Letters Blogatory

The Blog of International Judicial Assistance | By Ted Folkman of Folkman LLC

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Credit: Jonathunder (CC BY-SA)

Consumer Arbitration: A Cautionary Tale

Posted on June 26, 2020

Readers, you may know that in addition to serving as an arbitrator in commercial cases, I hear consumer cases under the American Arbitration Association’s consumer arbitration rules. My own experience, which I hope is shared by the parties that appear before me in consumer cases, is that done right, a consumer arbitration can provide a very high quality of justice to the parties in a reasonable time for a reasonable cost. But consumer arbitration is different than most arbitration, because in many cases, the consumer does not want to be there. Yes, the consumer has signed the agreement to arbitrate, and yes, under the law the agreement to arbitrate is, in most cases, valid and binding. But many consumer contracts are really contracts of adhesion—contracts drafted by the business and presented to the customer on a take-it-or-leave-it basis, with no possibility of negotiation and often no real understanding of what the consumer has signed. I was at the 2019 annual meeting of the American Law Institute, where we debated the proposed restatement of the law of consumer contracts, and if there is one thing everyone agreed on at that very contentious meeting, it is that no one, not even ALI members, read the many consumer contracts we all sign, or these days click on, all the time.

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Victoria Associates

Posted on June 17, 2020

Victoria Associates logo

Readers, I am very happy to announce that I have joined Victoria Associates, a group of lawyers from around the world who handle international disputes, in court and in arbitration. The founders and driving forces behind Victoria Associates are my friends and now colleagues George Yates, Duarte Henriques, and Lee Boyd, three eminent practitioners in their fields. The other members of the group are Luis Bergolla, a doctoral candidate at Stanford and professor of practice at the University of Arizona College of Law, who is qualified in several US jurisdictions as well as in Spain and Venezuela, Marta Faria Carter, who practices in Lisbon, Tony Ng, who is with the AIAC in Kuala Lumpur, Matheus Puppe, who practices in Frankfurt, Miguel Salas, in Seville, and Kyriaki Noussia, in Athens.

Think of Victoria Associates as the global disputes team at a really big law firm, just without … the really big law firm. We have lawyers qualified in jurisdictions around the globe, with a special focus in the Lusophone world. We work both in the world of arbitration and in the world of litigation.

Does this mean the end of Folkman LLC? No way! Victoria Associates is not a law firm: it’s a network of lawyers who work together on cross-border cases where our unique mix of lawyers with varying areas of expertise make us a good fit. But each of us is an independent practitioner. I will continue to work in my two areas of practice, namely international judicial assistance / private international law and Boston civil and commercial litigation. But when I have a case that requires the collective talents and resources of my new colleagues, I will work with them to give our clients the same level of skill and judgment they could expect from groups many times our size. And I will do the same for them when they have cases where I can contribute.

Stay tuned for news from Victoria Associates—I will bring it to you as it happens.

Burmese protesters outside the Peace Palace

1782 to Watch: In re Republic of the Gambia

Posted on June 11, 2020

You may be interested in a § 1782 application just filed in Washington by the Republic of the Gambia, which is prosecuting a case against Myanmar in the International Court of Justice concerning the situation of the Rohingya people. This brings to mind my last visit to the Hague in December, when I arrived early in the morning at the Peace Palace for a talk I was giving at a Hague Conference event. There were large crowds chanting slogans and waiving flags outside the Peace Palace grounds. Surely they weren’t there out of an interest in the Service Convention? It turned out they were Burmese people there to support their President, Aung San Suu Kyi, who was there to present Myanmar’s case before the ICJ. The photograph that goes with this post is my photo of the demonstrators as I was entering the Peace Palace.

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