international arbitration: the view from europe a presentation by hew r. dundas chartered arbitrator...
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INTERNATIONAL ARBITRATION:THE VIEW FROM EUROPE
a presentation by
HEW R. DUNDASChartered Arbitrator DipICArb
International Arbitrator & Mediator
President CIArbto the
Cámara Nacional de Comercio
de La Paz18th July 2007
OVERVIEW of PRESENTATION
Introduction Dispute Resolution Clauses & Options International Commercial Arbitration Codes of Conduct for Arbitrators Alternative Dispute Resolution (ADR) Conclusions
DISPUTE RESOLUTION OPTIONS
Litigation Arbitration
Domestic
International
ADRMediation/Conciliation
Other ADR
Advantages and Disadvantages
LITIGATION
Difficulties of Litigating Local Laws – are they adequate ? Courts – Good, Bad and Ugly 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 (4) ARBITRATION INSTITUTIONS
United Nations - UNCITRAL Established by Treaty between States
ICSID [CIADI]NAFTA/ECT
Private International InstitutionsICC/LCIA
National Institutions eg CAC/CIETAC/AAA Chartered Institute of Arbitrators Other
INTL. COMM. ARBITRATION (5) PROCEEDINGS (1)
Ad Hoc vs Institutional Arbitration Party Autonomy; parties can choose
Lex ArbitriInstitutionRules/ProcedureTribunalSeatLanguageOther Details
INTL. COMM. ARBITRATION (6) PROCEEDINGS (2)
Common vs Civil Law Cultures Communications Disclosure Standards of Conduct by Arbitrators
Ethics Tribunal Issues
INTL. COMM. ARBITRATION (7)AWARD & ENFORCEMENT
Appeals Against AwardJurisdictionProcedural FailuresIssues of Law [very few countries]
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
INTL. COMM. ARBITRATION (3)SOME KEY LEGAL ISSUES
Capacity to sign Arbitration Agreement Arbitrability Substantive/Procedural Laws Arbitrations against States
State Immunity Enforceability Public Policy Exception (NYC V(2)(b))
INVESTMENT ARBITRATION
Private Investor vs State/State Entity Nature of Arbitration Agreement BITs/MITs Washington Convention/ICSID [CIADI] NAFTA Energy Charter Treaty State Immunity
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 Mediation/Conciliation Med-Arb, Arb-Med 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)
Respect for the Rule Of Law Arbitration and ADR are Fundamental Growth and Development of National &
Regional Centres Maximise Co-Operation Increasing Normalisation of Standards Role of Cámara/Colegio Role of CIArb