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Litigation
2!
� The image ¡ Expensive ¡ Lengthy ¡ Public
� The real world ¡ Coercive powers ¡ Injunctive relief ¡ Role of ADR
Arbitration
3!
� The image ¡ Quick ¡ Cheap ¡ Confidential
� The real world ¡ Consensual ¡ Private, but not necessarily
confidential ¡ Party control over
appointment of arbitrators ¡ No coercive/injunctive powers ¡ Flexible procedure, but
beware multi-party ¡ Easy enforceability of award
(New York Convention)
Arbitration (2)
4!
� Institutional rules or ad hoc? � Institutional = administered = fee
Leading Institutions!
!The West!• International Chamber of Commerce (ICC)!• The London Court of International !Arbitration (LCIA)!• International Centre for Dispute Resolution!(ICDR)!• Stockholm Chamber of Commerce!• Swiss Rules of International Arbitration!!
The Middle East!• Dubai International!Arbitration Centre (DIAC)!• Cairo Arbitration Centre!• Arab Centre for !Commercial Arbitration!• ICC National Committees!
Others!• Permanent Court of Arbitration!• The International Centre for the Settlement of Investment Disputes (ICSID)!
Arbitration (3)
5!
� Ad hoc ¡ Bespoke rules ¡ UNCITRAL Arbitration Rules ¡ Arbitration Act 1996 ¡ No fee, but no administrative body
Expert Determination
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� Useful for technical disputes on discrete issues
� Can save time and costs � Can preserve contractual
relationship � Careful drafting of the
clause
Beware! � Limited ability to challenge
÷ Expert answered wrong question ÷ “Manifest error” is interpreted very
restrictively ÷ Fraud
� Cannot challenge for error of fact or law
� No due process � “The third way”
ADR
7!
� Means to assist settlement
� Party control � Flexible process � Room for constructive
solutions � Confidential � Part of tiered dispute
resolution system
Beware! � Willingness of the
parties to submit to the process
� Not suitable for certain kinds of disputes
� Impose deadlines
Checklist for clauses
8!
� How short can a clause be? � Which arbitration rules? � One or three arbitrators?
¡ How many “sides”? � Web of agreements – consider consolidation � Place and language of arbitration
Drafting a clause
9!
� Consider tiered clauses ¡ Negotiation or ADR as a preliminary step ¡ Provide a time frame
� Beware too many/unnecessary tiers, which may lead to waste of time/costs
� Expert determination ¡ Circumscribe the dispute carefully
Spot the defect (1)
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This JVA shall be governed by and interpreted in accordance with the laws of Turkey, excluding its conflict of laws rules. Any dispute, controversy or claim arising out of or relating to this JVA, or the breach, termination or invalidity thereof, which cannot be settled amicably between the parties, shall be finally settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC”) by three (3) arbitrators selected from the ICC list of arbitrators.
Spot the defect (2)
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The three (3) arbitrators shall be nominated a follows: The claimant (in the first instance) shall nominate one (1) arbitrator and the respondent (in the first instance) shall nominate the second arbitrator, and the third arbitrator shall be nominated jointly by the two (2) arbitrators so nominated. If either Party fails to nominate its arbitrator or the two arbitrators of the arbitral tribunal fail to nominate the third arbitrator then the missing arbitrator shall be appointed under the ICC rules. The award shall be final, binding and enforceable by any court having jurisdiction for that purpose. The arbitration shall be conducted in the English language in Geneva. The arbitrators shall not have the power to amend or add to the provisions of the JVA.
Arbitration as a business tool
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� Choice of ¡ Rules ¡ Forum ¡ Arbitrators
� Enforceable awards
Arbitration as a business tool
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� EARLY consideration of ¡ Drafting of the arbitration agreement ¡ Choice of forum ¡ Choice of arbitrators
Business Tool No 1: The Arbitration Agreement
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� Before you write anything down, consider ¡ Type of contract ¡ How many parties ¡ How many sides ¡ Inter-related agreements
Business Tool No 1: The Arbitration Agreement
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� Limits to the arbitration process ¡ No coercive powers
÷ Need support of the courts ¡ Multiple contracts or parties to be catered
for specially ¡ NOT inexpensive or quick ¡ Limited confidentiality
Business Tool No 1: The Arbitration Agreement
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� Institutional or ad hoc � The language of arbitration � The procedure
¡ A multi-step dispute resolution process ¡ Assistance from State courts during the
arbitration process � Confidentiality clause
Business Tool No 2: Choosing the Forum
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� A Neutral Forum � A legal system based on the rule of
law � State Courts supportive of
arbitration � State a party to the New York
Convention
Business Tool No 3: Choosing the Arbitrators
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� A crucial step within the parties’ control
� Independance and impartiality � Technical or industry knowledge or
experience ¡ The Energy Arbitrators’ List
� Role of the party-appointed arbitrator
Business Tool No 4: A Binding and Enforceable
Award
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� The 1958 New York Convention ¡ Award recognised and enforced without
examination of the merits of the dispute ¡ Breadth of recognition that is not available
to foreign judgments
Achilles’ Heels
� Reaching Third Parties � Piercing the Corporate Veil
¡ “Single economic entity” � Interim relief � Compelling enforcement
Arbitrating against a State party
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� Special considerations apply ¡ Choice of law ¡ Publicity ¡ Enforcement
Conclusions
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� Dispute resolution should be part of your business strategy
� Time and cost saving measures can be factored into your dispute resolution clause
� Take early advice