Arbitration, obviously. Or is it? Hanenburg-Yntema Fonds – Leuven - 14 March 2012 Prof Geert Van Calster Leuven law

Overview of Presentation Intro – what’s in a name Arbitration, obviously. Or is it? Conclusion

‘ADR’ and arbitration

ADR and arbitration ‘Alternative’: ie alternative to ‘litigation’ i.e. the courts A‘DR’: various methods: -Mediation (with neutral third party) -Arbitration (with neutral third party) -Negotiation (without neutral third party) -‘Collaborative law’ (with a larger group of professionals) (mostly confined to family law; quid insolvency…?)

‘Arbitration’ Not new: see already the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards Two broad categories: –‘Investor-State arbitration’, a better name for which is Investor-State dispute settlement: the novelty lies in standing under international law, rather than in the ‘arbitration’ element –‘Commercial’ arbitration, whether international or national

‘Arbitration’ Both categories are subject to criticism Today’s focus: commercial arbitration Advantages of arbitration now seemingly so obvious that arbitration clauses are included matter of factly in nearly all contracts of a decent size

Arbitration, obviously. Choice galore: Choose your arbitrators (know-how and experience; but also character and MO) Choose your law Choose your procedure, which on the whole can be more flexible than in litigation (but see: standardised rules of ICSID etc)

Arbitration, obviously. Speed: Belgian and Italian torpedos not possible Especially for jurisidictions with trial by jury, and with punitive damages: decreased likelihood that the findings will be ‘over the top’ ‘Equity’ or fairness: the ‘good’ arbitrator (see choice, above) will tend not to let the case be determined by technicality, or obsession with detail, but rather with a ‘fair’ outcome given the spirit of the contract ! The private character of the proceedings (idem of course for investor /State)

Or is it?

Choice of arbitrators: Independence and impartiality The Solomon effect Cost? Not necessarily lower, especially with three-arbitrator panel

Or is it? Speed? But very limited rights for appeal Speed? But lack of formality might mean quite the opposite Speed? But if you do appeal, you may find yourself involved in even lengthier legal battles than those you wanted to avoid. Speed? But enforcement abroad may be an issue See in this respect also the West Tankers issue (case details on gavclaw.blog)

Arbitration, obviously. Or is it? Hanenburg-Yntema Fonds – Leuven - 14 March 2012 Prof Geert Van Calster Leuven law