concerns among stakeholders that the U.S. is not an ideal place to invest because of the policy inconsistency and increases the likelihood of disputes arising from existing and potential foreign investment projects.

President-elect Donald Trump has proposed to expedite federal approvals and permits for any investments worth more than $1 billion.[1] To date, details of Trump’s current proposed fast-tracking initiative have not been articulated. If put into action, however, infrastructure megaprojects will certainly be among the investments covered by any such initiative, with such fast-tracking potentially enhancing disputes risks before projects commence and throughout the lifecycle of the project.

President-elect Donald Trump plans to impose widespread tariffs when he takes office in late January 2025. He has stated that one of his first executive orders will be to impose a 25% tariff on all products imported from Canada or Mexico. Products imported from China, such as metals, coatings, plumbing components and HVAC parts, could face an additional 10% tax above current tariffs. The imposition of such tariffs will have significant implications for megaprojects, including large infrastructure developments like highways, bridges, tunnels, airports, and railways, as well as large-scale energy projects like power plants, oil and gas facilities, and renewable energy installations.

President Donald Trump’s planned (or proposed) tariffs in his second administration may have a profound impact on megaprojects, including large infrastructure developments like highways, bridges, tunnels, airports, and railways, as well as large-scale energy projects like power plants, oil and gas facilities, and renewable energy installations.

On 18 September 2024, the UK Supreme Court handed down its judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30.  The judgment considers several significant issues relevant to international arbitration.  Primarily, though, it reaffirms: (i) the English court’s strong support for arbitration, in general; (ii) the steps it is prepared to take to hold parties to their agreement to arbitrate; and (iii) the current position for determining the governing law of an arbitration agreement, in the absence of an express election by the parties.

On February 15, 2023, the Ninth Circuit held that AB 51 is preempted by the Federal Arbitration Act (“FAA”) and consequently California employers are free to require employees to sign arbitration agreements as a condition of employment. See Chamber of Com. of the United States of Am. v. Bonta, No. 20-15291, 2023 WL 2013326 (9th Cir. Feb. 15, 2023). AB 51 made it a criminal offense for an employer to do so, whether for applicants or existing employees.

On November 1, 2022, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2022 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, Central Intelligence Agency, National Aeronautics and Space Administration, Defense Logistics Agency, Defense Contract Management Agency, and other Defense agencies, Non-Appropriated Fund Instrumentalities, and the Washington Metropolitan Area Transit Authority.

Monster has matched the size of its energy drinks with its recent arbitration award—securing a staggering $175 million in a trademark dispute heard by arbitrator Bruce Isaacs. While many contractual conflicts are resolved through arbitration, few trademark infringement cases land in arbitration and even fewer involve such a high monetary award.

On June 6, 2022, the Supreme Court of the United States ruled in an unanimous opinion in Southwest Airlines Co. v. Saxon, No. 21-309 that airline cargo loaders are exempt from the Federal Arbitration Act (“FAA” or the “Act”) under the Act’s “transportation worker” exemption. The Supreme Court reasoned that while not all employees of an airline are exempt from the FAA, ramp employees who load and unload cargo from planes are part of a “class of workers engaged in foreign or interstate commerce” specifically exempted by the Act. The Supreme Court’s broad interpretation of this exemption permits airline cargo loaders to bring wage-and-hour claims in court rather than being forced into arbitration. This case is the second of three arbitration cases argued before the Supreme Court this term. Crowell previously issued an alert about the first case, Morgan v. Sundance, which held that the courts may not create “arbitration-specific variants of federal procedural rules,” despite the FAA’s “policy favoring arbitration.” The third case, Viking River Cruises v. Moriana, involving FAA preemption of representative claims under California’s Private Attorneys General Act, is pending before the Court.

On May 23, 2022, the Supreme Court of the United States ruled in a unanimous opinion in Morgan v. Sundance, No. 21-328 that the Federal Arbitration Act (“FAA”) serves to make arbitration agreements as enforceable as other contracts; it does not permit the courts to “devise novel procedural rules” to foster arbitration. Specifically, prior to this ruling, almost all federal circuits used an arbitration-specific waiver rule requiring a showing of prejudice to one party in order to demonstrate that the opposing party waived its right to compel arbitration. Under this new ruling, a party seeking to demonstrate that the opposing party waived its right to compel arbitration by litigating for too long need not make a showing that it was prejudiced, which is consistent with federal waiver law.

On March 31, 2022, the United States Supreme Court issued its opinion in Badgerow v. Walters, ruling that federal courts may not “look through” to the underlying dispute to determine whether there is federal jurisdiction over requests to confirm or vacate arbitral awards under Sections 9 and 10 of the Federal Arbitration Act (“FAA”).  This decision establishes that petitions to confirm or vacate arbitral awards will be subject to a different, more traditional jurisdictional analysis⸺and are more likely to be heard in state court⸺than petitions to compel arbitration under Section 4 of the FAA, which instructs federal courts to employ the “look through” approach. See Vaden v. Discover Bank, 556 U.S. 49, 50 (2009).

On February 10, 2022, Congress passed H.R. 4445, titled the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The legislation would amend the Federal Arbitration Act (FAA) to render pre-dispute employment arbitration agreements voidable at the election of the employee for all sexual harassment and sexual assault claims. Employees will still be permitted to choose to arbitrate these claims. The legislation would also render pre-dispute employee waivers of the right to bring such claims jointly or on a class basis voidable.