ISBN-10:
9041126104
ISBN-13:
9789041126108
Pub. Date:
02/22/2010
Publisher:
Wolters Kluwer Law & Business
International Arbitration and Mediation: A Practical Guide

International Arbitration and Mediation: A Practical Guide

by Michael McIlwrath, John Savage

Hardcover

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Overview

Optimizing the outcome of disputes connected with international business forms the subject matter of this book. Rather than adopt an idealized approach of pursuing victories at any cost, the authors help parties predict the realistic consequences (and costs) of their decisions and provide a step-by-step guide to opportunities to influence the course of a dispute as it unfolds in its various stages. They discuss techniques for productively resolving disputes through negotiation, mediation, and arbitration, frequently illustrating critical steps through real-world examples drawn from past experiences.

The book is intended as an easily accessible desktop resource for lawyers who regularly counsel businesses when negotiating international deals, and for those who represent the same clients in achieving a successful resolution when disputes emerge.

The text is divided into chapters that follow the life cycle of an international commercial dispute as seen through the eyes of the parties, from when they agree how to resolve disputes in their contracts to the endgame of enforcement. Additionally, the appendices include a number of model submissions for further reference.

The practical guidance includes:

How to determine which dispute resolution clauses work best for different international contracts, and how to negotiate those clauses;

What preliminary steps parties should consider to preserve their rights when a dispute arises;

Whether and how to appoint counsel;

When and how to perform an early case assessment (ECA);

How to organize and conduct international mediations and arbitration proceedings;

How to enforce (or set aside) arbitral awards; and

Securing the benefit of additional protections available through investment treaties.

Product Details

ISBN-13: 9789041126108
Publisher: Wolters Kluwer Law & Business
Publication date: 02/22/2010
Pages: 528
Sales rank: 966,338
Product dimensions: 6.20(w) x 9.70(h) x 1.30(d)

Table of Contents

Introduction 1

I Organisation of This Book 4

II International Arbitration 5

III International Mediation 8

IV International Mediation and Arbitration as Risk Mitigators 10

Chapter 1 The Elements of an International Dispute Resolution Agreement 11

I Different Sorts of International Dispute Resolution Clauses 12

II The Basic Components of an International Dispute Resolution Agreement 14

A The Core of the Arbitration Agreement: Submission of Disputes to Arbitration 15

B Referral to Arbitration 18

C The Four Main Variables of an International Arbitration Clause 20

1 The Place (or 'Seat') of Arbitration 21

a Place of Arbitration and Procedural Law 23

b Place of Arbitration and the Courts 27

c Place of Arbitration and Enforceability of Awards 32

d Good and Bad Places of Arbitration 33

2 Institutions that Administer Arbitration and Mediation and Their Rules 36

a Nature and Role of Arbitral Institutions 36

b Which Arbitral Institution to Choose? 39

i International Chamber of Commerce (ICC) 39

ii International Centre for Dispute Resolution (ICDR) 45

iii London Court of International Arbitration (LCIA) 47

iv Singapore International Arbitration Centre (SIAC) 49

v International Centre for Settlement of Investment Disputes (ICSID) 51

vi Regional Institutions 53

vii National Institutions 55

3 Ad Hoc Arbitration 62

4 Number of Arbitrators 68

5 Language of the Arbitration 70

D 'Bells and Whistles' 72

1 Joinder and Consolidation 73

2 Requiring Negotiation Prior to Arbitration 77

3 ICC Pre-Arbitral Referee Procedure 78

4 Arbitrator Qualifications 79

5 Procedure and Evidence 80

6 Allocation of Costs 80

7 Time Limits for Award 81

8 Baseball Arbitration 81

9 Waiver of Sovereign Immunity 82

E Conclusion on Elements of an Arbitration Clause 83

III Agreements to Mediate before Arbitration 84

A The Elements of a Mediation Step Clause 85

B Mediation Institutions 88

Chapter 2 Negotiating an International Dispute Resolution Agreement 93

I Attempting to Avoid Negotiation: 'Standard' Dispute Clauses 94

II Negotiating the Dispute Clause on the Basis of Common Dispute Resolution Values 95

A Answering Objections to Using Arbitration (Rather than the Courts) 96

1 Arbitration or Litigation: Which Is Better? 97

2 Strategies to Address Resistance to Arbitration 103

B Answering Objections to Institutional Arbitration 106

C Answering the Insistence on Arbitration in a Country Without a Reliable Court System 107

III Mitigating, Quantifying, and Accepting the Risks of Disadvantageous or Imperfect Dispute Resolution 110

IV Spotting the Real Deal-Breakers 113

Chapter 3 When the Dispute Arises 117

I Preliminaries Once Litigation is Probable 118

A Contractual Pre-arbitration Procedures 119

B Letters Before Action and Preliminary Correspondence 121

C Privilege and New Document Creation 123

D Key Employees and Witnesses 124

E Documents 125

F Insurance Notifications 129

G Media 130

II The Decision Whether to Submit or Respond to a Request for Arbitration 132

A Claimant or Respondent? 132

B Alternatives to Commencing Arbitration, or to be Carried Out in Conjunction with Starting Arbitration 132

C Amending the Dispute Resolution Clause 133

D Considering and Proposing Informal Resolution Options 133

III Using Early Evaluation to Quantify the Entire Dispute Risk 134

A The Nature of an Early Case Assessment (ECA): Predicting the Ultimate Outcome arid the Cost of Getting There 135

B Gathering Evidence and Assessing the Facts 139

C Assessing the Legal Merits 144

D Potential Implications of an ECA on Balance Sheet Accounting (Financial Reserves of Disputes) 144

E Estimating the Total Cost of the Arbitration and Factors Influencing Costs 146

IV Engaging and Disengaging Counsel 154

A 'In-sourcing' Arbitration Work 154

B Retaining External Counsel 156

C Estimating, Budgeting, and Managing Costs of External Counsel 165

D Disengaging and Replacing External Counsel 170

Chapter 4 International Settlement Negotiation and Mediation 173

I Optimising the Settlement Process 176

A Settlement Goals that Leverage the Uncertainties of a Dispute 177

B Selling the Idea of Mediation 180

1 Proposing Mediation to the Other Side(s) 182

2 Arb-Med: Combining Mediation and Arbitration 185

II Finding an International Mediator and Organising the Mediation 187

A Agreeing on When and Where 187

B Finding the Right Mediator for the Parties and the Dispute 188

1 Traditional Sources of Information about Potential Mediators 189

2 Mediation and Arbitration Institutions 191

3 Emerging Information Sources: Certification, Directories, and Blogs 192

4 Important Criteria for Identifying a Suitable Mediator 194

C Mediator Fees 201

D Affirming the Confidentiality of the Mediation 205

E Mediation Logistics 207

F Scheduling Considerations in Delaying or Deferring the Arbitration or Other Binding Dispute Resolution Pending Mediation 208

III Mediation Advocacy 208

A Procedural Flexibility of Mediation 209

1 Preparation and Advocacy before the Mediation Begins: Obtaining Settlement Authority and Defining Settlement Objectives 210

2 Position Papers and 'For Mediator's Eyes Only' Memoranda 216

3 Strategic Use of Opening Offers and Counteroffers 217

4 Advocacy at the Plenary Session 218

5 Effective Advocacy during Caucusing Sessions 220

6 Establishing Direct Contact with the Other Side 221

7 Documenting the Settlement 222

8 Concluding without Settlement but Leaving the Door Open 223

B Common Pitfalls for Advocates in a Mediation 224

Chapter 5 The Conduct of the Arbitration 225

I The Preliminary Phase 227

A Commencing the Arbitration: The Request for Arbitration 227

B Other Initial Written Submissions: Answer and Reply 236

C Default Proceedings: When a Party Does Not Participate in the Arbitration 238

D Early Disposal for Lack of Jurisdiction 241

E Appointment of Arbitrators 245

1 Drawing up a Shortlist: Obtaining Information about Arbitrator Performance 253

2 Approaching the Candidates 255

3 Interviewing Arbitrator Candidates and Further Due Diligence 255

4 Evaluation and Decision 257

5 Selection of Sole Arbitrator or Chair by Agreement of Parties or Co-arbitrators 257

F Challenge, Removal, and Replacement of Arbitrators 260

G Appointment of a Secretary to the Tribunal and the Risk of a 'Fourth Arbitrator' 265

H Arbitrators' Fees and Expenses 266

I Preliminary Steps Taken by the Tribunal When Constituted: Procedural Timetable and 'Terms of Reference' 269

J Time Limits for the Completion of the Arbitration 274

K Bifurcation (or Early Disposal of Discrete Issues by the Tribunal) 276

L Fast-Track or Expedited Arbitration 277

M Urgent or Provisional Measures 280

II Written Submissions and Evidence 284

A Written Submissions 285

B Written Evidence 288

1 Contemporaneous Documents 289

2 Witnesses and Experts 298

a Witnesses of Fact 298

b Expert Witnesses 301

c Tribunal-Appointed Experts 305

d Court-Appointed Experts 307

3 Inspection of Goods or a Site 307

III The Hearing Phase 307

A The Hearing 308

B Post-hearing Submissions 314

IV The Award Phase 316

A Deliberations 316

B The Award 318

C Correction, Interpretation or Revision of the Award 325

D Effects of the Award 325

Chapter 6 After the Arbitration: Challenge, Recognition and Enforcement of the Award 327

I Challenging International Arbitral Awards 328

A Types of Challenge 329

B Procedure for an Action to Set Aside 332

C Grounds for an Action to Set Aside 335

D Effects of the Setting Aside of an Award 341

II Recognition and Enforcement of International Arbitral Awards 342

A Negotiation and Settlement of International Arbitral Awards 343

B Recognition versus Enforcement of Foreign Arbitral Awards 345

C The Legal Framework for Recognition and Enforcement of International Arbitral Awards 346

1 Treaties Concerning Enforcement of International Arbitral Awards 346

2 National Laws on Enforcement of Arbitral Awards 348

D Administrative Steps before Enforcement Proceedings 349

E Procedure for Enforcement and Resisting Enforcement 353

F Grounds for Resisting Enforcement 354

G Enforcement of Awards set Aside at the Seat of Arbitration 355

H Sovereign Immunity as a Defence to Enforcement 359

I Effects of a Refusal to Enforce or Recognise an Award 360

J Enforcement in Practice 361

Chapter 7 ICSID and Investment Treaty Arbitration 367

I Investment Treaty Arbitration 370

A Which Investors and Investments are Protected by Investment Treaties? 373

1 Investors 373

2 Investments 375

B What Protections are Offered to Investments Covered by Investment Treaties? 376

C The Availability of Arbitration to Enforce Treaty Protections 381

D Types of Conduct for which Parties have sought Redress in Arbitration under Investment Treaties 382

E Enhancing Investment Treaty Protection when Planning Foreign Business Activities 385

II ICSID Arbitration 387

Appendix 1 Glossary of International Arbitration Terms and Abbreviations 397

Appendix 2 Caseload of Selected Arbitral Institutions 405

Appendix 3 List of Selected International Arbitration and Mediation Institutions, Rules, Laws, Conventions and Other Instruments 407

Appendix 4 Model Clauses for Institutional Arbitration 413

Appendix 5 Model Clause for Ad Hoc Arbitration 415

Appendix 6 Model Early Case Assessment (ECA) Template 417

Appendix 7 Suggested Model Request for Arbitration for ICC Arbitration 419

Appendix 8 Model Answer to Request for Arbitration [and Counterclaim] for ICC Arbitration 425

Appendix 9 Suggested Model Terms of Reference for ICC Arbitration 431

Appendix 10 Suggested Model Provisional Timetable for ICC Arbitration 437

Appendix 11 Suggested Model Request to Produce Documents for ICC Arbitration 441

Appendix 12 Suggested Model Privilege Log for ICC Arbitration 445

Appendix 13 Suggested Model 'Redfern Schedule' for ICC Arbitration 447

Appendix 14 Bibliography 449

Appendix 15 Netherlands Model Bilateral Investment Treaty 463

Appendix 16 US Model BIT 471

Index 507

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