international dispute resolution

International Dispute Resolution Overview

• Learning Objectives:

  • Apply the standards of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

  • Explain various methods of alternative dispute resolution in an international context.

• Characteristics of International Disputes:

  • Typically involve corporations or government entities, not private individuals.

  • Different considerations apply versus domestic disputes, leading to separate legal regimes governing international dispute resolution.

Arbitration

• Definition:

  • Arbitration is international if parties have different nationalities or if the dispute involves a state other than the countries of the parties involved.

  • Generally lacks connection to the country where the arbitration is held, other than geographical location.

• Significance of International Arbitration:

  • International arbitration awards are widely enforceable across many countries.

  • The 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards facilitates this process.

International Arbitration Forums

• Prominent Administering Bodies:

  • International Chamber of Commerce (ICC) - International Court of Arbitration in Paris.

  • London Court of International Arbitration (LCIA).

  • American Arbitration Association (AAA).

• Arbitration Rules:

  • Each body has its own set of rules (e.g., ICC Rules, LCIA Rules, AAA International Arbitration Rules) that govern:

    • Commencement of arbitration

    • Exchange of pleadings

    • Appointment and removal of arbitrators

    • Hearings and interim protective measures.

• Arbitrator Appointments:

  • LCIA appoints arbitrators but considers party criteria.

  • ICC allows parties to nominate arbitrators for ICC's confirmation.

  • AAA requires notification of designation.

• Seat of Arbitration:

  • Determined by the LCIA unless otherwise stated in writing by parties.

  • Defaults to London unless deemed inappropriate.

• Terms of Reference (ICC):

  • Must summarize claims, list issues, and outline applicable procedural rules; encourages settlement discussions.

  • ICC awards require approval from the ICC court.

Ad Hoc Arbitration Rules

• UNCITRAL Arbitration Rules:

  • Provide a procedure for parties reluctant to use formal arbitration institutions to save costs while ensuring structured arbitration.

Alternative Institutions to ICC

• World Intellectual Property Organization (WIPO):

  • Specializes in arbitration for intellectual property disputes (patents, trademarks, copyrights).

• Advantages of WIPO:

  • Offers best practices for arbitrator nominations, accounting for party preferences.

  • Maintains a database for qualified arbitrators.

  • Rules cater to multiparty arbitrations.

International Mediation

• Mediation and Conciliation Growth:

  • Originated in the U.S. and gaining global acceptance due to frustration with traditional resolution methods.

• Characteristics:

  • Involve consensual processes assisted by a neutral third party, termed third-party-assisted negotiation.

• Global Usage:

  • Common in multiple countries including the U.S., Canada, Australia, and others.

  • Growing in the UK with dedicated organizations like the Center for Dispute Resolution.

Key Takeaway Concepts

• Nature of International Arbitration:

  • Defined by international parties and subject matters that involve different national states.

• Administering Bodies:

  • Recognized institutions include ICC, LCIA, and AAA which provide structured arbitration processes.

• Alternative Specialization:

  • WIPO serves a dedicated role in intellectual property arbitration, providing unique advantages.

• Consensual Processes in Mediation:

  • Highlight mediation and conciliation as viable and preferred methods of dispute resolution on an international scale.