INTERNATIONAL ARBITRATION Domenico Di Pietro STUDYING LAW AT ROMA TRE FALL SEMESTER 25 October 2010

DRAFTING TIPS AND ARBITRATION PLANNING Characteristics of the parties –Nationality –Role in the transaction –Limitations –Immunities –First or one-off transaction? –Awareness of arbitration agreement The characteristics of the transaction –Arbitrability –Long term relationship? –Confidentiality is an issue? What kind of arbitration? –What kind of clause? Tailor made or boiler plate? –What kind of tribunal? What kind of procedure? Where? –Arbitration friendly? –Local courts’ attitude

SPECIAL-PURPOSE CLAUSES Escalation Clauses/Multi-Tier - Is it appropriate for all contracts or all aspects of a contract? - Binding or non-binding ADR? Unilateral Arbitration Clauses - Option for one of the parties to arbitrate rather than litigate - It encourages claims - Uncertainty as to first-commenced action Complex Structures and the Need for Synchronisation - Multi-party/Multi-agreement structures - Synchronised clause to provide for different nature of relationship and parties

All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. ICC MODEL CLAUSE

ESCALATION CLAUSES LCIA MEDIATION AND ARBITRATION In the event of a dispute arising out of or relating to this contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation in accordance with the LCIA Mediation Procedure, which Procedure is deemed to be incorporated by reference into this clause. If the dispute is not settled by mediation within [ ] days of the appointment of the mediator, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.

“Any dispute or claim by one party against the other shall be amicably resolved by the Parties’ representatives. Should the settlement negotiations fail, any difference relating to the interpretation of this agreement, shall be amicably resolved by arbitration under the rules of the international arbitration court. The arbitration shall be held in London or Paris, at the exclusive choice of the defendant. The parties submit to the exclusive jurisdiction of the English courts” ANALYSING ARBITRATION CLAUSES I

“In case of disputes, if any, arbitration, London” ANALYSING ARBITRATION CLAUSES II

SCENARIO I European Party A enters into a contract with Asian Sovereign State B for the supply of 1M screwdrivers. Party A will have the screwdrivers manufactured by South American Party C

SCENARIO II Research and Development agreement relating to groundbreaking new chemical product and relevant trademark. Parties are European Company A and Chinese Company B

SCENARIO III Foreign investor from country A wins bid launched by host State B for the concession of the national water and sewage system Draft Concession contract considering BIT in place between Countries A&B providing for one of the following alternatives: - UNCITRAL arbitration - ICSID arbitration