PRACTICE PERSPECTIVES: InTERnATIonAl ARbITRATIon And lITIgATIon In - PDF document

PRACTICE PERSPECTIVES: InTERnATIonAl ARbITRATIon And lITIgATIon In THIS ISSUE Arbitration: Rapid, Inexpensive Resolution of International disputes Arbitration and Civil litigation in the People’s Republic of China International litigation Under the Alien Tort Statute Singapore: A World-Class Forum for International Arbitration

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3 judgments are a patchwork of bilateral and multilateral agreements, with many gaps. B Y M I C H A E l B ü H l E r , PA r I S O F F I C E RESolUTIon oF InTERnATIonAl dISPUTES ARbITRATIon: RAPId, InExPEnSIVE court—in particular, the fees and expenses of the arbitrators. ties in an arbitration must pay certain costs that would not arise in litigation before a Arbitration may have drawbacks in the eyes of some parties. For example, the par­ New York Convention. At present, 134 countries are parties to the Convention. In contrast, international arbitral awards may be enforced, inter alia, under the 1958 States is not a party to any such treaty. Enforcement of Judgments in Civil and Commercial Matters. However, the United court judgments, concluding the 1968 Brussels Convention on Jurisdiction and the Certain European countries have gone far in granting enforcement of each other’s international enforcement procedures. The laws governing the enforcement of court It is important in any international project to ensure that the relevant contracts One of the most important advantages of arbitration, compared to litigation, lies in they will be an international panel. vis­à­vis the parties. The arbitrators will not be the national judges of one of the parties; contrast, international arbitrations are generally conducted in a country that is neutral pendence if one of the parties in the litigation is the government or a state entity. In may favor the local party. A national court may lack or appear to lack complete inde­ national project. The foreign litigant will fear (perhaps justifiably) that a national court Arbitration has certain distinct advantages over litigation, especially in an inter­ resolution of disputes by arbitration. matter and the parties. Generally, however, the parties will prefer to agree upon the disputes may be heard and settled by any national court having jurisdiction over the in court or arbitration? In the absence of any contrary agreement by the parties, their include provisions for the resolution of dispute. The fundamental choice is—litigation Illustrations: Bruce Sereta

4 settling disputes has led to the development of many forms to the parties the terms of a settlement. The ICC has recently mediator’s mission may include formulating and presenting pute to arrive at a negotiated settlement of their dispute. The neutral third party acts as a facilitator to assist parties in dis­ Mediation . Mediation is a settlement technique in which a forms of ADr are the following: of alternative dispute resolution (“ADr”). Among the leading The desire to find quicker and more cost­effective ways of Mini-Trial . A mini­trial is an informal procedure in which the FoRmS oF AdR not applied in arbitration. evidence, such as the common law’s hearsay rule, are generally but not all civil law courts), but rules that would exclude or not—may testify as a witness (as in common law courts, cross­examination of witnesses. Any person—whether a party with the common law practice of permitting examination and promulgated new ADr rules. two parties to a dispute present elements of their case and civil law systems. For example, the civil law practice of may constitute a dispute review board, which will hear dis­ frontational than litigation or arbitration, and so may facilitate atively inexpensive resolution of disputes. They are less con­ These and other ADr techniques can promote rapid and rel­ within a specified period of time. be binding upon the parties unless challenged in arbitration established to review disputes and render decisions that will accept. Alternatively, a dispute adjudication board may be putes and give an opinion that the parties may (or may not) or panel of experts for an opinion or decision. The parties (documents and oral arguments) in a hearing before a matter, the parties may wish to refer the matter to an expert Expert Determination . When a dispute concerns a technical prospects in a real trial or arbitration. mini­trial is meant to give the parties a realistic idea of their indicating how a court or tribunal might decide the case. The two days. The neutral adviser then gives a preliminary opinion, neutral adviser (often a retired judge) that may last one or exchanging written submissions and documents is combined rules of evidence that draw elements from the common law TyPES oF ARbITRATIon Arbitration Association (“AAA”), and the International Centre institution generally justify this additional cost. The institution institution’s administrative fees, the services provided by the While the parties in an institutional arbitration must pay the International Trade law (“UNCITrAl”). Arbitration rules of the United Nations Commission for that opt for an ad hoc arbitration often agree to follow the for the Settlement of Investment Disputes (“ICSID”). Parties Court of International Arbitration (“lCIA”), the American The arbitrators’ fees are determined by the institution, thus International Chamber of Commerce (“ICC”), the london tions under rules that they have developed, include the Well­known arbitral institutions, which administer arbitra­ Commercial arbitration may be “institutional” or “ad hoc.” mine what type of arbitration they wish to select. to settle their disputes. However, the parties must also deter­ parties in an international project to agree upon arbitration The factors that have been reviewed above generally lead will appoint an arbitrator if a party fails or refuses to do so. relieving the parties of direct contact with the arbitrators on and the lawyers appearing before them have developed Discovery. Parties from different countries may find that Rules of Evidence. In practice, international arbitral tribunals whether to address the issue in their arbitration clause. disputes arising over discovery in an arbitration and consider civil law countries. Parties should anticipate the possibility of procedures are much more extensive than those available in the production of documents, etc. Common law discovery they have very different expectations regarding discovery, reciprocal basis. this delicate subject. because some countries apply the Convention only on a select a country that is a party to the New York Convention, of arbitration in the contract. Generally, it is advisable to Place of Arbitration. It is advisable to stipulate the place could arise in an eventual arbitration: Parties negotiating contracts should consider issues that ISSUES To ConSIdER continued on page 11