PRACTITIONER S HANDBOOK ON INTERNATIONAL ARBITRATION AND MEDIATION

Transcription

1 PRACTITIONER S HANDBOOK ON INTERNATIONAL ARBITRATION AND MEDIATION THIRD EDITION DANIEL M. KOLKEY RICHARD CHERNICK BARBARA REEVES NEAL Editors JURIS

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3 TABLE OF CONTENTS [A detailed synopsis appears at the start of each chapter] Preface... xix About the Editors... xxi About the Contributors... xxiii PART ONE ARBITRATION Chapter I.1 INTRODUCTION: WHY ARBITRATE Andreas F. Lowenfeld 1.01 Overview Selecting a Forum Selecting the Arbitrators Selecting the Applicable Law Enforcing the Award Other Claimed Advantages Conclusion Chapter I.2 DRAFTING AN ENFORCEABLE ARBITRATION CLAUSE Daniel M. Kolkey Richard Chernick 2.01 Introduction The Scope of the Clause The Rules Governing the Arbitration The Number of Arbitrators The Method of Appointment of the Arbitrators The Place of the Arbitration The Language of the Proceedings iii

4 Practitioner s Handbook on International Arbitration and Mediation 2.08 Discovery Interim Relief Choice of Law Judicial Review Currency of the Award Attorney Fees Sovereign Immunity Conclusion Appendix of Arbitration Clauses Chapter I.3 HOW TO COMMENCE AN INTERNATIONAL ARBITRATION Stephen R. Bond Abby Cohen Smutny 3.01 Introduction General Considerations before Commencing Arbitration Procedures for Commencing an International Arbitration Selecting Arbitrators Enforcement of Arbitral Agreements Simultaneous Commencement of Arbitration and Litigation Chapter I.4 SELECTING THE SITE FOR ARBITRATION James H. Carter 4.01 Introduction: The Importance of the Site Factors to Weigh in Selecting a Site Sites to Consider and Their Legal Frameworks How Arbitral Institutions Can Help Select a Site iv

5 Table of Contents Chapter I.5 PROCEDURAL ISSUES TO CONSIDER David W. Rivkin 5.01 Introduction International Arbitration Rules Pre-hearing Conferences Discovery Pre-hearing Motions Choice-of-Law Considerations Interim Orders Witness Statements and Expert Reports Chapter I.6 PRACTICAL CONSIDERATIONS FOR CONDUCTING THE HEARING John Tackaberry 6.01 Introduction The Use of Institutional Rules at the Hearing The Preliminary Meeting Factual Evidence Expert Evidence Documents in the Witness Box Witness Annotations in Evidence Closing Submissions Time-Controlled Hearings Appendix 1 Sample Template for a Hearing Appendix 2 Chess Clock Arbitrations v

6 Practitioner s Handbook on International Arbitration and Mediation Chapter I.7 THE AWARD Jonathan Sutcliffe 7.01 In General Formal Requirements and Components of an Award Drafting the Award Deliberations of the Arbitrators Dissenting Opinions Awards of Costs Corrections, Interpretations, and Additional Awards Notification and Deposit of the Award Special Requirements Chapter I.8 ENFORCEMENT OF INTERNATIONAL ARBITRAL AWARDS UNDER THE NEW YORK CONVENTION Steven L. Smith 8.01 Introduction The Convention s Background How the Convention Encourages Enforcement of Awards Procedures and Prerequisites for Enforcement Defenses to Enforcement Practical Issues Regarding Enforcement vi

7 Table of Contents Chapter I.9 BECOMING AN INTERNATIONAL ARBITRATOR: QUALIFICATIONS, DISCLOSURES, CONDUCT, AND REMOVAL Richard M. Mosk Tom Ginsburg 9.01 In General Appointment Practices Qualifications of Arbitrators Independence and Impartiality Role of the Party-Appointed Arbitrator Disclosure Requirements Objections and Challenges Resignation, Removal and Replacement of Arbitrators Communications with Parties Relations with Other Arbitrators Arbitrator Liability Compensation and Financial Issues Conclusion Chapter I.10 RESEARCH IN INTERNATIONAL COMMERCIAL ARBITRATION: A WORLD OF DIFFERENCE S.I. Strong Introduction The Central Importance of Research and Written Advocacy in International Commercial Arbitration How It s Done Research Sources and Strategies in International Commercial Arbitration Going Forward vii

8 Practitioner s Handbook on International Arbitration and Mediation PART TWO MEDIATION Chapter II.1 INTERNATIONAL MEDIATION BASICS Robert B. Davidson 1.01 Introduction What is Mediation? Advantages and Disadvantages of Mediation as a Settlement Process Distinctive Issues when Mediating International Business Disputes Arbitrators Settling Cases Mediators Acting as Arbitrators Working with an Interpreter Drafting an International Mediation Clause Chapter II.2 INITIATING AN INTERNATIONAL MEDIATION Robert B. Davidson 2.01 Introduction Note Regarding Conciliation versus Mediation in International Mediation How International Mediation is Initiated Institutional Organizations that Offer Mediation Case Value and Selection of the Administrator for the Mediation Maintaining the Mediator s Neutral Role through an Administrator Selecting the Mediation Rules Selecting the Mediator Rules of Confidentiality viii

9 Table of Contents 2.10 Selection of Language to Be Used in the Mediation Selection of Site of the Mediation Conclusion Chapter II.3 REPRESENTING CLIENTS IN MEDIATIONS Robert B. Davidson 3.01 Overview of Attorneys Roles in Mediations Advising the Client about the Mediation Option Negotiating Agreement to Mediate with the Other Attorney Preparing for the Mediation Sessions: Preparing the Case Preparing for the Mediation Sessions: Preparing the Client Representing the Client in the Mediation Sessions: Pre-mediation Conference Representing the Client in the Mediation Sessions: The Formal Mediation Sessions Representing the Client in the Mediation Sessions: Post Sessions CHAPTER II.4 MEDIATING DISPUTES IN CHINA Meg Utterback 4.01 Introduction History Rooted in Confucianism Nature of a Chinese Mediation What to Expect as a Foreign Party Recent Legalization of Mediation Types of Mediation in China Mediation Institutions Mediation in Hong Kong and Singapore Conclusion ix

10 Practitioner s Handbook on International Arbitration and Mediation PART THREE SELECTED COUNTRIES CHAPTER III.1 CANADA J. Brian Casey 1.01 Political and Legal Overview Legal Context for International Arbitration Summary of International Arbitration Laws Adopted by the Provinces and Territories Arbitral Institutions in Canada Arbitration Activities and Training Judicial Trends Practical Issues in Conducting an Arbitration in Canada Appendix A CHAPTER III.2 CHINA Brenda D. Horrigan Felix Hess 2.01 Introduction Features of Arbitration Law in China Requirement for Local Counsel Commencing an Arbitration Practical Considerations for Conducting the Arbitration Arbitration Awards Recognition and Enforcement and Setting Aside of Arbitral Awards x

11 Table of Contents CHAPTER III.3 HONG KONG Peter S. Caldwell 3.01 Introduction Arbitration Law in Hong Kong and Conventions Institutional Arbitration Institutions and Ad Hoc Arbitration in Hong Kong Counsel in Arbitration in Hong Kong Commencing an Arbitration Practical Considerations for Conducting the Hearing Conciliation and Mediation Costs Arbitration Awards Recourse against Awards Recognition and Enforcement of Awards CHAPTER III.4 ENGLAND Arthur L. Marriott 4.01 Introduction Arbitration and the Courts International Developments in the Harmonisation of Arbitration Law English Practice and Modern Arbitration Rules Some Words about Discovery Use of Counsel in Arbitrations Statutory Reform in England Details of the Statute Awards Enforcement of Awards Major Arbitral Institutions Conclusion xi

12 Practitioner s Handbook on International Arbitration and Mediation CHAPTER III.5 FRANCE Philippe Sarrailhé 5.01 Introduction and Definitions Sources of French International Arbitration Law Arbitral Institutions in France Need for Local Counsel Arbitration Agreement Arbitrators and Arbitral Tribunal Arbitral Proceedings Arbitral Award Review Procedures CHAPTER III.6 GERMANY Patricia Nacimiento 6.01 Introduction: Arbitration in Germany Arbitration Law in Germany Conciliation and Mediation Institutional and Ad Hoc Arbitration in Germany Commencing an Arbitration Applicable Law The Arbitration Proceedings Specific State Court Proceedings in Support of or in Relation to Arbitration The Award Recourse against an Award Recognition and Enforcement of Arbitral Awards xii

13 Table of Contents CHAPTER III.7 JAPAN Steven L. Smith Scott Nonaka 7.01 Introduction Arbitration Laws and Conventions Arbitral Institutions in Japan Judicial Involvement in the Arbitral Proceedings Practical Considerations Governing Selection of the Arbitrator Practical Considerations for Conducting the Hearing Formalities for the Award Review and Enforcement of Awards CHAPTER III.8 SWEDEN Kaj Hobér 8.01 Introduction Arbitration Laws and Conventions Arbitral Institutions in the Country Requirement of Local Counsel Judicial Involvement in the Arbitral Proceedings Practical Considerations Governing Selection of the Arbitrator Governing Law for Arbitrations in Sweden Practical Considerations for Conducting the Hearing Formalities for the Award Review of Awards xiii

14 Practitioner s Handbook on International Arbitration and Mediation CHAPTER III.9 SWITZERLAND Paolo Michele Patocchi 9.01 Sources of Swiss Arbitration Law Swiss Arbitral Institutions The Scope of Application of the Law on International Arbitration The Arbitration Agreement Requirements for Counsel Appearing in Arbitration Proceedings and Court Proceedings Related to Arbitration Commencing an Arbitration in Switzerland Conduct of Arbitrators and Challenge of an Arbitrator Arbitral Procedure The Award Setting Aside Proceedings and Revocation Proceedings against an Arbitral Award Made in Switzerland Enforcement of Foreign Arbitral Awards in Switzerland CHAPTER III.10 UNITED STATES Jeffrey H. Dasteel Introduction The Law Governing International Arbitration in the United States Determining Whether an Arbitration Agreement or Award is an International Arbitration under United States Law Compelling an International Arbitration in the United States Jurisdiction: Court or Arbitrator xiv

15 Table of Contents Competence-Competence in the United States Concurrent Jurisdiction in the United States Matters outside the Scope of International Arbitration in the United States Selection of Arbitrators and Disqualification Rules/Procedures Advocates Not Licensed to Practice at the Seat of the Arbitration The Effect of U.S. Style Litigation on the Practice of International Arbitration in the United States Differences in Hearing Procedures Challenging and Enforcing International Arbitration Awards in the United States Conclusion Index SOURCE MATERIAL ON CD ROM Code of Conduct American Arbitration Association (AAA) Code of Ethics for Arbitrators AAA/ABA Model Standards for Mediators CEDR Code of Conduct for Mediators The International Bar Association (IBA) Principles of Conduct for the Legal Profession (2011) The IBA Rules on Taking Evidence in International Commercial Arbitrations (2010) The IBA Rules on Conflicts of Interest in International Arbitration (2004) International Arbitration and Mediation Rules International Chamber of Commerce (ICC) Rules of Arbitration (2012) xv

16 Practitioner s Handbook on International Arbitration and Mediation The International Centre for Settlement of Investment Disputes (ICSID) Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings (Institution Rules) JAMS International Arbitration Rules (2011) JAMS International Mediation Rules (2011) The London Court of International Arbitration (LCIA) Arbitration Rules (1998) UNICTRAL Arbitration Rules (2010) UNCITRAL Model Law on International Commercial Arbitration (2006) World Intellectual Property Organization (WIPO) Arbitration Rules (2009) National Arbitration Laws Canada British Columbia Commercial Arbitration Act, R.S.B.C 1996, c.55 British Columbia International Commercial Arbitration Act, R.S.B.C. 1996, c. 233 British Columbia Foreign Arbitral Awards Act, R.S.B.C. 1996, c. 154 Ontario Arbitration Act, 1991 Ontario International Commercial Arbitration Act, R.S.O. 1990, c. I.9 China Arbitration Law of the People s Republic of China England Arbitration Act 1996 (of England) France Code of Civil Procedure Book Four Arbitration (Decree of 13 January 2011) Germany German Arbitration Law of 1998 xvi

17 Table of Contents Book Ten of the Code of Civil Procedure Hong Kong Hong Kong Arbitration Ordinance Chapter 609 Japan Arbitration Law (Law No. 138 of 2003) Sweden The Swedish Arbitration Act of 1999 (SFS 1999:116) Switzerland Swiss Private International Law Act of December 18, 1987 Code of Civil Procedure, Part 3, Domestic Arbitration United States The United States Arbitration Act (9 U.S.C) National Arbitration and Mediation Rules Canada ADR Chambers Arbitration Rules ADR Chambers International Arbitration Rules ADR Institute of Canada, Inc. National Arbitration Rules BCICAC International Commercial Arbitration Rules of Procedure CCAC General Commercial Arbitration Rules and Model Clause CCAC International Arbitration Rules and Model Clause China Arbitration Rules of the Beijing Arbitration Commission (BAC) China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules xvii

18 Practitioner s Handbook on International Arbitration and Mediation Germany DIS Arbitration Rules 1998 Hong Kong Hong Kong International Arbitration Centre (HKIAC) Administered Arbitration Rules (2008) Japan Japan Commercial Arbitration Association Commercial Arbitration (JCAA) Rules Sweden International Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) (2010) Switzerland Swiss Rules of International Arbitration (Swiss Rules)(2006) United States International Arbitration Rules of the International Center for Dispute Resolution/American Arbitration Association International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitration JAMS International Mediation Rules International Treaties & Conventions Convention on the Settlement of Investment Disputes between States and Nationals of Other States Inter-American Convention on International Commercial Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958 xviii