تسوية وسائل تقديم Presentation المنازعاتof dispute settlement

means

Amicable means and judicial means

Distinction between amicable means and judicial or binding means

ADR : Alternative Disputes ResolutionNon binding means : negociation, mediation and

conciliationBinding: resort to state courts, and Arbitration

Type of dispute Disputes between state-investorDisputes between investors: private

disputes Disputes between state-state

Amicable meansDistinction between means that require the

intervention of third party means that don’t require such intervention

Negocitation (Party to Party)Conciliation (Third Party mean)Mediation ( third party mean)

Advantages of amicable meansThe parties control the proceedingsFlexibilitynon-compliance with certain procedures Friendly atmosphereEconomy in expenditure

Disadvantages

- Does not end with binding solution - In the event of failure to return to the

starting point and the loss of time

Negociationdirect contact between the parties: FlexibilityNeed cooperation and good faith to find a

solution to the conflict

Mediation Needs the intervention of neutral third

party to assist the parties in resolving the dispute and to negotiate an acceptable solution

The role of mediatorQualities requires Example

Conciliation Distinction with mediationRole of conciliatorThe conciliator propose a solution to the

disputing parties

Non binding means with an international institution ICC ADR rulesICSID rules of conciliationThe Cairo Mediation and ADR Centre was

established as a branch of the Cairo Regional Centre for International Commercial Arbitration to administer mediation and other peaceful non-binding means of avoiding and settling trade and investment disputes. The Centre shall also administer conciliation under its auspices according to the Rules of Conciliation issued in 1980 by the United Nations Commission on International Trade Law (UNCITRAL).

Ad hoc ADR1980 - UNCITRAL Conciliation Rules

2002 - UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and use

1980 - UNCITRAL Conciliation RulesAdopted by UNCITRAL on 23 July 1980, the UNCITRAL

Conciliation Rules provide a comprehensive set of procedural rules upon which parties may agree for the conduct of conciliation proceedings arising out of their commercial relationship. The Rules cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and role of conciliators and the general conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of evidence in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings whilst the conciliation is in progress. 

2002 - UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and use

Adopted by UNCITRAL on 24 June 2002, the Model Law provides uniform rules in respect of the conciliation process to encourage the use of conciliation and ensure greater predictability and certainty in its use. To avoid uncertainty resulting from an absence of statutory provisions, the Model Law addresses procedural aspects of conciliation, including appointment of conciliators, commencement and termination of conciliation, conduct of the conciliation, communication between the conciliator and other parties, confidentiality and admissibility of evidence in other proceedings as well as post-conciliation issues, such as the conciliator acting as arbitrator and enforceability of settlement agreements.

Domestic courts Which court? Examples

Advantages and disadvantages Proximity with the dispute Enforceability of the decision

• Time ?• Expertise?• Neutrality ?

The arab investment court JurisdictionCompositionDecision

Arbitration Defition of arbitration Necessity of consentThe binding character of the decision

rendred by the arbitrator

1st advantage : confidentality Why confidentility? Importance of confidentiliaty in the

business worldExceptions to confidentiality in some cases

2nd advantages : rapidity Expertise of the arbitratorAvailability of the arbitratorLack of formal proceedings

3d advantages : efficiency and impartiality of the arbitrator The importance of impartiality

4th advantages : enforceability It is easier to enforce an arbitral award

more that a domestic decision: the existence of an international convention that uniforms the conditions and the proceedings of exequatur of arbitral decision

Disadvantages of arbitration

Cost and expenses Arbitrator must be paid Ideas about the cost of arbitration Comparaison between ad hoc arbitration

and institutional arbitration Cost of lawyerCost of the institution that administers the

arbitration

Cultural challenges lack of knowledge of some arbitrator of

culture and law of the national systems: arbitrator are judge of the globalization

National context : everyone, or at least counsel the parties and the judges are talking, as a general rule, a common legal language

Execution The arbitral award is binding However it is not sel executingIf there is no voluntarily execution, resort

to domestic court is necessary

Combined clauses Mediation-arbitration clauseNegotiation arbitration clauseWhat’s happened if one party bring directly

the arbitral action without submitting its claims to mediation?

Exercise Here are some pathological arbitration, correct

themClause 1 : “If the dispute is not resolved between

the parties, they have firstly to use an amicable means. If they failed, every party can referred the matter to arbitration”

Clause 2: “every disputes relating to the execution of this contract could be referred to arbitration

Clause 3 “ disputes relating to this agreement may be submitted to arbitration

Clause 4 : “disputes relating to this agreement could be submitted to arbitration if there is a mutual agreement”

Exercise : case Mr Ali concluded a construction contract

with a constructor to build a villa in XXX . The contract contain the following clause : “Contracting parties agreed to resolve the legal conflicts through the judiciary, and the differences are technical conflict through arbitration”. What do you think of Mr. Ali Contract?

Conclusions : advises when drafting arbitration clause Think carefully about whether international

arbitration fit well with your needs while negotiating a dispute resolution clause included in your contract

Make sure that the resolution clause be the broadest possible, and defines the law as well as the seat of arbitration

Make a choice : ad hoc or institutional arbitration

Think about waivers to appeal or annulment in advance in your contract

Think if you need a "multiple steps”clause