EMERGENCY ARBITRATION

Transcription

1 EMERGENCY ARBITRATION An Effective Tool for Enforcing M&A / JV Agreements Mark Appel Dispute Resolution in M&A / JV Transactions Warsaw, Poland May

2 The Problem Your company / client is in the midst of implementing a multi-state merger or JV agreement. Millions of Euros / Dollars are riding on a timely implementation of the Agreement. The acquired company / JV Partner seems to lose its' enthusiasm for going forward. What can you do? 2

3 Possible Solutions? 3

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5 Emergency Arbitration! 5

6 ICDR Emergency Measures Rule 2006 Similar Measures More Recently Enacted By Most Major Global Arbitration Providers 6

7 ICDR Emergency Measures Rule Highlights Effective 1 May 2006 Notice Requirements Single Arbitrator Appointed Within One Day Powers of Emergency Arbitrator Order or Award Tribunal Review Authority No Additional Administrative Cost to Access 7

8 Innovations for Efficiency at ICDR Organisational Hearing / Increased Arbitral Authority Fee Refund for Early Settlement Mediation Procedures Guidelines for Arbitrators on Exchanges of Information Expedited Procedures 8

9 Early Iterations Had to Be Agreed to Separately Rarely Used Pre-Arbitral Referee ICC AAA Optional Procedure for Emergency Measures of Protection 9

10 Results! 24 Requests Granted (partially or in full) 14 Requests Denied SUMMARY 50 ICDR Cases May Cases Settled 2 Request Withdrawn 1 Request Pending 10

11 Case Study Yahoo! Inc. V. Microsoft Corp. (983 F. Supp.2d 310 (S.D.N.Y. 2013) Illustrates That Courts Will Review Emergency Arbitrators Decisions With the Same Deference As Other Awards Under the FAA, and That Proceedings Can Move Very Quickly. Microsoft Commenced an Emergency Arbitration Alleging That Yahoo Breached Their Agreement Regarding a Search Engine Alliance. The Emergency Arbitrator Issued an Order Requiring Yahoo to Perform Its Obligations Under the Parties Contract. Yahoo s Motion to Vacate Was Denied Even Though They Argued, and the Court Agreed, That the Relief Granted By the Emergency Arbitrator Was the Equivalent of Final Relief. 11

12 Interim Relief Additional U.S. Court Decisions confirming Emergency Measures and Interim Awards in Arbitration: Draeger Safety Diagnostics v. New Horizon Interlock 2011 WL (E.D. Mich. 2011) Court confirmed emergency award ordering the return of customer data, records and equipment. Blue Cross Blue Shield of Michigan v. Medimpact Healthcare Systems 2010 WL (E.D. Mich. June 24, 2010) Court confirmed award requiring that respondent process claims, transfer funds and make payments. Companion Property and Casualty Insurance Company v. Allied Provident Insurance, Inc. (2014 U.S. Dist. LEXIS ) Court confirmed an interim award requiring payment of a security for amounts owed and amounts required to replenish the collateral reinsurance trust. 12

13 Lesson for Contract Lawyers / Litigators Emergency Measures Procedures Are an Effective New Tool for Contract Enforcement in the Context of M&A and JV Agreements 13

14 Thank You Additional Resources Download Rules Articles: The New ICDR International Arbitration Rules By Paul Friedland & John Templeman, White & Case LLP Why Can t Arbitration Go Faster? The ICDR Brings Expedited to International By Michael McIlwrath, General Electric Company ICDR Executive Team Richard Naimark Senior Vice President Mark Appel Senior Vice President Steven Andersen Vice President Luis Martinez Vice President Thomas Ventrone Vice President Michael Lee Vice President Global and Asia T: E: naimarkr@adr.org Europe, Middle East and Africa (EMEA) T: E: appelm@adr.org Canada, Mexico and United States T: E: andersens@adr.org Latin America and United States T: E: martinezl@adr.org Case Management T: E: ventronet@adr.org Asia T: E: leem@adr.org 14