Your Arbitration Agreement Matters: Tips for Drafting Effective Arbitration Clauses in the U.S. Andrew Behrman February 2017
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1 Your Arbitration Agreement Matters: Tips for Drafting Effective Arbitration Clauses in the U.S. Andrew Behrman February 2017
2 Tips for Drafting Effective Arbitration Clauses 1. Why Are You Choosing Arbitration? 2. Start with Enforcement 3. The Place of Arbitration Means More Than Location for Hearing 4. Types of Arbitration 5. Scope and Nature of Arbitration 6. Multi-Party Arbitration 2
3 Dispute Resolution Options Arbitration Pros Neutrality Flexibility Cross border enforceability Cons Consent limits scope Arbitrators have difficulty compelling results Emergencies and speed National Courts Pros Judicial power to compel Ease of use Sometimes cost Cons Jurisdiction issues Lack of flexibility More difficult cross border enforceability 3
4 What Is Driving Your Choice of Arbitration? Are the parties from different nationalities? Are the parties in an ongoing commercial relationship? What kinds of disputes are likely to arise? Complex or technical? May specific performance prove necessary? Will there be a need for quick resolution of disputes? How much at stake? Is there the possibility of multi-party disputes? 4
5 Tips for Drafting Effective Arbitration Clauses 1. Why Are You Choosing Arbitration? 2. Start with Enforcement 3. The Place of Arbitration Means More Than Location for Hearing 4. Types of Arbitration 5. Scope and Nature of Arbitration 6. Multi-Party Arbitration 5
6 Enforcement of Arbitral Awards Is the New York Convention relevant? Signatory States obliged to recognize and enforce foreign arbitral awards and to recognize arbitration agreements Only very narrowly defined exceptions; Merits generally immune Is the UNCITRAL Model Law relevant? Make clear the parties' intent that arbitral award can be enforced in any court having jurisdiction of the parties and its assets 6
7 How Will You Enforce A Favorable Award? Where does your counterparty have assets? Enforcement may be possible anywhere your counterparty does business Accounts with international banks Accounts payable can often be attached in the jurisdiction of obligor Enforcement risks should be priced into commercial terms 7
8 Tips for Drafting Effective Arbitration Clauses 1. Why Are You Choosing Arbitration? 2. Start with Enforcement 3. The Place of Arbitration Means More Than Location for Hearing 4. Types of Arbitration 5. Scope and Nature of Arbitration 6. Multi-Party Arbitration 8
9 Place of Arbitration: Why it Matters The place of arbitration will have power to vacate your award Scope of judicial review Arbitrability Public policy The place of arbitration can aide enforcement Is seat a New York Convention signatory? Award can be enforced at seat of arbitration Some countries -- like U.S. -- have very broad enforcement that can require turn over of assets in jurisdiction The law of the seat shapes the powers of the tribunal Evidentiary issues Power to compel evidence from non-parties 9
10 Place of Arbitration: Other Practical Considerations Ease of access to parties and witnesses Expense Neutrality Visas, work permits and right to use foreign counsel 10
11 Tips for Drafting Effective Arbitration Clauses 1. Why Are You Choosing Arbitration? 2. Start with Enforcement 3. The Place of Arbitration Means More Than Location for Hearing 4. Types of Arbitration 5. Scope and Nature of Arbitration 6. Multi-Party Arbitration 11
12 Types of Arbitration: Ad Hoc v. Institutional Institutional Administration Pros Institutional case managers help manage the process Institutional rules can do thinking for you Still have flexibility Pros Greatest flexibility Avoids administration expense Ad Hoc Cons Administration has costs If you are not familiar with rules, may not like the default Cons More work for lawyers - may prove more expensive More areas for dispute Still need an authority to appoint arbitrators 12
13 Some Important Arbitral Institutions International Chamber of Commerce ( ICC ) London Court of International Arbitration ("LCIA") American Arbitration Association ( AAA or ICDR ) International Centre for Settlement of Investment Dispute ( ICSID ) Stockholm Chamber of Commerce Arbitration Institute ("SCC") Swiss Chambers of Commerce and Industry (Geneva, Zurich, etc.) Singapore International Arbitration Centre Hong Kong International Arbitration Centre Arbitration Association of the Republic of China Korean Commercial Arbitration Board ("KCAB") China International Economic And Trade Arbitration Commission ( CIETAC ) World Intellectual Property Organization ( WIPO ) 13
14 Selecting the Arbitrators Sole arbitrator or three-member tribunal Selection by parties (ICC) or institution (LCIA and ICDR) Procedure to appoint Chairman Arbitrator qualifications Language Experience 14
15 Tips for Drafting Effective Arbitration Clauses 1. Why Are You Choosing Arbitration? 2. Start with Enforcement 3. The Place of Arbitration Means More Than Location for Hearing 4. Types of Arbitration 5. Scope and Nature of Arbitration 6. Multi-Party Arbitration 15
16 Shape Your Dispute Resolution Process What kinds of disputes are likely to arise? Is this a long term commercial relationship? Are there technical disputes? Is it important that disputes be resolved quickly? 16
17 Should You Require Negotiation? Party-to-Party with or without intermediary/facilitator Advantages: Minimizes risk to business relationship Can be quick and inexpensive "Outside the box" solutions possible Disadvantages: Both parties must be willing/motivated Non-binding May cede element of surprise Key driver of success depends on relative power 17
18 Scope of the Arbitration Clause Scope of the arbitration agreement defines the jurisdiction of the arbitrators Different formulae (e.g., "all disputes arising under this Agreement" or "all disputes relating to this Agreement") Advantages of arbitration agreements with broad scope Exclusions from scope of arbitration agreement 18
19 Decide Whether Your Arbitrators Will Decide Disputes About Scope Of Arbitration Doctrine of Competenz Competenz Expressly empowering arbitrators to decide jurisdictional issues Role of Arbitral Institution Rules 19
20 Technical Issues May Be Best Addressed By Experts Allows for non-lawyer resolution of highly technical issues Can be conducted quickly Enforceability of expert determinations May not be as enforceable as an arbitral award Can be rendered mandatory by contract Can be "appealable" to arbitrator(s) Institutions can assist with expert determinations: ICC Center for Expertise; WIPO Expert Determination Rules 20
21 Is There a Need for Speed? Interim relief is increasingly available through arbitral institutions Interim relief can also be available through national courts, often at the seat of arbitration Parties can control pace of arbitration Internal contractual deadlines: but avoid being overly optimistic Expedited procedures Consider carving out categories of disputes that need to be resolved quickly 21
22 How Are Arbitrators to Decide Your Dispute? According to applicable law? Ex aequo et bono? Industry principles? Baseball arbitration? "Day" Baseball "Night" Baseball 22
23 Addressing Document Disclosure Issues Can tailor process to fit your circumstances International Bar Association Rules on Taking of Evidence 23
24 Confidentiality Confidentiality of arbitration Confidentiality of information disclosed in the course of the arbitration Confidentiality of the award Protection granted only by some institutional rules and national laws BUT: not an absolute right, subject to statutory disclosure requirements 24
25 Consider Appeal Options Historic benefit of arbitration was finality of award, but also can be a cause for worry. U.S. law unclear about ability to change scope of review of arbitral awards AAA now offers an optional appeal process Must affirmatively opt in to the appeal process Potential to combine with arbitrations offered by other arbitral institutions Review for "material and prejudicial" legal errors or "clearly erroneous" factual determinations Arbitrators can be selected as with primary panel 25
26 Tips for Drafting Effective Arbitration Clauses 1. Why Are You Choosing Arbitration? 2. Start with Enforcement 3. The Place of Arbitration Means More Than Location for Hearing 4. Types of Arbitration 5. Scope and Nature of Arbitration 6. Multi-Party Arbitration 26
27 Multi-Party Contracts and Multi-Party Arbitrations Consolidation Joinder Institutional rules addressing multi-party situations Application of arbitration agreement to third parties Master dispute resolution agreement vs. individual arbitration agreements 27
28 Class Arbitration Issues U.S. Supreme Court decisions increasingly favor class arbitration waivers Great emphasis on parties' agreement and an arbitrator's authority to interpret it 28
29 Thank you Andrew Behrman Baker Botts L.L.P. 30 Rockefeller Plaza New York, NY USA 29
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