Alex, thanks for the interesting comment. Yes, arbitration can be used in tort claims, and yes it is possible to submit a dispute to arbitration even in the absence of an ex ante agreement to arbitrate. I’m a proponent of arbitration, for sure (I had better be!) But in the context of big transnational torts, it’s difficult for me to imagine both parties agreeing to arbitrate. I wonder if there are any examples out there to help us judge whether this is a real practical possibility?

By the way, we have have been following the news from Paris very carefully today here in Boston and I’m sure elsewhere. Nous sommes tous Français, especially today!

Arbitration can and does include tort claims, in particular when they arise in connection with a breach of contract that is covered by a contractual arbitration clause; ancillary tort claims are arbitrable in most jurisdictions, and efforts to bring those tort claims into courts in the presence of a sufficiently broad arbitration clause will not succeed.

Further, arbitration is not confined to ex ante arbitration agreements; parties to a tort or contract dispute may submit their dispute to binding arbitration after the dispute arises; the resulting award will be enforceable under the NY Convention.

If it is really in the interest of corporate America to identify an alternative forum, then I submit it should be far easier to convince parties to use a consensual arbitral forum than to create ex nihilo a new mandatory international jurisdiction that would necessarily create a whole range of new conflicts of law issues (not to mention the impossible political and diplomatic issues involved).