1. ALTERNATIVE MEANS OF DISPUTE RESOLUTION

2. ARBITRATION Arbitration agreement always in writing Award is binding
Agreement is voluntary
Solution in the form of a contract A M I C B L E N S
MINI-TRIAL
MEDIATION
NEGOTIATION

3. Negotiation The parties renegotiate to straighten up the situation
Provides for a sincere effort of the parties to arrive at a solution
Agreement is voluntary
The solution is in the form of a contract

4. Mediation
The parties appoint a neutral third party, a mediator to help them find a solution
Agreement is voluntary
The solution is in the form of a contract

5. Mini-trial
Lawyers from both sides present legal and factual arguments and try to solve the problem with the help of a neutral third party
Agreement is voluntary
The solution is in the form of a contract

6. PROS AND CONS ?

7. Arbitration

8. ARBITRATION
The parties agree in writing to subject their dispute to arbitration
Before or after the dispute has arisen
Options:
Ad Hoc arbitration
Institutional arbitration

9. Model Arbitration Clause or Separate Arbitration Agreement
 Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as present in force. Parties may wish to consider adding: (a) The appointing authority shall be __________ (name of institution or person); (b) The number of arbitrators shall be __________ (one or three); (c) The place of arbitration shall be __________ (town or country); (d) The language(s) to be used in the arbitral proceedings shall be __________.

10. 1. AD HOC ARBITRATION
The parties furnish all of the administrative services needed
Agree on the procedural rules (e.g. UNCITRAL Arbitration Rules)
Formulate a mechanism for appointing the arbitrators > an odd number (1,3,5)
Proceedings are confidential
Not a commonly used procedure

11. UNCITRAL ARBITRATION RULES
(=United Nations Commission for International Trade and Law)
Originally intended for Ad Hoc arbitration
Abided by arbitration institutions if the parties call for the procedures in their agreement
No time limit for issuing a decision
The arbitrators must consider custom and trade usage
Considerable discretion to the arbitrators in determining the admissibility of evidence and witnesses
The losing party will bear all of the costs unless the arbitrator believes they should be shared

12. 2. INSTITUTIONAL ARBITRATION
The parties appoint the arbitration institution
The institution conducts the proceedings and manages the administrative aspects in accordance with its own sets of rules

13. American Arbitration Association AAA (NY)
Arbitrators make a decision within 30 days
Arbitrators may consider custom and trade usage in deciding the case
The parties may present evidence and call witnesses or
they may agree that the arbitrators’ decision will be based exclusevely on documentary evidence

14. International Chamber of Commerce ICC (Paris)
Proceedings in any of its locations around the world
Decision within 6 months, extension possible
Under whatever law the parties select
Custom and trade usage may be considered
The right to present evidence and call on witnesses is left to the arbitrators’ discretion
The parties may stipulate that decisions must be based on documents only

15. London Court of International Arbitration LCIA
No set time limit, ”as soon as practicable”
No provision on taking custom and trade usage into consideration
The parties may present evidence but the arbitrators can prevent the cross-examination of witnesses
The parties may stipulate that decisions must be based on documents only

16. ENFORCEMENT OF ARBITRATION AWARDS
Arbitration Award is binding
=> It can’t be appealed unless the procedure was conducted formally incorrectly
The award is confirmed by the court in the country where it is to be enforced

17. New York Convention, 1958 Applies to arbitral awards made in
= The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Applies to arbitral awards made in
any country adopting the Convention
any non-signatory country when the arbitrating parties are from signatory countries
The holder of a valid, binding arbitral award
does not need to seek confirmation in the country where the award was given
may take the award to another signatory country where it will be confirmed and enforced

18. NEW YORK CONVENTION ENFORCEMENT
Country B
Court
recognizes
and confirms
Country A
Company
wins
award
Not necessary
Enforcement
Court confirms

19. PROS AND CONS ?

20. Pros and Cons of Arbitration
International enforcement of awards
Arbitrators are usually experts in the field
=> handling is professional
Litigation is faster than court trials
Procedure is confidential, not public
Institutional arbitration is easy to the disputing parties
Expensive
Ad hoc arbitration is often cheaper than institutional arbitration but can be difficult to conduct