INTERNATIONAL ARBITRATION:AN ENGLISH PERSPECTIVE

a presentation by

HEW R. DUNDASChartered Arbitrator DipICArb

International Arbitrator & Mediator

President CIArbto the

Centro de Arbitraje de la

Cámara de Comercio de Bogotá13th July 2007

OVERVIEW of PRESENTATION

Introduction Dispute Resolution Clauses & Options Domestic/International Disputes International Commercial Arbitration Arbitration in England Conclusions

DISPUTE RESOLUTION OPTIONS

Litigation Arbitration Domestic/International Mediation/Conciliation/Other ADR Application in Oil & Gas Industry Advantages and Disadvantages

LITIGATION

Difficulties of Litigating Local Laws – are they adequate ? Courts – Good, Bad and Ugly Litigation against States Timescales - long and VERY long Finality Enforceability Costs

INTERNATIONAL COMMERCIAL ARBITRATION (1) - OVERVIEW

What Is It ? Profusion of Relevant/Applicable Laws Institutions and Tribunals Finality Enforceability Normalisation of Standards

INTL. COMM. ARBITRATION (2)PROFUSION of LAWS

Law of the Contract Law of the Arbitration Agreement Law of the Arbitration (Lex Arbitri) Law governing Capacity of Parties Law of Seat (Lex Curiae) Law of Place of Enforcement Other Potentially Applicable Laws

INTL. COMM. ARBITRATION (3)SOME KEY LEGAL ISSUES

Arbitrability Capacity Substantive vs Procedural Laws Arbitrations against States/State

Immunity Enforceability Public Policy Exception (NYC V(2)(b)) Protectionism

INTL. COMM. ARBITRATION (4) INSTITUTIONS

UNCITRAL ICSID/NAFTA/ECT ICC/LCIA CIAM Other Regional Institutions eg CIETAC/AAA Chartered Institute of Arbitrators Other

INTL. COMM. ARBITRATION (5) PROCEEDINGS (1)

Party Autonomy Ad Hoc vs Institutional Arbitration Choice of Lex Arbitri Choice of Rules/Institution Choice of Tribunal Choice of Seat Relevance to Security

INTL. COMM. ARBITRATION (6) PROCEEDINGS (2)

Choice of Language + Procedure Common vs Civil Law Cultures Communications Disclosure Ethics Tribunal Issues Relevance to Security

INTL. COMM. ARBITRATION (7)AWARD & ENFORCEMENT

Appeals Against AwardJurisdictionProcedural FailuresIssues of Law

Exequatur Enforcement New York Convention 1958

INTL. COMM. ARBITRATION (8)NEW YORK CONVENTION

Recognition of Arbitration Agreements Enforcement via NYC58; Court may refuse

Art. V(1)Capacity/InvalidityFailure of Due Process/other Procedural FailureOutwith JurisdictionAward Not Binding/Set Aside at seat

Art. V(2)Dispute not ArbitrableAward Contrary to Public Policy

Court MAY, not “shall”, refuse enforcement Enforcement other than via NYC58

INVESTMENT ARBITRATION

Private Investor vs State/State Entity Nature of Arbitration Agreement BITs/MITs Washington Convention/ICSID NAFTA Energy Charter Treaty State Immunity

ARBITRATION in ENGLAND (1)

Historical Origins Arbitration Acts 1889/1934/1950/1979 Arbitration Act 1996 Public Policy London as The International Centre

LMAA/GAFTA etc The Role of the Courts

HistoricallyThe Present

ARBITRATION in ENGLAND (2):the ARBITRATION ACT 1996

Why a New Act ? The Fundamental Principles

Impartial TribunalAvoid Unnecessary Delay or ExpenseParty AutonomyMinimal Interference by the Courts

Public Policy Safeguard Act covers All Aspects of Proceedings

Is Self-Contained eg is Set of Rules

ARBITRATION in ENGLAND (3): APPEALS AGAINST AWARDS

Grounds for AppealJurisdictionProcedural FailuresIssues of Law

Key Decisions Made in High Court Judicial Comment on Appeals

“Utterly Hopeless” or “No Merit” etc Success Rate for Appeals Ecuador v Occidental

CIArb CODE of CONDUCT (1)

CIArb is Self-Regulating Professional Institute

CIArb “Code of Professional And Ethical Conduct for Members” [January 2007]

Binding on All CIArb MembersArbitrators/Mediators/Any Other

Breach of Code is Professional Misconduct Full Disciplinary Process

CIArb CODE of CONDUCT (2)

Avoid Conduct Unbecoming Uphold Integrity & Fairness of the Process Disclosure of Potential Conflicts

Failure to Disclose may lead to disqualification. Arbitrator to Accept Appointment Only If:

Suitable Experience and AbilityAvailable time to proceed with the arbitration

Can Publicise Qualifications ExperienceNo Advertising

CIArb CODE of CONDUCT (3)

Overriding obligation to act fairly and impartially as between the parties, at all stages of the proceedings

No Delegation of Responsibilities Observe Trust and Confidentiality No Private Communications Arbitrator/Party

– Includes telephone Integrity Regarding Fees/Expenses

Fees and Expenses must be Reasonable

CIArb GOOD PRACTICE GUIDELINES

“Good”, not necessarily “Best”, Practice Assistance for Arbitrators >1,000 Man-Years of Experience Origins in English Arbitration Act 1996 Now Internationalised Covers practical issues not covered by

Statute Quasi-Regulatory Effect

CURRENT ISSUES AFFECTING CONDUCT

Arbitrator Interviews Non-Qualified Arbitrators Non-Professional Arbitrators Tribunal Dynamics Cultural Differences Arbitrators Appointed by States “The Club”

ALTERNATIVE DISPUTERESOLUTION (1) - OVERVIEW

What is ADR ? Why ADR ? Relationship with Courts Compulsory or Voluntary ? Court Support of:

The ProcessThe Outcome

Qualifications and Training

ADR (2) – FORMS of ADR

Executive Negotiation Early Neutral Evaluation (ENE) Private Mini-Trials Adjudication, DABs DRBs Mediation/Conciliation Med-Arb, Arb-Med, MedExDet Arbitrediation Other/None of the Above

DISPUTE PREVENTION &DISPUTE MANAGEMENT

PreventionCorporate CultureCo-Operation – what do YOU WantConciliatory ApproachLocal Customs/Culture/Mores

ManagementDedicated Task ForceExpertise – technical/litigatorDecision-making

CONCLUSIONS (1)

Arbitration and ADR are Fundamental Respect for the Rule Of Law Growth and Development of National &

Regional Centres Maximise Co-Operation Increasing Normalisation of Standards Role of Chambers/Colegios Role of CIArb

CONCLUSIONS (2)

Muchas Gracias for

your ATTENTION

this afternoon