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INTERNATIONAL ARBITRATION: THE VIEW FROM EUROPE a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator & Mediator President CIArb to the Cámara Nacional de Comercio de La Paz 18 th July 2007
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OVERVIEW of PRESENTATION Introduction Dispute Resolution Clauses & Options International Commercial Arbitration Codes of Conduct for Arbitrators Alternative Dispute Resolution (ADR) Conclusions
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DISPUTE RESOLUTION OPTIONS Litigation Arbitration Domestic International ADR Mediation/Conciliation Other ADR Advantages and Disadvantages
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LITIGATION Difficulties of Litigating Local Laws – are they adequate ? Courts – Good, Bad and Ugly Timescales - long and VERY long Finality Enforceability Costs
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INTERNATIONAL COMMERCIAL ARBITRATION (1) - OVERVIEW What Is It ? Profusion of Relevant/Applicable Laws Institutions and Tribunals Finality Enforceability Normalisation of Standards
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INTL. COMM. ARBITRATION (2) PROFUSION of LAWS Law of the Contract Law of the Arbitration Agreement Law of the Arbitration (Lex Arbitri) Law governing Capacity of Parties Law of Seat (Lex Curiae) Law of Place of Enforcement Other Potentially Applicable Laws
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INTL. COMM. ARBITRATION (4) ARBITRATION INSTITUTIONS United Nations - UNCITRAL Established by Treaty between States ICSID [CIADI] NAFTA/ECT Private International Institutions ICC/LCIA National Institutions eg CAC/CIETAC/AAA Chartered Institute of Arbitrators Other
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INTL. COMM. ARBITRATION (5) PROCEEDINGS (1) Ad Hoc vs Institutional Arbitration Party Autonomy; parties can choose Lex Arbitri Institution Rules/Procedure Tribunal Seat Language Other Details
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INTL. COMM. ARBITRATION (6) PROCEEDINGS (2) Common vs Civil Law Cultures Communications Disclosure Standards of Conduct by Arbitrators Ethics Tribunal Issues
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INTL. COMM. ARBITRATION (7) AWARD & ENFORCEMENT Appeals Against Award Jurisdiction Procedural Failures Issues of Law [very few countries] Exequatur Enforcement New York Convention 1958
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INTL. COMM. ARBITRATION (8) NEW YORK CONVENTION Recognition of Arbitration Agreements Enforcement via NYC58; Court may refuse Art. V(1) Capacity/Invalidity Failure of Due Process/other Procedural Failure Outwith Jurisdiction Award Not Binding/Set Aside at seat Art. V(2) Dispute not Arbitrable Award Contrary to Public Policy Court MAY, not “shall”, refuse enforcement Enforcement other than via NYC58
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INTL. COMM. ARBITRATION (3) SOME KEY LEGAL ISSUES Capacity to sign Arbitration Agreement Arbitrability Substantive/Procedural Laws Arbitrations against States State Immunity Enforceability Public Policy Exception (NYC V(2)(b))
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INVESTMENT ARBITRATION Private Investor vs State/State Entity Nature of Arbitration Agreement BITs/MITs Washington Convention/ICSID [CIADI] NAFTA Energy Charter Treaty State Immunity
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CIArb CODE of CONDUCT (1) CIArb is Self-Regulating Professional Institute CIArb “Code of Professional And Ethical Conduct for Members” [January 2007] Binding on All CIArb Members Arbitrators/Mediators/Any Other Breach of Code is Professional Misconduct Full Disciplinary Process
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CIArb CODE of CONDUCT (2) Avoid Conduct Unbecoming Uphold Integrity & Fairness of the Process Disclosure of Potential Conflicts Failure to Disclose may lead to disqualification. Arbitrator to Accept Appointment Only If: Suitable Experience and Ability Available time to proceed with the arbitration Can Publicise Qualifications Experience No Advertising
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CIArb CODE of CONDUCT (3) Overriding obligation to act fairly and impartially as between the parties, at all stages of the proceedings No Delegation of Responsibilities Observe Trust and Confidentiality n No Private Communications Arbitrator/Party –Includes telephone Integrity Regarding Fees/Expenses Fees and Expenses must be Reasonable
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CIArb GOOD PRACTICE GUIDELINES “Good”, not necessarily “Best”, Practice Assistance for Arbitrators >1,000 Man-Years of Experience Origins in English Arbitration Act 1996 Now Internationalised Covers practical issues not covered by Statute Quasi-Regulatory Effect
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CURRENT ISSUES AFFECTING CONDUCT Arbitrator Interviews Non-Qualified Arbitrators Non-Professional Arbitrators Tribunal Dynamics Cultural Differences Arbitrators Appointed by States “The Club”
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ALTERNATIVE DISPUTE RESOLUTION (1) - OVERVIEW What is ADR ? Why ADR ? Relationship with Courts Compulsory or Voluntary ? Court Support of: The Process The Outcome Qualifications and Training
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ADR (2) – FORMS of ADR Executive Negotiation Early Neutral Evaluation (ENE) Private Mini-Trials Mediation/Conciliation Med-Arb, Arb-Med Other None of the Above
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DISPUTE PREVENTION & DISPUTE MANAGEMENT Prevention Corporate Culture Co-Operation – what do YOU Want Conciliatory Approach Local Customs/Culture/Mores Management Dedicated Task Force Expertise – technical/litigator Decision-making
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CONCLUSIONS (1) Respect for the Rule Of Law Arbitration and ADR are Fundamental Growth and Development of National & Regional Centres Maximise Co-Operation Increasing Normalisation of Standards Role of Cámara/Colegio Role of CIArb
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CONCLUSIONS (2) Muchas Gracias for your ATTENTION this evening
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