Friday, January 30, 2015

Arbitration Institutions in Central and Western Europe

Albanian Commercial Mediation and Arbitration Center - Tirana, Albania
Alternative Dispute Resolution Center - Rome, Italy
Alternative Dispute Resolution Chambers UK - London, England
Alternative Dispute Resolution Services (ADRS) - Newcastle, England
Amsterdam ADR Institute - Amsterdam, Netherlands
Arab Association for International Arbitration (AAIA) - Paris, France
Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce - Oslo, Norway
Arbitration and Mediation Centre of Paris (CMAP) - Paris, France
Arbitration and Mediation Tribunal of the Balearic Islands (TAMIB) - Palma de Mallorca, Spain
Arbitration Centre of the Chamber of Commerce and Industry of Geneva - Geneva, Switzerland
Arbitration Court at the Economic Chamber of the Czech Republic - Prague, Czech Republic
Arbitration Court of the Chamber of Commerce (HK) - Hamburg, Germany
Arbitration Court of the Estonian Chamber of Commerce and Industry (ACECCI) - Tallinn, Estonia
Arbitration Court of the Slovak Chamber of Commerce and Industry - Bratislava, Slovakia
Arbitration Institute of the Central Chamber of Commerce of Finland - Helsinki, Finland
Arbitration Court of the Latvian Chamber of Commerce and Industry (LCCI) - Riga, Latvia
Arbitration Service of the Cyprus Chamber of Commerce and Industry - Nicosia, Cyprus
Association for International Arbitration (AIA) - Brussels, Belgium
Association Française d’Arbitrage (AFA) – Paris, France
Belgian Centre for Arbitration and Mediation (CEPANI-CEPINA) - Brussels, Belgium
Board of Arbitration of the Central Chamber of Commerce of Finland - Helsinki, Finland
Center for Arbitration and Mediation (CVM) - Munich, Germany
Centre Européen d’Arbitrage (European Centre of Arbitration)(CEA) - Strasbourg, France
Centre for Commercial Arbitration of the Portuguese Chamber of Commerce and Industry - London, England
Centre for International Mediation and Arbitration (CIMA) - Paris, France
Chamber of National and International Arbitration Milan (Camera Arbitrale Milano)(CAM) - Milan, Italy
Chartered Institute of Arbitrators (CIArb) - London, England
Chinese European Arbitration Centre (CEAC) - Hamburg, Germany
City Disputes Panel (CDP) - London, England
Commercial Arbitration Court – Iceland Chamber of Commerce - Reykjavík, Iceland
Court of Arbitration at the Zurich Chamber of Commerce - Zurich, Switzerland
Court of Arbitration Attached to the Hungarian Chamber of Commerce and Industry - Budapest, Hungary
Court of Arbitration of the Polish Chamber of Commerce (Sąd Arbitrażowyprzy KrajowejIzbie Gospodarczej)(SAKIG) - Warsaw, Poland
Court of Arbitration for Sport - Lausanne, Switzerland
Court of International Commercial Arbitration Attached to the Chamber of Commerce and Industry of Romania (CICA) - Bucharest Romania
Danish Centre for Conflict Resolution - Copenhagen, Denmark
Danish Institute of Arbitration - Copenhagen, Denmark
Dublin International Arbitration Centre - Dublin, Ireland
Energy Arbitration Court (EAVB) - Budapest, Hungary
Eurochambres – Association of European Chambers of Commerce and Industry - Brussels, Belgium
European Centre for Financial Dispute Resolution (EUROARBITRATION) - Paris, France
Foreign Trade Court of Arbitration at the Serbian Chamber of Commerce - Belgrade, Serbia
Frankfurt International Arbitration Centre (FIAC) - Frankfurt, Germany
Galician Association of Arbitration and Mediation (ASGAME) - Coruña, Spain
German Institution of Arbitration (DIS) - Köln, Munich, Berlin, Germany
Greek Chamber of Commerce (ACCI) - Athens, Greece
Hellenic Mediation and Arbitration Centre - Athens, Greece
Institute for the Study and Promotion of International Commercial Law and Arbitration (ISDACI) - Milan, Italy
Insurance and Reinsurance Arbitration Society (ARIAS) - London, England
International Arbitration – Venice Chamber of National and International Arbitration - Venice, Italy
International Arbitration Chamber of Paris - Paris, France
International Arbitration Institute (IAI) - Paris, France
Italian Association for Arbitration - Rome, Italy
Law Society of Ireland Arbitration Committee - Dublin, Ireland
Malta Arbitration Centre - Valletta, Malta
Maritime Arbitral Chamber of Paris - Paris, France
Muslim Arbitration Tribunal (MAT) - London, England
National Institute for Conciliation and Arbitration (NIPA) - Sofia, Bulgaria
Netherlands Arbitration Institute (NAI) - Rotterdam, Netherlands
Permanent Arbitration Court at the Croatian Chamber of Commerce - Zagreb, Croatia
Permanent Court of Arbitration Attached to the Chamber of Commerce and Industry of Slovenia - Ljubljana, Slovenia
Riga International Arbitration Court - Riga, Latvia
Scottish Arbitration Centre (SAC) - Edinburgh, Scotland
Spanish Court of Arbitration - Madrid, Spain
Spanish Society of Arbitration (SEA) - Madrid, Spain
Stockholm Arbitration and Litigation Center (SALC) - Stockholm, Sweden
Tribunal Arbitrajo del ICAV (TAV) - Valencia, Spain
Vienna International Arbitral Centre (VIAC) - Vienna, Austria
Vilnius Court of Commercial Arbitration (VCCA) - Vilnius, Lithuania
World Intellectual Property Organisation Arbitration and Mediation Centre (WIPO) - Geneva, Switzerland



Source: http://www.ezcarbitrationlawfirm.com/arbitral-institutions.html

Arbitration Institutions in Eastern Europe


Azerbaijan Arbitration and Mediation Centre - Baku, Azerbaijan
International Arbitration Court of the Belarusian Chamber of Commerce and Industry - Minsk, Belarus
International Arbitration Court of the Juridical Centre (IUS) - Almaty, Kazakhstan
International Commercial Arbitration Court (ICAC) at the Chamber of Commerce and Industry of the Russian Federation - Moscow, Russia
International Commercial Arbitration Court at the RF Chamber of Commerce and Industry - Moscow, Russia
International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry - Kiev, Ukraine
International Commercial Arbitration Court of the Chamber of Commerce and Industry of the Republic of Moldova - Chisinau, Moldova
International Court of Arbitration in Affiliation with the Chamber of Commerce and Industry of the Kyrgyz Republic - Kyrgyz Republic
Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry - Kiev, Ukraine
Permanent Court of Arbitration Dispute Resolution Centre (DRC) - Tbilisi, Georgia
Permanently Acting Arbitration Court at Chamber of Commerce and Industry of the Republic of Armenia (ACCCIRA) - Yerevan, Armenia
Public Organization for the Development of Third Party Arbitration and Legal Support Centres (ARBITRAZH) - Dushanbe, Tajikistan
St. Petersburg International Arbitration Court (SPICAC) - St. Petersburg, Russia
Tbilisi Arbitration Chamber (TAC) - Tbilisi, Georgia


source: http://www.ezcarbitrationlawfirm.com/arbitral-institutions.html

Wednesday, January 28, 2015

Arbitration under UNCITRAL and under institutional rules: principal differences


  • UNCITRAL Rules do not specify the possibility of consolidation
  • UNCITRAL Rules do not specify the possibility of expedited proceedings
  • UNCITRAL Rules do not provide for the  emergency arbitrator
  • UNCITRAL Rules do not do not provide the Terms of Reference
  • UNCITRAL Rules do not specify time to make award
  • Unlike other institutions, no mandatory appointing authority and the parties may choose. In default – PCA designates
  • In UNCITRAL arbitration the procedure is defined by tribunal, while some institutional rules allow the parties to define the procedures
  • In UNCITRAL arbitration the number of arbitrators is three, unless parties agree otherwise (in most institutional rules – one, unless case warrants three)
  • Unless agreed by the parties, in UNCITRAL arbitration the tribunal decides on the seat of arbitration (under the most institutional rules  – the institution will decide)
  • In principle, the costs of the arbitration under the UNCITRAL Rules are to be borne by the unsuccessful party but are subject to the tribunal’s discretion. Under the Most institutional rules the – the tribunal apportions.
  • Although the fees in institutional arbitrations are often more expensive than in UNCITRAL arbitrations, the latter are generally less predictable.

Key changes in 2010 UNCITRAL Rules


  • Parties can now agree to refer disputes arising out "a defined legal relationship, whether contractual or not" to arbitration (Art. 1 (1))
  • Requirement that communications be physically delivered has been removed as Article 2(1) allows "any means of communication" designated by the parties
  • No requirement that an arbitration agreement to be "in writing" (Art. 1(2))
  • The respondent must provide a response to the notice of arbitration within 30 days of receipt of the notice (Art. 4)
  • If the parties have not agreed on an appointing authority within 30 days, PCA will designate an appointing authority (as opposed to 60 days under the 1976 Rules) (Art. 6)
  • Tribunal is specifically required  to avoid unnecessary delay and expense (Art. 17(1))
  • Establishment of a procedural timetable as soon as practicable (Art. 17(2))
  • Exclusion of liability for arbitrators and the appointing authority (Art. 16)
  • Provision for the joint appointment of a single arbitrator to the three-member tribunal, where there are multiple parties (Art. 10)
  • Joinder of other parties to the arbitral proceedings, as long as it does not prejudice any party (Art. 17(5))
  • Broad definition for interim measures and requirements that must be satisfied in order to obtain them (Art. 26)
  • Tribunal-appointed experts must provide the tribunal and the parties with a statement of independence and impartiality (Art. 29 (2)). There are also new model statements of independence for arbitrators to complete at the time of appointment.
  • Tribunal's duty to explain how their fees and expenses have been calculated, and the parties may ask the appointing authority or the Secretary-General of the PCA to review the calculations (Art. 41 (4))
  • The model arbitration clause includes additional optional wording for parties wishing to exclude recourse against an award
  • By virtue of the inclusion of the Transparency Rules, the 2010 UNCITRAL Rules now contain express provisions for the management of investor-State arbitration

 
Source: PLC

Monday, January 26, 2015

Why Arbitrate? Pros and Cons


There are many ways to settle a dispute. Unless relations have broken down completely, the parties will usually attempt to settle the dispute by discussion and negotiations; and this may well lead to a settlement.
 
However, there often comes a point when attempts at negotiation have failed, no agreement is possible, and what is needed is a decision by some outside party, which is both binding and enforceable.
 
The main reasons to chose arbitration are: neutrality and enforcement.
 
Additional reasons: flexibility, confidentiality, additional powers of arbitrators, saving time and costs.
 
There may be situations in which an arbitral tribunal has greater powers than those possessed by a judge. For example, under some systems of law, or some rules of arbitration, an arbitral tribunal may be empowered to award compound interest, rather than simple interest.

 
However, it is often argued that the modern arbitral process has lost its early simplicity. It has become more complex, more legalistic, more institutionalised, more expensive.
 
The matters that are most frequently criticised are: the costs of arbitration; limits on arbitrators' powers; the difficulty of bringing multi-party disputes before the same tribunal or joining third parties; conflicting awards; and what is generally referred to as the ‘judicialisation’ of international arbitration.


Source: Redfern and Hunter on International Arbitration

Tuesday, January 20, 2015

Tribunal's power to sanction the counsel: Hvratska Elektopriveda v. Slovenia and Rompetrol v. Romania


The tribunal's inherent power to sanction counsel is often discussed in light of famous  investment arbitration cases Hvratska Elektopriveda v. Slovenia[1] and Rompetrol v. Romania [2]. In the first case the counsel who had joined the defense team of a state party no earlier than the day before the hearing was disqualified by the tribunal (as this person was a member of the same English barristers' chambers as one of the co-arbitrators), whilst in the second case the challenged counsel was not excluded due to the fact that he has previously practiced law in the same firm as one of the co-arbitrators as a counsel. In the latter case the tribunal draws attention to the interests of the procedural integrity and the party’s right to choose its representative.



[1] Hvratska v Slovenia (ICSID Case No. ARB/05/24).
[2] Rompetrol v Romania (ICSID Case No. ARB/06/3).
 

Challenge of Arbitral Awards

No one likes losing. So it is not surprising that when a client is disappointed with an arbitral award, the first question he asks his lawyer is: ‘How can I appeal?’

‘Appeal’ against an award,  or‘recourse’ to a court, or  more accepted term "Challenge "means either an appeal to a different tribunal (where this is possible under the internal rules of the arbitration) or an appeal to the relevant court which may be asked to vary the award, or to send it back to the arbitrators for reconsideration, or to order that it should be set aside in whole or in part. The law of the seat of the arbitration may contain different provisions for challenging an arbitral award.

Available Options:
 
Before challenging an award before the relevant court, it will usually be necessary to exhaust other available remedies, which may include:
any available process of appeal or review (available in certain arbitratl institutions such as in amritime and commodity arbitrations); and
any available provision for the correction of the award or for an additional award.

Consider that time limits for making an application for the correction or amendment of an arbitral award, or for challenging the award by an application to the relevant national court, are likely to be extremely short (1-3 months).

‘Order’ or ‘award’

Distinguishing between an ‘award’ and a procedural ‘order’ may not be as easy as simply reading the title that an arbitral tribunal chooses to give to its ruling. In recent years, both the Paris Cour d'Appel (The Paris Cour d'Appel decision in Brasoil) and a US Federal Court of Appeals (True North) have classified certain arbitral decisions as ‘awards’, and therefore susceptible to annulment and/or recognition and enforcement proceedings in national courts, even though they were entitled ‘orders’ by arbitral tribunals.

Source: Redfern and Hunter on International Arbitration

Monday, January 19, 2015

Witness Conferencing

General Pros and Cons

· Advantages:

  • Witness conferencing may be regarded as a potentially useful way for an arbitral tribunal to assess the truth as between two conflicting versions of factual events
  • Prevents repetition and thus saves time and costs
  • The creation of a less adversarial environment than the traditional procedure. The panel aims to have the feel of a roundtable discussion between colleagues
  • A greater capacity for witnesses to explore and fully understand the issues about which they are expressing an opinion, by questioning and interacting with other experts

· Disadvantages:

  • factual witness evidence is based in large part on subjective recollections and views on events which occurred
  • The recollections of one witness may be influenced, even unintentionally, by hearing the evidence of other witnesses
  • Instead of coming to point of common agreement, which likely to happen in expert witness conferencing, the fact witnesses, particularly when they are the parties or parties' employees, are likely to remain opposed

Purpose and Use of Witness Conferencing

· Witness conferencing may be a very useful tool for the arbitral tribunal to form an opinion if there are conflicting testimonies regarding the same issue

· So called “witness confrontation” or “witness confrerencing” or "hot-tubbing" is the procedure during which two or more witnesses will be heard at the same time an in confrontation with each other

· Witness conferencing take form of not a ‘witness-by-witness'hearing, but a team-versus-team hearing

· The putting together of opposing experts (hot tubbing) as if the experts were sitting together in a hot tub scrubbing each other's back— and apparently this practice has first been introduced in Australian courts. However, today it has become a common feature in many arbitrations with extensive expert evidence, such as for instance construction arbitrations

· In complex cases it may also be practical to examine all witnesses for each set of issues, the either in succession or together, what is known as witness conferencing or other forms of joint examination


· Conferencing of factual witnesses could be particularly beneficial for instance in construction disputes, or in failed joint-venture or partnership arrangements, where the commercial documentation is inadequate /ambiguous, and where the true intent of the parties are to be established from a number of pre and post-contractual meetings


Hot-tubbing is becoming more common in English engineering and construction arbitration, particularly where the tribunal is made up of engineering or construction specialists who have an independent understanding of the expert issues and are capable of handling an inquisitorial approach


Rules on Witness Examination Techniques

· No generally accepted rules exist for the conduct of the witness examination. Therefore, the arbitral tribunal should agree with the parties on the method

· As the procedure of witness conferencing is relatively novel and there are obviously different ways of approaching it, the tribunal must set clear guidelines to ensure both counsel and the witnesses understandhow the process is to work

· The IBA Rules on Evidence 2010 provide that, by party agreement or upon the order of the tribunal, this conference (referred to in some sources as ‘confrontation’) should occur as part of the examination of the witnesses before the tribunal:

"The Arbitral Tribunal, upon request of a Party or on its own motion, may vary this order of proceeding, including the arrangement of testimony by particular issues or in such a manner that witnesses be questioned at the same time and in confrontation with each other." (Witness conferencing) (Article 8. 3 (f) of 2010 IBA Rules, similar provision found in Article 8.2 of 1999 IBA Rules on Evidence)


Expert Witness v. Fact Witness Conferencing

· Witness conferencing is considered to be more efficient and practical with expert witnesses, rather than with fact witnesses

· A typical application of this procedure for expert witnesses is to provide their written or oral testimony separately and then appear jointly for further questioning, to ensure that each witness can respond to allegations of the other witnesses

· A special form of expert witness confrerencing is to have the experts meet in advance of a hearing (so called “pre-trial expert conferencing”): The parties' experts are ordered to create a joint report on the technical facts

· At fact-witness confrerencing opposing witnesses are typically questioned side-by-side on particular topics. This serves to narrow down conflicting testimonies and may save considerable time by avoiding repetition


Procedure for Witness Conferencing


· The witness conferencing is lead, co-ordinated and controlled by the tribunal. The tribunal may ask questions to one witness, then may ask others to comment on the first witness' answers, or to answer the questions themselves.

· Then the party representatives, usually Claimant, will have an opportunity to ask further questions on the same issue, followed by other party (Respondent).

· At the end, the witnesses may be asked whether anybody wishes to provide further comment

· This way, the procedure allows concentrating on one subject at a time


Tribunal's Role in Witness Conferencing

· As witness conferencing is a relatively new development, there may be the risk of chaos if the procedure is not well controlled.

· Provided that the tribunal is well-prepared for effective questioning and to avoid chaos, this technique may lead the experts and thereby the parties to further agreement on issues that initially may have seemed impossible to agree

· There is a risk with conferencing between experts that the tribunal might assume that the two experts are of equal standing and tribunal may be lost in the technical expert witness debate.

· The Tribunal shall not assume that somebody who may be very good at speaking and expressing an opinion necessarily has the depth of knowledge and expertise of the other person, who might not be quite as good at speaking and expressing his opinion

· However, pre-hearing "hottubbing" resulting in a joint expert report remains by far the most efficient solution. The "Experts' Facilitator" may make it possible.