Timothy G. Nelson
Four Times Square
New York, NY 10036
Skadden, Arps, since 2000 (associate 2000-06; counsel 2006-08; partner since 2008; previously: Solicitor, Wilde Sapte (1997-99), Solicitor, Freehill Hollingdale & Page, 1992-94, 1995-96, Policy Advisor, New South Wales Attorney-General (1994-95); Judge's Associate, Federal Court of Australia (1991)
Do you believe that there is a role in arbitration for dispositive motions?
Some rules specifically contemplate pre-hearing dispositive motions and, in those systems, there plainly is is a potential role for them.Beyond that, almost all institutional rules give the arbitrators power to conduct the case efficiently and expeditiously (and/or bifurcate the case), thus creating a potential role for dispositive motions.In all instances, however, one must examine whether the facts and issues in the particular case lend themselves to dispositive motions.So the "role" of dispositive motions is usually a case-specific question.
What is the importance in arbitration of cross-examination?
I am the co-editor of "Take the Witness: Cross-Examination in International Arbitration" and so I rate cross-examination as being a highly important feature of the system, both in truth-finding and in enabling the arbitrators to understand the parties' perspectives on the case.
How do you deal with requests for subpoenas of third-party witnesses and/or documents?
When an arbitrator receives a request from one of the parties to issue a subpoena on a third party, the first issue usually is whether the arbitrator actually has the power to do this. Within the United States, arbitrators have the statutory power to issue subpoenas to third parties in certain circumstances. There is case law that defines the precise extent of that power as regards witness testimony and the production of documents. Other countries' arbitral laws may address the issue differently.
Assuming the power exists, the decision whether or not to issue the subpoena will depend on the requesting party's ability to persuade the tribunal that it serves the interests of justice in the particular case, having regard to the nature of the evidence being sought, the timing of the request, the impact on the third party (and the other party in the arbitration), and other factors.
American Society of International Law, Law Council of Australia (New York Chapter), Journal of Enforcement of Arbitration Awards (co-editor)
Australian Centre for Commercial Arbitration
Counsel in numerous commercial and investment arbitrations, including Gas Natural v. Atlantic LNG (UNCITRAL, award in 2016 – LNG supply contract dispute); Devas Multimedia v. Antrix Corp. (ICC, award in 2015 – satellite lease agreement); Amaprop v. Indiabulls (ICDR/AAA 2011-12–share option dispute); Prospect v. Enmon (AAA 2006-08 – financial due diligence and oil pipeline refurbishment business); CC/Devas (Mauritius) v. India (PCA/UNCITRAL ongoing; expropriation dispute; liability award in 2016), Gambrinus Corp. v. Venezuela (ICSID 2012-17); CEMEX Caracas v. Venezuela (ICSID 2008-12 – expropriation of cement facility), Kardassopoulos v. Georgia (ICSID 2005-11; expropriation of pipeline rights across Georgia), CEMEX Asia v. Indonesia (ICSID 2003-06 – shareholder dispute).
Take the Witness: Cross-Examination in International Arbitration (co-edited with Lawrence Newman) (Juris 2019)
The Defector, the Missing Map and the “Hidden Majority” - Coping with Fragmented Tribunals in International Disputes, Transnational Dispute Management (August 2018)
Evidentiary Inferences: Do Choice of Law and Seat Make a Difference? (Chapter by Karyl Nairn, Timothy G. Nelson and Paula Henin) in Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles (eds. Neil Kaplan & Michael Moser) (2018)
Boycotts and Walkouts in International Arbitration, 15 Transnational Dispute Management 2018
‘Home Country’ Arbitration Clauses — Worth the Trouble? Law360 Julie Bédard, Lea Haber Kuck, February 12, 2018
Mining Sector Disputes, Corporate Disputes (October - December 2017)
Moles, Bugs and Whistleblowers: Spycatcher in the 21st Century, Law360 (Sept. 28, 2016)
Mining Outer Space: Who Owns the Asteroids?, New York Law Journal (July 29, 2015)
RJR Nabisco’ and the Future of Extraterritoriality, The National Law Journal (with Lea Haber Kuck) (July 4, 2016)
Blowing Hot and Cold: State Commitments to Arbitrate Investment Disputes, World Arbitration & Mediation Review (2015)
Recent Cases Are Likely to Reduce the Use of New York Courts For ‘Turnover’ Actions, The Banking Law Journal (with Lea Haber Kuck) (July/August 2015)
The Lusitania and the Law, New York Law Journal (February 25, 2015)
Regulating the Void: In-Orbit Collisions and Space Debris, Journal of Space Law (2015-16)
The Energy Charter Treaty (with David Herlihy and Nicholas Lawn) in Arbitration World (5th Ed. 2015)
Blast from the Past: The French Nuclear Test Cases, and their Relevance to 21st Century Arbitration, Les Cahiers de l’Arbitrage/ Paris Journal of International Arbitration (2014)
Navigating the ‘Gateway’ to International Arbitration in the U.S. Courts - A Decade of Adventures, Post-Howsam, World Arbitration & Mediation Review (2014)
A Factory in Chorzów: The Silesian Dispute That Continues to Influence International Law and Exploration Damages Almost a Century Later, The Journal of Damages in International Arbitration (2014)
DSK and Assange: Two Controversial Cases That Test Diplomatic Law, New York Law Journal (Feb. 13, 2013)
Whale Wars in Seattle: A U.S. Court Discusses Antarctic Whaling, marinebio.org (2012)
The explosion and the testimony: The WWI Sabotage Claims and an International Arbitral Tribunal’s Power to Revise its Own Award - 23 Am. Rev. of Int’l Arb. (2012)
Going Dutch - The Many Virtues of the Netherlands Model BIT - IBA Dispute Resolution International (2012)
When the Lights Went Out: The Strange Death and Stranger Afterlife of the Barcelona Traction Case, Paris Journal of International Arbitration (November 2011)
Can Parties to a NAFTA Arbitration Get Discovery from U.S. Courts Under 28 U.S.C. § 1782? The Methanex Question Revisited, Mealey’s International Arbitration Report (Feb 2011)
RSM And Millicom: Two African Cases Illustrate the Continued Vitality of Contractual Arbitration Clauses within ICSID, 12 Journal of World Investment & Trade (2010)
Render Unto Caesar No More? The Use of Investment Arbitration to Challenge Taxation Measures, New York Law Journal (with Julie Bedard) (Apr. 12, 2010)
Annulment of International Arbitration Awards: The Orinoco Steamship Case Sails On, 28 ASA Bull. 205 (2010)
An odious reality (with Julie Bedard), International Financial Law Review (June 3, 2010)
Arbitrating in good faith and protecting the integrity of the arbitral process, 3 Cahiers de l’arbitrage - Paris journal of international arbitration (Paris) 737 (2010)
“History Ain’t Changed”: Why Investor-State Arbitration Will Survive the ‘‘New Revolution, in M. Waibel et al, (ed.) The Backlash Against Investment Arbitration (2010)
Down in Flames: Three U.S. Courts Decline Recognition to Judgments from Mexico, Citing Corruption, 44 Dispute Resolution International 987 (2010)
The Moon Agreement and Private Enterprise: Lessons in Investment Law, 17 ILSA Journal of International & Comparative Law 393 (2010)
Investor-State Arbitration & Investment Treaty Protection -- The South-East Asian Angle, 28 Australian Resources & Energy Law Journal 213 (July 2009)
Relinquishing Jurisdiction over Statutory Claims (with Julie Bedard), New York Law Journal (April 13, 2009)
The Taiwan Relations Act, 30 Years on – Encounters and Successes in U.S. Courts, Journal of World Investment & Trade (2009)
‘Inexcusable’ gamesmanship sinks arbitration pact (with Lea Haber & Paul Mitchard), New York Law Journal (August 03, 2009)
Passports S’Il Vous Plait? Investment Treaty Protection and the Individual Investor’s Citizenship, 32 Suffolk Transnational Law Journal 451 (2008)
Paranoids have Enemies Too: Wiretapping and Other Clandestine Information-Gathering Techniques in International Arbitration, Mealey’s International Arbitration Report (September 2008)
The President’s Plane is Missing: If Foreign Leaders Flee to the US
They Can Expect Their Litigation to Follow Them, (with Julie Bedard) Int’l Financial Law Rev. (August 2008)
The Strange Case of the Invisible Treaty: The 1975 Panama Convention on International Commercial Arbitration, 4 Rev. Bras. Arb. 101 (2007-2008)
When Is an Arbitration Not an Arbitration? —Global Gold and The Problem of Institutional Veto, Mealey’s International Arbitration Reporter (2008)
Overseas Defendants in Non-Hague Territory: Serving Process in the 130 Countries Outside the Convention, New York Law Journal (with Julie Bedard) (August 2007)
BRIDAS v. Government of Turkmenistan: U.S. Courts Uphold an Arbitrator’s Power to Hold A Foreign Sovereign Liable for the Acts of its State-Owned Enterprise (2006) 24 ASA Bulletin, Issue 3, pp. 584–599
Nothing Left to Chance: Thunderbird v. Mexico and the Power of a Domestic U.S. Court to Review a NAFTA Investment Arbitration Award (with Marco E. Schnabl) Transnational Dispute Management 5 (2007)
Strange Bedfellows — The U.S. Government Supports the Iranian Defense Ministry’s Bid for Sovereign Immunity from Attachment of an ICC Award, Mealey’s International Arbitrator Report (2006)