![handle is hein.journals/resgest7 and id is 1 raw text is:
ARBITRATION WITHOUT LAW: CHOICE OF
LAW IN FRAND DISPUTES
Eli Greenbaum*
INTRODUCTION
Recent arbitration between InterDigital and Huawei seems to
demonstrate the purported advantages of arbitration as a means of dispute
resolution.1 The warring parties subsumed their multiple suits across
different jurisdictions and forums into a single binding arbitral process. By
virtue of the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards2 (the New York Convention), the arbitral award would
be enforceable across jurisdictions. But even an agreement to arbitrate
requires agreement on certain basic matters. On the most fundamental
level, it requires agreement on the substantive and procedural laws
governing the dispute, as well as the situs-or location-of the arbitration.3
The InterDigital arbitration shows the unfortunate difficulty of bridging
even these basic gaps, and the recent Southern District of New York
decision in InterDigital Communications, Inc. v. Huawei Investment &
Holding Co.,4 concerning the arbitral award, may make such agreement
even harder. At the same time, however, InterDigital provides unexpected
insight into when proceeding without such agreement can facilitate dispute
resolution. An agreement on substantive law may not necessarily provide
legal clarity, and arbitrating parties should weigh the difficulty of obtaining
consensus on such basic matters against the certainty that substantive law
can, in practice, bring to the arbitration.
* Partner, Yigal Arnon & Co., Jerusalem, Israel. J.D., Yale Law School; M.S., Columbia
University.
1. See InterDigital Commc'ns, Inc. v. Huawei Inv. & Holding Co., 166 F. Supp. 3d
463, 466 (S.D.N.Y. 2016).
2. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards art.
1, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter New York Convention].
3. See ALAN REDFERN ET AL., LAw & PRACTICE OF INTERNATIONAL COMMERCIAL
ARBITRATION 119, 159 (4th ed. 2004) (noting that parties should choose governing law
with proper care and consideration and describing the place of arbitration as a decision of
major importance). Of course, disputants must make other significant decisions concerning
the scope and procedures of the arbitration. See generally Jorge L. Contreras & David L.
Newman, Developing a Framework for Arbitrating Standards-Essential Patent Disputes,
2014 J. DIsP. RESOL. 23 (discussing choices for the scope and proceedings of a FRAND
arbitration).
4. 166 F. Supp. 3d 463 (S.D.N.Y. 2016).
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