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Draper & Draper Submits U.S. Supreme Court Brief Defending Bedrock Arbitration Principle

Draper & Draper acted as counsel to amicus curiae Columbia Professor George A. Bermann on a brief submitted to the United States Supreme Court on the fundamental principle of party consent in arbitration.

In the case captioned Beijing Shougang Mining Investment Company, Ltd., et al., v. Mongolia, No. 21-1244, Petitioner is seeking a writ of certiorari from the Court to review the decision of the U.S. appeals court for the Second Circuit. The Second Circuit court had held that Petitioner, the claimant in an international arbitration, waived its right to de novo court review of the jurisdictional determination of the arbitral tribunal by participating and opposing the respondent's jurisdictional objection. Beijing Shougang Mining Inv. Co., Ltd. v. Mongolia, 11 F.4th 144 (2d Cir. 2021).

Under Supreme Court precedent First Options of Chicago v. Kaplan (1995), parties to arbitrations are entitled to de novo court review of the jurisdiction of the arbitrator, unless there is "clear and unmistakable" evidence that the parties agreed that the tribunal has primary authority to determine its own jurisdiction. Professor Bermann argues that the Second Circuit's decision in Beijing Shougang "eviscerates" First Options.

Matthew Draper, who acts as Counsel of Record for Professor Bermann, is a New York-based international arbitrator and counsel ranked by Chambers & Partners 2022 Global Guide and Who's Who Legal. He litigates the enforcement of arbitration agreements and awards in U.S. courts, and provides expert legal opinions to foreign courts on U.S. arbitration law. He was the co-Chair of New York Arbitration Week 2021, and is a Fellow of the Chartered Institute of Arbitrators and Vice Chair of its New York Branch. He also serves as Chair of the USCIB/ICC USA Arbitration Committee's Sole Practitioner's Group.

Partner Corinne Atton, who was also on the brief, acts as counsel in international arbitration. Her practice focuses on technology and natural resource disputes, transboundary water disputes, and climate change. She is a co-founder of the Climate IP Initiative and has extensive advocacy and trial experience, including before the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit, Federal District Courts, New York State Courts, and before the Court of Appeal and Chancery Division of the High Court of England and Wales.

Amicus Brief - Beijing Shougang v. Mongolia
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