Table of Contents - Wolters Kluwer ?· Information Game – ‘Best Alternative to a Negotiated Agreement’…

Download Table of Contents - Wolters Kluwer ?· Information Game – ‘Best Alternative to a Negotiated Agreement’…

Post on 24-Mar-2019




0 download

Embed Size (px)


<p>Table of Contents</p> <p>Preface to the Third Edition xiii</p> <p>Preface to the First Edition xv</p> <p>Acknowledgements xix</p> <p>Users Guide xxiii</p> <p>PART ONEInternational Business Negotiations 1</p> <p>1ST SCENARIOInternational Business Contracts 3Contract Conclusion in International Business Offer and Acceptance Invitation to Offer Confirmation of Order Standard Terms Battle of Forms Involvement of Lawyers in Contract Negotiations Pro-Active Conflict Management</p> <p>2ND SCENARIOThe Dispute 7Conflict Theory Types of Disputes Language and Culture The HumanFactor Difference between Dispute and Conflict Legal Disputes International Business Disputes Zero-Sum Thinking Escalation ofDisputes Dispute Resolution Processes ADR Conflict Manager DIS Conflict Management Rules Dispute Avoidance RenegotiationClauses Hardship and Renegotiation of Contracts Dispute Review Boards</p> <p>v</p> <p>3RD SCENARIODeveloping Strategies 11Control of Negotiation Venue Schedule and Agenda Negotiation asInformation Game Best Alternative to a Negotiated Agreement (BATNA) Reservation Price Zone of Possible Agreement (ZOPA) NegotiatorsDilemma Bargaining Tactics Bargaining Power Telephone Negotiations Significance of Face-to-Face Meetings</p> <p>4TH SCENARIOThe Negotiations in The Hague: Morning Session 15Meaning of Negotiations Strategy and Tactics Skills and Stiles NegotiationTheory Distributive Negotiations Integrative Negotiations PrincipledNegotiations Lawyers Perspective of Disputes No-Negotiation Style Use ofBluffs and Threats Take-it-or-Leave-it Offers Use of Apologies LawyersAdversarial Approach to Negotiations Negotiation Table as Quasi-Courtroom</p> <p>5TH SCENARIOThe Negotiations in The Hague: Afternoon Session 19Positional Bargaining Arab Bazaar Mutt and Jeff Tactics The Six Phasesof a Negotiation Deal-Making Negotiations Dispute Settlement Negotiations Emotions in Negotiations Change from Competitive to Integrative BargainingStyle</p> <p>PART TWOInternational Business Mediation 25</p> <p>6TH SCENARIOThe Proposal to Mediate (Getting to the Table) 27Pro-Active Dispute Resolution Planning Corporate ADR-Pledge Definition ofMediation Origins and Characteristics of Mediation The PartiesDecision-Making Power and Self-Responsibility The Mediators Role Significance of Involvement of Top-Management Enforceability of ADRAgreements Role of Lawyers in Mediation Qualifications of Mediators Institution and Ad Hoc Mediation Appointment of Mediators Neutrality ofthe Mediator Pre-Mediation Communication between Mediator and Parties Legal Significance of Choice of Venue Significance of Contextual Factors</p> <p>7TH SCENARIOThe Mediation Phase 1: The Mediators Opening Statement andConclusion of the Negotiation Agreement 33Fairness of the Mediation Rapport between Mediator and Parties Role ofLawyers in Mediation The Five Phases of a Mediation NegotiationAgreement Mediators Contract Mediation Privilege (Confidentiality) TheParties Self-Responsibility</p> <p>Table of Contents</p> <p>vi</p> <p>8TH SCENARIOThe Mediation Phase 2: The Parties Opening Statements 37Opening Statements by the Parties Non-Adversarial Nature of Mediation Mediator as Guardian of the Principle of Self-Determination Application ofNeutral Decision-Making Principles</p> <p>9TH SCENARIOThe Mediation Phase 2: Identifying Issues and Interests 41Drafting an Agenda for the Negotiations Unveiling Issues and DiscussionTopics by the Mediator Emotions in Mediation The Mediators InterventionStrategies Active Listening Interest-Oriented Bargaining Techniques Reframing and Visualizing Issues and Interests Equal Treatment of the Parties</p> <p>10TH SCENARIOThe Mediation Phase 3: Fixing the Agenda and Gathering Information 47Building Negotiation Packages Ensuring the Openness of the NegotiationProcess Making Parties Change their Perspective of the Dispute Legal Analysisas Basis for the Parties BATNA Use of Decision-Tree Analysis Legal Analysisas Reality Testing The Mediator as Devils Advocate Making the Parties Stepinto the Shoes of the Other Side Change of Bargaining Approach ChangingAtmosphere at the Negotiation Table Lawyers Role</p> <p>11TH SCENARIOThe Mediation Phase 4: Generating Options for Settlement of theAX-100 Special Dispute (Group I Issues) and Bargaining 57Psychological Closure Emotional Satisfaction Agreement-in-PrincipleApproach to Fixing Common Vision Mediator as Catalyst of Creativity Enlarging the Cake Logrolling Facilitative, Evaluative andTransformative Mediation The Mediators Right to Propose a Settlement Envelope Procedure Use of Games of Chance Zone of Possible Agreement The Parties Self-Determination and Self-Responsibility Communication inMediation Characteristics of Negotiation and Mediation Compared</p> <p>12TH SCENARIOThe Mediation Phase 4: Restructuring the Future Business Relationshipbetween NedTrans and ALT (Group II Issues) 65Business Secrets in Mediation Caucus Sessions Shuttle Mediation Brainstorming Sessions SWOT-Analysis SMART Settlement Agreements The Mediators Right to Warn the Parties</p> <p>13TH SCENARIOThe Mediation Phase 4: Mr Jaeggis Limits of Authority 71Limits of Authority Informal Business Memorandum Formal SettlementAgreement Right to Revoke the Settlement Weakness of Package DealConcept Meaning of Success of Mediation</p> <p>Table of Contents</p> <p>vii</p> <p>14TH SCENARIOThe Mediation Phase 5: Signing of the Settlement Agreement andTermination of the Mediation 75The Parties Commitment to the Settlement Terms Symbolic ConflictTermination Activities Identification of Parties with Their Settlement Terms Signing Ceremony</p> <p>15TH SCENARIORevocation of the Settlement Agreement (From Interests to Positions) 77Frequency of Successful Mediations Strategic Mistakes of the Parties Disputes Not Apt for Mediation Mediation as Basis for Settlement Outside theCourt Room Mediation as Learning Experience for Lawyers Mediation/Arbitration Use of Mediation Window Reasons to Arbitrate Arbitration and Business Relationship Settlement in the Shadow of theArbitration</p> <p>PART THREEInternational Commercial Arbitration 81</p> <p>16TH SCENARIOThe Commencement of the Arbitration 83Definition of Arbitration Nature of Arbitration Advantages of Arbitration Best Practices Pro-Active Arbitrator Hierarchy of Rules The Role of PartyAutonomy Transnationalization of Arbitration Place (Seat) of Arbitration UNCITRAL Model Law on International Commercial Arbitration AdHoc/Institutional Arbitration German Institution of Arbitration (DIS) FastTrack Arbitration Effects of Arbitration Agreement Anti-Suit Injunctions in Aidof Arbitration Confidentiality Objective and Subjective Arbitrability LawApplicable to Parties Representation Request for Arbitration/Statementof Claim Interruption of Period of Limitation Written Advocacy inInternational Arbitration Qualifications and Skills of Party-AppointedArbitrator The Arbitrators Duty to Disclose Nomination of Arbitrator Filing of Request for Arbitration</p> <p>17TH SCENARIOThe Administration of the Statement of Claim by the German Institutionof Arbitration (DIS) 87Task and Role of Arbitral Institution Prima Facie Examination of ArbitrationAgreement New Version of Institutional Arbitration Rules Legal Consequenceof Incomplete Statement of Claim Calculation of Administration Fee andAdvance on Costs</p> <p>Table of Contents</p> <p>viii</p> <p>18TH SCENARIOThe Respondents Reaction 89Consequences of Respondents Failure to Participate in the Arbitration TacitConclusion of Arbitration Agreement through Exchange of Legal Briefs Court Control of Arbitral Jurisdiction Ex Parte Contacts between Party andNominee for Party-Appointed Arbitrator Beauty Contests</p> <p>19TH SCENARIOConstitution of the Tribunal 93Nomination and Appointment of Arbitrator Constitution of ArbitralTribunal Arbitrators Contract Qualities and Skills Required fromChairman Nationality of Arbitrators Ex Parte Contacts between Partiesand Party-Appointed Arbitrators Party-Agreements on Qualifications ofArbitrators Non-Lawyers as Arbitrators</p> <p>20TH SCENARIOCase Management and Challenge of the Tribunals Jurisdiction 97Seat of Arbitration Language of the Proceedings Documents-OnlyArbitration Case Management Conference Pro-active Case ManagementTechniques ICC Terms of Reference Bifurcation of Proceedings ProceduralOrder No. 1 (PO 1) Procedural Order v Party Agreement Kompetenz-Kompetenz Separability of Arbitration Agreement TribunalsPositive and Negative Decision on Jurisdiction Conflict of Laws Issues LawApplicable to Arbitration Agreement Formal and Substantive Validity ofArbitration Agreement Arbitration Clause in Standard Forms Constructionof Arbitration Agreements Principle of Presumptive Validity of ArbitrationAgreements</p> <p>21ST SCENARIOInterim Measures of Protection 103Tribunals Competence for Interim Relief Mareva-Type Injunctions Types of Arbitral Interim Relief Security for Costs Prerequisites for ArbitralInterim Relief Pre-Arbitral Referee Types of Arbitral Interim Relief Ex-Parte Orders Enforceability of Arbitral Interim Relief Orders Relationship between Court Ordered and Arbitral Interim Relief</p> <p>22ND SCENARIOSettlement in Arbitration; Request for Postponement; Change ofOwnership in one of the Parties 107Settlement and Arbitration Settlement Inside and Outside the HearingRoom The Arbitrators Role in Settlement Talks of the Parties SettlementPrivilege Integration of Mediation Techniques Award on Agreed Terms Transfer of Ownership in One of the Parties during Arbitration</p> <p>Table of Contents</p> <p>ix</p> <p>23RD SCENARIOChallenge of Arbitrator 109Grounds for Challenge IBA Guidelines on Conflicts of Interest Independenceand Impartiality Objective, Reasonable Third Person-Test Remoteness ofArbitrators Business Contacts with Parties Duty to Disclose during proceedings(Subjective Test) Failure to Disclose as Independent Ground for Challenge Timing of Challenge Participation of Challenged Arbitrator in TribunalsDecision on Challenge Court Control Misuse of Right to Challenge (TorpedoChallenges) Continuation of Arbitration after Challenge Continuation ofArbitration after Challenge Resignation of Arbitrator</p> <p>24TH SCENARIOThe First Day of the Hearing: The Legal Issues (I) 113Applicable Law Conflict-of-Laws Rules for Arbitrators Choice of Law byParties Closest Connection Test by Arbitrators Significance of Conflict Rules ofLex Fori Rome I and II Regulations Arbitrators Role in Determining Contentsof Applicable Law UN Sales Convention (CISG) Claim for Damagesunder CISG Claim for Repayment of Down Payment under CISG Art. 79CISG Force Majeure Hardship Sacrifice Threshold under the CISG Distribution of Supply Risk Transfer of Supply Risk Foreseeability ofMacro-Economic Crisis</p> <p>25TH SCENARIOThe First Day of the Hearing: The Legal Issues (II) 121Penalty Clause Application of Art. 79 CISG to Liability under PenaltyClause Set-Off in Arbitration Interest Claim Arbitrators Duty to Decideon Costs of Arbitration Guidelines for Cost Decisions Costs for In-HouseCounsel</p> <p>26TH SCENARIOThe Second Day of the Hearing: Taking of Evidence 127Means of Evidence Hybrid Evidence Procedures IBA Rules on the Takingof Evidence Witness, Party Witness and Expert Witness Examination-in-Chief, Cross-Examination and Re-Direct Examination Soft Skills Required Written Witness Statements Document Production in Arbitration Requestto Produce Internal Documents Electronic Disclosure Use of RedfernSchedule Process of Document Production Confidentiality Issues LawyersEthics in Document Production Attorney-Client Privilege Guidelines forEvaluation of Evidence by the Tribunal Court Assistance Comparison ofNegotiation, Mediation and Arbitration</p> <p>Table of Contents</p> <p>x</p> <p>27TH SCENARIODeliberation of the Tribunal and Rendering of the Award 135Costs for Translation of Documentary Evidence Closure of Proceedings Guidelines for Tribunals Deliberations Drafting of Award by Chairman The Role of the Secretary to the Tribunal in the Drafting of the Award Dissenting Opinion Truncated Tribunal Refusal of Arbitrator to SignAward Structure and Contents of Arbitral Award Award without Reasons Award with Signatures of Only Two Arbitrators Types of Arbitral Awards Difference between Award and Procedural Order</p> <p>28TH SCENARIOCorrection, Interpretation and Setting Aside of the Award 139Correction and Interpretation of Award Additional Award on Costs Purposeof Setting Aside Principle of Finality of Awards Court Competence for Actionto Set Aside Awards Grounds for Setting Aside Meaning of Public Policy Prohibition of Rvision au Fond Effect of Setting Aside Exclusion Agreements</p> <p>29TH SCENARIOEnforcement of the Award 143Meaning of Recognition and Enforcement New York Convention Formaland Substantive Requirements Grounds for Refusal of Recognition andEnforcement under Art. V New York Convention Second Look Doctrine Prohibition of Rvision au Fond</p> <p>Glossary of Terms 147</p> <p>Table of Contents</p> <p>xi</p>