Professor Franco Ferrari and Professor Marco Torsello, professor of law at Verona University School of Law, have just published the third edition of their book on the 1980 United Nations Convention on Contracts for the International Sale of Goods. The Convention, which covers more than 3/4 of world trade, is in force in 95 States, including the United States and its most important trading partners. The book, which is part of West’s Nutshell series and is aimed at both practitioners and scholars, covers the Convention’s basic rules one should be aware of, so as to avoid surprises when doing business with parties having their place of business in other countries.
On 23 Jun 2022, the European Commission published the outcome of the selection process for arbitrators and trade and sustainable development (TSD) experts in bilateral disputes under the European Union’s trade agreements with third countries. On that occasion, the European Commission named Franco Ferrari as an individual suitable for appointment as arbitrator in the above setting.
Franco Ferrari will give the keynote address entitled “The law applicable to the arbitration agreement” on the occasion of the 4th Athens International Mediation and Arbitration Conference to be held in Athens on June 1st and 2nd, 2022. Professor Ferrari will show why the answer to the question of which law applies to arbitration agreements depends at what point in time over the course of the life-cycle of an arbitration the question is asked, and for what purpose, and by whom. There is no one-size-fits all answer to the question.
Franco Ferrari has just published a paper entitled “National International Commercial Arbitration” in 32 American Review of International Arbitration 439 (2022). In the paper, Professor Ferrari elaborates on the view, expressed in earlier papers (including in Plures Leges Faciunt Arbitrum, 37 Arbitration International 579 (2021) – available here: https://academic.oup.com/arbitration/article/37/3/579/6246135?login=true; Lex Facit Arbitrum 2.0, Diritto del commercio internazionale 915 (2021)) that it is national law that confers juridicity to arbitration, i.e., “where the source of [the arbitrators’] power and the legal nature of the process and of the ensuing decision stem from” (Gaillard). This new paper, which is a review article of International Commercial Arbitration. A Handbook edited by Stephan Balthasar, relies on the Handbook’s various chapters (addressing the New York Convention as well as arbitration law in Austria, Belgium, Brazil, China, England and Wales, France, Germany, Hong Kong, India, the Netherlands, the Russian Federation, Singapore, Spain, Sweden, Switzerland, and the United States) to corroborate the findings of the earlier papers. At the same time, it allows the reader to identify the many areas in which national law is relevant in the international commercial arbitration context.
On April 6, 2022, Franco Ferrari gave a talk on the occasion of a conference co-hosted by the Institute for Transnational Arbitration (ITA) and the American Society of International Law (ASIL), which took place in hybrid mode in Washington. The conference, dedicated to “Arbitration in Changed Circumstances”, was divided into two panels, preceded by a keynote address by Ms. Lucy F. Reed entitled “Arbitration as a Cornerstone for Democracy and the Rule of Law”.
The panel in which Franco Ferrari participated focused specifically on how arbitration was adapting to the Covidー19 pandemic as well as shifts in geo-political and geo-economic power, the reassertion of sovereignty in international investment law, and an emerging proliferation of institutional competitors to arbitration. Franco Ferrari shared the panel with Professor Kun Fan from the University of New South Wales, who acted as the moderator, Professor Pamela Bookman (from Fordham University School of Law), Ms. Meg Kinnear, the Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID), Ms. Natalie Y. Morris-Sharma, a government legal counsel at the Attorney-General’s Chambers of Singapore, and Professor August Reinisch (from the University of Vienna).
Franco Ferrari has just published a paper focusing on the interpretation of the CISG in which he identifies two interpretative trends, both of which are disruptive of the uniformity aimed at by the drafters of the CISG; the homeward trend and the outward trend. As for the homeward trend, it has been defined as the tendency of interpreters of the CISG to read the expressions used in the CISG in light of the domestic law in which the interpreter was trained. On the other hand, the “outward trend”, an expression coined by Professor Ferrari in earlier writings, is defined by Professor Ferrari as the “the tendency of those interpreting a uniform law instrument to project foreign law onto the provisions of an international instrument where these provisions refer to legal concepts unknown in the system in which the interpreter is trained”. As Professor Ferrari points out in his paper, both trends go against the very idea behind the creation of a uniform sales law and must therefore be combatted. In his paper, Professor Ferrari makes a suggestion on how to do so successfully. The paper is entitled Tendencia nacionalista vs tendencia importadora en la jurisprudencia de la CVIM, and is published in The Transnational Sales Contract. 40 years influence on the CISG on National Jurisdictions edited by F. Benatti et al., Milan, 2022, p. 199-217.
Franco Ferrari has just published an article in Diritto del commercio internazionale, a peer reviewed Italian law journal. In his article, Franco Ferrari, one of the leading academics in the field of unification of law in general, and the United Nations Convention on Contracts for the International Sale of Goods (CISG) in particular, argues that in the arbitration context, uniform substantive law conventions apply for reasons that do not compare to those that lead to their application in litigation. In arbitration, their application will depend on the autonomous arbitration-specific conflict of laws rules. If these rules designate the law of a contracting State as the law applicable, the uniform substantive law conventions apply as part of the law of that State. But the conventions may also apply on their own, independently of the law of any contracting State, if the applicable arbitration-specific conflict of laws rule allows for the application of “rules of law”.
Recently, the U.S. side of the Yukos v. Russian Federation enforcement saga entered a new phase: on May 24 May, the award creditors submitted a brief seeking review of the November 20, 2020 Memorandum Opinion and Order of the U.S. District of the District of Columbia granting the Russian Federation’s Motion to Stay and denying the award creditors’ request that the Russian Federation be ordered to pay security. On June 1, Professor Franco Ferrari and Professors Andrea Bjorklund and Diane Obierto submitted an amicus curiae brief addressing some of the issues dealt with by the District Court. In their brief, the amici suggested that Article VI of the New York Convention does not allow courts to automatically stay enforcement proceedings where annulment proceedings are pending in the court of primary jurisdiction, as this would violate the spirit of the New York Convention and basically amount to the introduction of a new ground for refusal of enforcement different from the seven ones exhaustively listed in the Convention. The amici also submitted that nowhere does the Convention state that sovereigns cannot be ordered to pay security.
On 10 February 2021, from 14:30 to 16:00 (CET), Franco Ferrari gave a talk regarding the seller’s liability for violating third party intellectual property rights under the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The issue is addressed in CISG Article 42 and over the years has led to divergent case law. Professor Ferrari gave his talk on the occasion of a conference entitled “Virus, Vaccines and Arbitration Clauses: Orderly Circulation is Key” hosted by the Italian Forum for Arbitration and ADR, the Milan Chamber of Commerce, and the Italian Association for Arbitration (AIA).
Franco Ferrari has just published the lectures on “Forum Shopping Despite Unification of Law” he gave during the summer 2019 session at the Hague Academy of International Law. The lectures, to which the entire volume 413 of the Recueil des cours is dedicated, show that forum shopping is ubiquitous in international commercial law and that this also holds true in respect of international commercial law stemming from uniform substantive law conventions. The lectures show that despite statements to the contrary, these conventions are unable to prevent forum shopping for many different reasons, both convention-extrinsic and convention-intrinsic. The convention-extrinsic reasons are reasons independent of the specific uniform substantive law convention which may be applicable in a given case. There are and will always be reasons for forum shopping that uniform substantive law conventions will not have any impact upon, such as the potential bias of the adjudicator or the costs of access to justice, just to name a few which were addressed in the lectures. As for the many convention-intrinsic reasons discussed in the lectures, Professor Ferrari asserts that no drafting efforts will be able to do away with them. Ultimately, this means that forum shopping is here to stay, despite the unification of substantive law through conventions. The lectures also show that this is not necessarily a bad thing, because forum shopping as defined in the lectures is not the evil commentators make it out to be.
Franco Ferrari was invited to give the keynote address entitled “The Importance of the Seat of Arbitration” on the occasion of the opening of the Hamburg International Arbitration Center, a newly created facility aiming at promoting the attractiveness of Hamburg as a seat of arbitration. The Center will function as a common facility for the many arbitration activities already taking place in Hamburg.
Professor Ferrari has just published with Oxford University Press the second edition of an article-by-article commentary on the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, of which he is also a co-author. As Professor Ferrari writes in the Preface to the book authored by an international group of academics and practitioners, parties to any transaction require predictability and legal certainty, as it is the predictability and legal certainty that allow the parties to assess the legal and economic risks involved in the transaction and, thus, allows them to decide whether to enter into the transaction at all. This need is felt even more strongly where the transaction is not a purely domestic one but is linked to more than one country. To reach the desired predictability and legal certainty in an international context, various approaches have been resorted to. The drafting of uniform rules of private international law is one such approach. It aims at guaranteeing that courts in the States where such uniform rules are in force will apply the same substantive rules no matter what court a dispute is brought before, thus reducing transactions costs by requiring a party to make provision for one law only. The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) sets forth such a set of uniform private international law rules for (most of) the member states of the EU. The book provides students and practitioners with a concise and instructive article-by-article commentary which explains the underlying concepts and suggests solutions for problems that have arisen or may arise in the application of the Regulation.
At the end of November 2019, Professor Franco Ferrari, the Center’s Director, was appointed as a member of the Advisory Committee of the Saudi Center for Commercial Arbitration (SCCA). The Advisory Committee is composed of 14 Committee members (residing in 11 different countries with 10 different nationalities), each of whom was selected after a vigorous process of identifying leading international arbitration specialists. The Committee’s main task will be to advise the SCCA on its services and products to secure and promote international best practices and standards. In particular, the Committee will provide guidance on future revisions of the SCCA’s rules and procedures.
On September 23, 2019, Professor Ferrari, the Director of the Center, was reappointed as President of the Thailand Arbitrator Committee established at the Thailand Arbitration Center (THAC) for a period of three years. The tasks of the President of the Arbitrators Committee are outlined in the Arbitrator Committee Rules. In light of these Rules, Professor Ferrari will preside of the meetings in which the Thailand Arbitrator Committee will take decisions regarding the challenges to arbitrators. As President of the Arbitrator Committee, Professor Ferrari will, however, be the sole responsible for appointments and removals of arbitrators.
Earlier this year, Professor Ferrari was appointed by Claimant in an Investor-State arbitration under the 1976 UNCITRAL Arbitration Rules administered by the PCA (Khadamat Integrated Solutions Private Limited (India) v. The Kingdom of Saudi Arabia, PCA Case n. 2019-24).
On June 10, 2019, Professor Ferrari gave a talk on the sources of inherent powers of arbitrators at the Korean Commercial Arbitration Board, the sole arbitral institution in Korea that is statutorily authorized to settle disputes under the Korean Arbitration Act.
Professor Ferrari has just edited the new issue of the European International Arbitration Review (“EIAR”). The EIAR is a law review that publishes monothematic issues, since Professor Ferrari took over as its editor-in-chief in 2016. The latest issue, EIAR 7.2, is dedicated to “Soft Law in International Arbitration”.
Professor Ferrari, the Center’s Director, has just published a paper in the Oslo Law Review. The paper addresses the contentious relationship between uniform substantive law conventions and private international law rules in relation to contracts of carriage. In the paper, Professor Ferrari discusses why resort to private international law has to give way to the application of uniform substantive law conventions. The paper was presented at a conference that took place in Oslo in May 2018.
On April 9, 2019, Professor Ferrari gave a talk on “Hardship-Clauses in International Sales Contracts” on the occasion of a workshop co-hosted by the Center and Bucerius Law School on the occasion of the 3rd Hamburg Arbitration Day. The talk by Professor Ferrari focused on how the economic crisis has affected long-term international sales agreements, more specifically, whether the United Nations Convention on Contracts for the International Sale of Goods deals with economic hardship and what consequences the answer to this question triggers.
On February 21, 2019, Professor Ferrari spoke at a conference entitled “How international should international arbitration be? International standards v. domestic law in international commercial arbitration”. The event, which was co-sponsored by the Singapore International Arbitration Centre, was be hosted by Norton Rose Fulbright (Asia) LLP.
On February 18, 2019, Professor Ferrari gave a talk on “Economic Hardship under the CISG: A Hard Issue”. The talk focused on how the economic crisis has affected long-term international sales agreements. Plummeting prices led to importers wanting to get out of these long-term agreements. Professor Ferrari’s talk addressed the issue of whether the United Nations Convention on Contracts for the International Sale of Goods answers the question of whether importers can do so or not .
From June 11-15, 2018, Professor Ferrari co-taught a capacity building program at the Thailand Arbitration Center aimed at practitioners and government lawyers operating in Thailand and surrounding countries.
On May 17, 2018, Professor Ferrari gave a talk on “Bridging the Gap between International Commercial and Investment Arbitration” at a two-day conference that took place at the City University of Hong Kong entitled “Conference on Dispute Resolution in Asia and Beyond: Progress and Trends”. The presentation by Professor Ferrari was based on a paper co-authored by Professor Ferrari and Dr. Friedrich Rosenfeld, a Global Adjunct Professor at NYU Law in Paris, published in the NYU Journal of Law & Business (vol. 12: 295) analyzing the interaction of between the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) and international investment law. The starting point of their analysis are the cases in which the domestic authorities in the country where enforcement of an arbitral award is sought unduly interfere with the enforcement instead of taking the arbitration-friendly stance required by imposed by the New York Convention. In these instances, a success in arbitration proceedings may turn out to be a mere pyrrhic victory. This holds true, in particular, where all of the debtor’s assets are located in one jurisdiction. Here, a contracting state’s compliance deficit with the New York Convention cannot be mitigated by seeking enforcement in a different contracting state. In response to these shortcomings, investors have begun to exploit the linkages between the New York Convention and the regime of international investment law.
On May 2, 2018, Professor Ferrari gave a talk on the occasion of a conference held in Oslo. The Norwegian Ministry of Justice has requested Professor Giuditta Cordero‐Moss, a professor at the University of Oslo, to submit a proposal for a statute on choice of law rules for contractual and non‐contractual obligations. The conference Professor Ferrari attended was organized to ensure that the proposal would reflect state‐of‐the‐art knowledge in the area of conflict of laws at the international level. As for Professor Ferrari, he addressed the relationship between conflict of laws rules and uniform substantive rules and propose a statutory provision aimed at ensuring the primacy of uniform substantive law.
Professor Ferrari has just published the second edition of a book co-authored with Professor Marco from Verona University School of Law on the 1980 United Nations Convention on Contracts for the International Sale of Goods. The Convention, which covers more than 3/4 of world trade, is in force in 91 States, including the United States and its most important trading partners. The book, which is part of West’s Nutshell series and is aimed at both practitioners and scholars, covers the Convention’s basic rules one should be aware of, so as to avoid surprises when doing business with parties having their place of business in other countries.
Professor Ferrari has just published the third edition of a book entitled “International Contract Law” in German. Like the previous two editions, the book contains article-by-article commentaries of the most important conflict of laws and substantive law instruments addressing international contracts applicable in Europe, namely the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), the 1956 Convention on Carriage of Goods by Road, and the 1988 UNIDROIT Convention on International Factoring. The 1750 page book allows practitioners and scholars to find guidance on how to solve the most intricate conflict of laws and substantive law problems falling under the purview of the aforementioned instruments. This is also why the courts of several countries, including the German Supreme Court (most recently in its decision of 7 December 2017, docket n. VII ZR 101/14), and the Austrian Supreme Court (most recently in its decision of 29 November 2017, docket n. 8Ob12/17y), have had resort to the earlier editions of the book.
Professor Ferrari has just co-edited (together with Professors Linda J. Silberman, the Clarence D. Ashley Professor of Law of NYU School of Law) an anthology on the recognition and enforcement of foreign judgments. This anthology offers a 24-article tour of the history, principles and future of the recognition and enforcement of foreign judgments. The collection of seminal pieces selected reflects the viewpoints of authors from different countries and legal systems and explores different approaches to, and comparative perspectives of, judgment recognition and enforcement. Topics covered include the special issues of the revenue rule and the role of public law, the effects of fraud, the scope of preclusion, and the impact of class actions. The collection also looks to the future, considering possible solutions to harmonizing recognition and enforcement and assessing how the development of human rights may impact judgement recognition and enforcement. Prefaced by an original and informative introduction by the editors, the anthology is an essential resource for those studying, researching or practicing in this area.
Professor Ferrari has just published a paper (in the Italian Rivista di diritto civile (2018), 280) on a decision by the Italian Supreme Court, rendered on 5 July 2017, which for the first time ever recognized a US decision awarding punitive damages. In his paper, Professor Ferrari, an expert inter alia on European conflict of laws, compares the Italian decision with decisions rendered both in Germany and France and concludes that the Italian Supreme Court’s decision is basically in line with those of the Supreme Courts of Germany and France, even though the Italian Supreme Court expressly sets forth certain requirements for the recognition that prima facie are required neither under German nor under French case law.
On March 15, 2018, Professor Ferrari gave a talk in German on “forum shopping and the new rules of the German Arbitration Institution” (DIS) on the occasion of a two-day conference focusing on the new arbitration rules that came into force on March 1, 2018. In his talk, Professor Ferrari focused on what characteristics of the new DIS rules may lead parties to choose the new rules over the rules of other arbitration institutions when opting for arbitration over litigation in courts.
In mid-January 2018, the American Society of International Law (ASIL) announced that it would award its 2018 Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars to the Encyclopedia of Private International Law co-edited and co-authored by Professor Ferrari. In a memorandum, ASIL’s Book Awards Committee stated that “[t]he value and timeliness of this work to academics, international lawyers and others is difficult to over-state.” Bringing together 195 authors from 57 countries, the Encyclopedia sheds light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The role and character of Private International Law has changed tremendously over the past decades. And it is these changes that the Encyclopedia focuses on. The Encyclopedia is a rich and varied resource in four volumes. The first two volumes provide comprehensive coverage of topical aspects of Private International Law in the form of 247 alphabetically arranged entries. The third volume provides insightful detail on the national Private International Law regimes of 80 different countries. The fourth volume presents invaluable, and often unique, English language translations of the national codifications and provisions of Private International Law in those countries.