85 Fordham L. Rev. Res Gestae 1 (2016-2017)

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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