International Arbitration and Mediation

by McIlwrath, Michael

• ISBN13: 9789041126108
• ISBN10: 9041126104
• eBook ISBN(s): 9789041155016
• Format: Hardcover
• Copyright: 2010-02-28
• Publisher: Kluwer Law Intl

Summary

This book guides practitioners and corporate counsel through all aspects of an arbitration. As arbitration has become the standard for international business, corporate counsel at multi-national companies are required to offer advice on a legal system which differs from their own. It covers questions such as: Do we really need arbitration in our contract (and if so, what arbitration best suits my company and contract)? How much will it cost (arbitrators, counsel, experts, etc)? How long will it take (not just time tables, but realistically)? What can I do to reduce the costs and time? What am I looking for when appointing an arbitrator? Do I really need to hire outside counsel? Do I really need to hire "local counsel "? If we are aggrieved, will arbitration allow effective recovery? How much will arbitration cost? How will arbitration affect the relationship with the opponent and do we care? Should we go to court or pursue ADR instead, whether or not required/allowed by contract? What about investment treaty remedies? If we are natural defendant, should we wait for claimant to sue or take the initiative? The title will provide International Corporate Counsel with a practical and yet exhaustive overview of international arbitration.

Table of Contents

Introduction	p. 1
Organisation of This Book	p. 4
International Arbitration	p. 5
International Mediation	p. 8
International Mediation and Arbitration as Risk Mitigators	p. 10
The Elements of an International Dispute Resolution Agreement	p. 11
Different Sorts of International Dispute Resolution Clauses	p. 12
The Basic Components of an International Dispute Resolution Agreement	p. 14
The Core of the Arbitration Agreement: Submission of Disputes to Arbitration	p. 15
Referral to Arbitration	p. 18
The Four Main Variables of an International Arbitration Clause	p. 20
The Place (or 'Seat') of Arbitration	p. 21
Place of Arbitration and Procedural Law	p. 23
Place of Arbitration and the Courts	p. 27
Place of Arbitration and Enforceability of Awards	p. 32
Good and Bad Places of Arbitration	p. 33
Institutions that Administer Arbitration and Mediation and Their Rules	p. 36
Nature and Role of Arbitral Institutions	p. 36
Which Arbitral Institution to Choose?	p. 39
International Chamber of Commerce (ICC)	p. 39
International Centre for Dispute Resolution (ICDR)	p. 45
London Court of International Arbitration (LCIA)	p. 47
Singapore International Arbitration Centre (SIAC)	p. 49
International Centre for Settlement of Investment Disputes (ICSID)	p. 51
Regional Institutions	p. 53
National Institutions	p. 55
Ad Hoc Arbitration	p. 62
Number of Arbitrators	p. 68
Language of the Arbitration	p. 70
'Bells and Whistles'	p. 72
Joinder and Consolidation	p. 73
Requiring Negotiation Prior to Arbitration	p. 77
ICC Pre-Arbitral Referee Procedure	p. 78
Arbitrator Qualifications	p. 79
Procedure and Evidence	p. 80
Allocation of Costs	p. 80
Time Limits for Award	p. 81
Baseball Arbitration	p. 81
Waiver of Sovereign Immunity	p. 82
Conclusion on Elements of an Arbitration Clause	p. 83
Agreements to Mediate before Arbitration	p. 84
The Elements of a Mediation Step Clause	p. 85
Mediation Institutions	p. 88
Negotiating an International Dispute Resolution Agreement	p. 93
Attempting to Avoid Negotiation: 'Standard' Dispute Clauses	p. 94
Negotiating the Dispute Clause on the Basis of Common Dispute Resolution Values	p. 95
Answering Objections to Using Arbitration (Rather than the Courts)	p. 96
Arbitration or Litigation: Which Is Better?	p. 97
Strategies to Address Resistance to Arbitration	p. 103
Answering Objections to Institutional Arbitration	p. 106
Answering the Insistence on Arbitration in a Country Without a Reliable Court System	p. 107
Mitigating, Quantifying, and Accepting the Risks of Disadvantageous or Imperfect Dispute Resolution	p. 110
Spotting the Real Deal-Breakers	p. 113
When the Dispute Arises	p. 117
Preliminaries Once Litigation is Probable	p. 118
Contractual Pre-arbitration Procedures	p. 119
Letters Before Action and Preliminary Correspondence	p. 121
Privilege and New Document Creation	p. 123
Key Employees and Witnesses	p. 124
Documents	p. 125
Insurance Notifications	p. 129
Media	p. 130
The Decision Whether to Submit or Respond to a Request for Arbitration	p. 132
Claimant or Respondent?	p. 132
Alternatives to Commencing Arbitration, or to be Carried Out in Conjunction with Starting Arbitration	p. 132
Amending the Dispute Resolution Clause	p. 133
Considering and Proposing Informal Resolution Options	p. 133
Using Early Evaluation to Quantify the Entire Dispute Risk	p. 134
The Nature of an Early Case Assessment (ECA): Predicting the Ultimate Outcome arid the Cost of Getting There	p. 135
Gathering Evidence and Assessing the Facts	p. 139
Assessing the Legal Merits	p. 144
Potential Implications of an ECA on Balance Sheet Accounting (Financial Reserves of Disputes)	p. 144
Estimating the Total Cost of the Arbitration and Factors Influencing Costs	p. 146
Engaging and Disengaging Counsel	p. 154
'In-sourcing' Arbitration Work	p. 154
Retaining External Counsel	p. 156
Estimating, Budgeting, and Managing Costs of External Counsel	p. 165
Disengaging and Replacing External Counsel	p. 170
International Settlement Negotiation and Mediation	p. 173
Optimising the Settlement Process	p. 176
Settlement Goals that Leverage the Uncertainties of a Dispute	p. 177
Selling the Idea of Mediation	p. 180
Proposing Mediation to the Other Side(s)	p. 182
Arb-Med: Combining Mediation and Arbitration	p. 185
Finding an International Mediator and Organising the Mediation	p. 187
Agreeing on When and Where	p. 187
Finding the Right Mediator for the Parties and the Dispute	p. 188
Traditional Sources of Information about Potential Mediators	p. 189
Mediation and Arbitration Institutions	p. 191
Emerging Information Sources: Certification, Directories, and Blogs	p. 192
Important Criteria for Identifying a Suitable Mediator	p. 194
Mediator Fees	p. 201
Affirming the Confidentiality of the Mediation	p. 205
Mediation Logistics	p. 207
Scheduling Considerations in Delaying or Deferring the Arbitration or Other Binding Dispute Resolution Pending Mediation	p. 208
Mediation Advocacy	p. 208
Procedural Flexibility of Mediation	p. 209
Preparation and Advocacy before the Mediation Begins: Obtaining Settlement Authority and Defining Settlement Objectives	p. 210
Position Papers and 'For Mediator's Eyes Only' Memoranda	p. 216
Strategic Use of Opening Offers and Counteroffers	p. 217
Advocacy at the Plenary Session	p. 218
Effective Advocacy during Caucusing Sessions	p. 220
Establishing Direct Contact with the Other Side	p. 221
Documenting the Settlement	p. 222
Concluding without Settlement but Leaving the Door Open	p. 223
Common Pitfalls for Advocates in a Mediation	p. 224
The Conduct of the Arbitration	p. 225
The Preliminary Phase	p. 227
Commencing the Arbitration: The Request for Arbitration	p. 227
Other Initial Written Submissions: Answer and Reply	p. 236
Default Proceedings: When a Party Does Not Participate in the Arbitration	p. 238
Early Disposal for Lack of Jurisdiction	p. 241
Appointment of Arbitrators	p. 245
Drawing up a Shortlist: Obtaining Information about Arbitrator Performance	p. 253
Approaching the Candidates	p. 255
Interviewing Arbitrator Candidates and Further Due Diligence	p. 255
Evaluation and Decision	p. 257
Selection of Sole Arbitrator or Chair by Agreement of Parties or Co-arbitrators	p. 257
Challenge, Removal, and Replacement of Arbitrators	p. 260
Appointment of a Secretary to the Tribunal and the Risk of a 'Fourth Arbitrator'	p. 265
Arbitrators' Fees and Expenses	p. 266
Preliminary Steps Taken by the Tribunal When Constituted: Procedural Timetable and 'Terms of Reference'	p. 269
Time Limits for the Completion of the Arbitration	p. 274
Bifurcation (or Early Disposal of Discrete Issues by the Tribunal)	p. 276
Fast-Track or Expedited Arbitration	p. 277
Urgent or Provisional Measures	p. 280
Written Submissions and Evidence	p. 284
Written Submissions	p. 285
Written Evidence	p. 288
Contemporaneous Documents	p. 289
Witnesses and Experts	p. 298
Witnesses of Fact	p. 298
Expert Witnesses	p. 301
Tribunal-Appointed Experts	p. 305
Court-Appointed Experts	p. 307
Inspection of Goods or a Site	p. 307
The Hearing Phase	p. 307
The Hearing	p. 308
Post-hearing Submissions	p. 314
The Award Phase	p. 316
Deliberations	p. 316
The Award	p. 318
Correction, Interpretation or Revision of the Award	p. 325
Effects of the Award	p. 325
After the Arbitration: Challenge, Recognition and Enforcement of the Award	p. 327
Challenging International Arbitral Awards	p. 328
Types of Challenge	p. 329
Procedure for an Action to Set Aside	p. 332
Grounds for an Action to Set Aside	p. 335
Effects of the Setting Aside of an Award	p. 341
Recognition and Enforcement of International Arbitral Awards	p. 342
Negotiation and Settlement of International Arbitral Awards	p. 343
Recognition versus Enforcement of Foreign Arbitral Awards	p. 345
The Legal Framework for Recognition and Enforcement of International Arbitral Awards	p. 346
Treaties Concerning Enforcement of International Arbitral Awards	p. 346
National Laws on Enforcement of Arbitral Awards	p. 348
Administrative Steps before Enforcement Proceedings	p. 349
Procedure for Enforcement and Resisting Enforcement	p. 353
Grounds for Resisting Enforcement	p. 354
Enforcement of Awards set Aside at the Seat of Arbitration	p. 355
Sovereign Immunity as a Defence to Enforcement	p. 359
Effects of a Refusal to Enforce or Recognise an Award	p. 360
Enforcement in Practice	p. 361
ICSID and Investment Treaty Arbitration	p. 367
Investment Treaty Arbitration	p. 370
Which Investors and Investments are Protected by Investment Treaties?	p. 373
Investors	p. 373
Investments	p. 375
What Protections are Offered to Investments Covered by Investment Treaties?	p. 376
The Availability of Arbitration to Enforce Treaty Protections	p. 381
Types of Conduct for which Parties have sought Redress in Arbitration under Investment Treaties	p. 382
Enhancing Investment Treaty Protection when Planning Foreign Business Activities	p. 385
ICSID Arbitration	p. 387
Glossary of International Arbitration Terms and Abbreviations	p. 397
Caseload of Selected Arbitral Institutions	p. 405
List of Selected International Arbitration and Mediation Institutions, Rules, Laws, Conventions and Other Instruments	p. 407
Model Clauses for Institutional Arbitration	p. 413
Model Clause for Ad Hoc Arbitration	p. 415
Model Early Case Assessment (ECA) Template	p. 417
Suggested Model Request for Arbitration for ICC Arbitration	p. 419
Model Answer to Request for Arbitration [and Counterclaim] for ICC Arbitration	p. 425
Suggested Model Terms of Reference for ICC Arbitration	p. 431
Suggested Model Provisional Timetable for ICC Arbitration	p. 437
Suggested Model Request to Produce Documents for ICC Arbitration	p. 441
Suggested Model Privilege Log for ICC Arbitration	p. 445
Suggested Model 'Redfern Schedule' for ICC Arbitration	p. 447
Bibliography	p. 449
Netherlands Model Bilateral Investment Treaty	p. 463
US Model BIT	p. 471
Index	p. 507
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