Catherine A. Rogers

Milano, Lombardia, Italia Informazioni di contatto
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Professor Rogers is a Full Professor of Law at Bocconi University and an Affiliated…

Articoli di Catherine A.

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Esperienza e formazione

  • Università Bocconi

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Pubblicazioni

  • Reconceptualizing the Party-Appionted Arbitrator and the Meaning of Impartiality

    Harvard International Law Journal

    Despite the popularity of the age-old practice, several prominent critics contend that party appointment injects bias into a tribunal that is supposed to be impartial.
    Various empirical studies seem to confirm the uncomfortable contradiction between the rhetoric of impartiality and the purportedly biased conduct of party-appointed arbitrators. Most of these empirical claims, however, are deeply flawed both in their substance and methodology. More fundamentally, these claims ignore Legal…

    Despite the popularity of the age-old practice, several prominent critics contend that party appointment injects bias into a tribunal that is supposed to be impartial.
    Various empirical studies seem to confirm the uncomfortable contradiction between the rhetoric of impartiality and the purportedly biased conduct of party-appointed arbitrators. Most of these empirical claims, however, are deeply flawed both in their substance and methodology. More fundamentally, these claims ignore Legal Realism’s insight that decisionmaker “bias” (or reliance on extra-legal factors) is an inevitable consequence of law’s inherent indeterminacy.
    If some forms of bias are inevitable, it does not make sense to ask whether bias exists. Instead, more nuanced questions must be asked: Which forms of bias are legitimate? Who decides which forms of bias are legitimate? And how do we police the boundary between legitimate and illegitimate forms of bias? This Article answers these questions with respect to party-appointed arbitrators.
    Rejecting both critiques and defenses, this Article makes an affirmative case for party-appointed arbitrators. This Article reconceptualizes party-appointed arbitrators as an essential structural check against various forms of cognitive bias that necessarily exist among all arbitrators on all arbitral tribunals. Arbitrators’ cognitive biases cannot be eliminated, even by eliminating party-appointed arbitrators. They can, however, be bounded and counter-balanced by reconceiving party-appointed arbitrators as a type of Devil’s Advocate that guards against the cognitive biases that distort tribunal decision making.
    In this reconceptualized role, party-appointed arbitrators serve important functions that validate the practice of party-appointment. This reconceptualized role, in turn, facilitates deliniation of specific impartiality obligations that are both more conceptually coherent and more consistent with actual practice and expectations.

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  • Ethics in International Arbitration

    Oxford University Press

    Despite international arbitration’s impressive growth and obvious maturation in recent years, many question remain unanswered about the ethical duties and professional conduct of those who participate in the arbitral process. What is the source of their duties? Are specialized international ethical rules
    feasible and desirable? If so, who should promulgate them and how should they go about it? How do ethical obligations applicable in international arbitration relate to the ethical…

    Despite international arbitration’s impressive growth and obvious maturation in recent years, many question remain unanswered about the ethical duties and professional conduct of those who participate in the arbitral process. What is the source of their duties? Are specialized international ethical rules
    feasible and desirable? If so, who should promulgate them and how should they go about it? How do ethical obligations applicable in international arbitration relate to the ethical obligations that national legal systems impose? Who should enforce such rules? What penalties or sanctions should apply to ethical violations? And, more generally, why does this all matter?

    "At last, not only a book that addresses the long-neglected topic of ethics in international arbitration, but THE definitive book on the subject. Prof. Catherine Rogers' treatise, Ethics in International Arbitration (Oxford Press 2014) covers the field comprehensively, both in terms of theory and existing international norms. Prof. Rogers was the first commentator to publish articles that attempted a methodical approach to counsel ethics in international arbitration, more than a decade ago, and now this book takes the broader subject to its logical conclusion?the ethical obligations of counsel, arbitrators, expert witnesses, and third-party funders in international arbitration. This book is a necessary addition to the library of any specialist, or anyone aspiring to be a specialist, in the field of international arbitration. It will one day be considered a classic, necessary reading in the field, around which courses will be designed. I highly recommend it." - Doak Bishop

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  • Challenging and Enforcing International Arbitral Awards in U.S. Federal Courts: An Empirical Study

    Virginia Journal of International Law, Vol. 65, 2024

    Conventional wisdom is that international commercial arbitration is the preferred method of resolving transnational business disputes. One of the primary reasons why transnational actors prefer international arbitration over international litigation is that they anticipate that international arbitral awards, if not voluntarily complied with, are highly likely to be enforced by national courts, especially U.S. federal courts. Historically, many have estimated that national courts give effect to…

    Conventional wisdom is that international commercial arbitration is the preferred method of resolving transnational business disputes. One of the primary reasons why transnational actors prefer international arbitration over international litigation is that they anticipate that international arbitral awards, if not voluntarily complied with, are highly likely to be enforced by national courts, especially U.S. federal courts. Historically, many have estimated that national courts give effect to about 90% of all awards. When scholars set out to test empirically this estimated 90% rate, they reported finding lower rates at which courts give effect to awards.

    These empirical studies, however, all suffer from methodological shortcomings, which distorted their results. The primary methodological deficiency of these studies was their reliance on commercial databases, such as Westlaw or kluwerarbitration.com. This Article, by contrast, reports on U.S. federal court treatment of international arbitral awards based on an original dataset compiled from U.S. federal court docket sheets. We find that other empirical studies understate, sometimes dramatically, the rates at which U.S. federal courts give effect to awards.

    Based on this original dataset of 9601 petitions to confirm, enforce, or vacate international arbitral awards that were filed in cases docketed in U.S. federal courts between 2011 and 2019, our central findings are that (1) federal courts vacated or denied confirmation or enforcement of only 5.7% of contested petitions and only 3.3% of all petitions.

    In other words, the rates at which U.S. federal courts give effect to international arbitral awards are significantly higher than reported to date. These findings differ substantially from prior studies and provide a foundation for a more complete and accurate understanding of post-award actions in U.S. federal courts. In addition to these, we also identify several other interesting trends.

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  • English (native speaker), Italian (conversational), French (basic)

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