Mediation of international disputes: how to make it work?

Transcription

1 ROUND TABLE Mediation of international disputes: how to make it work? Monday February 7, pm to 8 pm Conference Rooms Saint-Florentin 1 & 2

2 Revision of ICC Rules of Arbitration and Impact on Mediation Michael W. Bühler

3 Revision of ICC Rules of Arbitration and Impact on Mediation

4 The Revision of the 1998 ICC Rules of Arbitration A soft touch on mediation Revision of ICC Rules of Arbitration and Impact on Mediation

5 Article 24 [Draft] Case Management Conference and Procedural Timetable [ ] 4. Case management conferences may be conducted through a meeting in person, by video conference, by telephone or similar means of communication. In the absence of an agreement of the parties, the arbitral tribunal shall determine the means by which the conference will be conducted. The arbitral tribunal may request the parties to submit case management proposals in advance of a case management conference and may request the attendance at any case management conference of the parties in person or through an internal representative. Revision of ICC Rules of Arbitration and Impact on Mediation

6 Article 24 [Draft] Case Management Conference and Procedural Timetable (2) 1. When Drawing up the terms of reference or as soon as possible thereafter, the arbitral tribunal shall convene a case management conference to consult the parties on procedural measures that may be adopted pursuant to Article 22(2). Such measures may include one or more of the case management techniques described in Appendix V ( Case management Techniques ). Revision of ICC Rules of Arbitration and Impact on Mediation

7 Appendix V: Case Management Techniques The following are examples of case management techniques available to the arbitral tribunal and the parties for controlling time and cost... [ ] Settlement of disputes: Informing the parties that they are free to settle all or part of the dispute either by negotiation or through any form of amicable dispute resolution methods such as, for example, mediation under the ICC ADR Rules. Where agreed between the parties and the arbitral tribunal, the arbitral tribunal may take steps to facilitate settlement of the dispute,[ ] Revision of ICC Rules of Arbitration and Impact on Mediation

8 The key to the success of mediation: assessing which cases are suitable for mediation Ulrich Hagel

9 Experience of the ICC with mediation under the ADR Rules of 2001 Hannah Tümpel

10 CEDR Rules for the Facilitation of Settlement Jacob Grierson

11 The Challenge To increase relatively low rates of settlement in international arbitration Obstacles: High stakes Involvement of governments Insufficient involvement of in-house counsel and other members of management Potential desire by some counsel & arbitrators to spin out arbitrations CEDR Rules for the Facilitation of Settlement

12 Attempted Solutions Revision of Rules of Arbitration Rules for the Facilitation of Settlement CEDR Rules for the Facilitation of Settlement

13 When do CEDR Settlement Rules Apply? Apply to any type of arbitration BUT apply only when parties have agreed that they should CEDR Rules for the Facilitation of Settlement

14 CEDR Rules in a Nutshell Party representatives should attend 1st procedural conference Arbitrators should take proactive steps to facilitate settlement Arbitrators should insert mediation window where requested by all parties or specified in contract Arbitrators should take account of settlement discussions when deciding on costs CEDR Rules for the Facilitation of Settlement

15 In More Detail: Proactive Steps Providing preliminary views Providing preliminary non-binding findings Suggesting terms of settlement BUT no private meetings ( caucuses ) Chairing settlement meetings (i.e., acting as mediator) CEDR Rules for the Facilitation of Settlement

16 In More Detail (2): Deciding on Costs Arbitrators should take into account: An offer to settle where party to whom the offer was made has not done better in Award than terms of Offer Unreasonable refusal by party to use mediation window Failure by party to comply with contractual mediation/negotiation clause CEDR Rules for the Facilitation of Settlement

17 Offers to settle Offer: $10 M Party A Party B Award: $8 M CEDR Rules for the Facilitation of Settlement

18 In More Detail (2): Deciding on Costs Arbitrators should take into account: An offer to settle where party to whom the offer was made has not done better in Award than terms of Offer Unreasonable refusal by party to use mediation window Failure by party to comply with contractual mediation/negotiation clause CEDR Rules for the Facilitation of Settlement

19 Conclusions Unlikely that parties will agree to apply CEDR Rules wholesale But Rules can be expected to provide guidance on best practice (like IBA Rules of Evidence) Sample Directions (released December 2010) are particularly helpful CEDR Rules for the Facilitation of Settlement