International Arbitration

Ronnie King, Head of Arbitration Practice Ben Giaretta, Head of Arbitration in Asia

ABU DHABI BRUSSELS DUBAI FRANKFURT HONG KONG LONDON MADRID MILAN MUNICH NEW YORK PARIS SINGAPORE STOCKHOLM TOKYO WASHINGTON DC

Overview
The nature of arbitration The reasons for choosing arbitration over litigation How to draft an arbitration clause

Arbitration an alternative to litigation

Consensual Less formal than litigation A sole arbitrator or panel of three arbitrators decides the dispute Parties choose their procedural rules Can be adversarial or inquisitorial Final and binding arbitration award

Reasons for choosing arbitration

Flexibility Neutrality Privacy Finality Expertise Enforcement

New York Convention

Source: http://plc.practicallaw.com/0-376-2181

Enforcing English judgments

Source: http://plc.practicallaw.com/0-376-2181

Disadvantages
Speed Cost Multiple parties Limited rights of challenge/appeal

Drafting the arbitration clause initial considerations

Which arbitral rules should be used? Where should the arbitration take place? How many arbitrators?

Choosing your arbitral rules

Ad hoc vs. institutional Features of ad hoc
No institution Common to use UNCITRAL Rules

Features of institutional arbitration

Ready made rules and arbitration clause Better regulation of the arbitration Independent review of awards

Well-known arbitral institutions

London Court of International Arbitration ("LCIA") Hong Kong International Arbitration Centre (HKIAC) International Court of Arbitration of the International Chamber of Commerce ("ICC") Singapore International Arbitration Centre ("SIAC") American Arbitration Association ("AAA") (and in particular their International Centre for Dispute Resolution ("ICDR") Stockholm Chamber of Commerce (SCC) www.lcia-arbitration.com/index.htm www.hkiac.org/content.php www.iccwbo.org/index_court.asp

www.siac.org.sg www.adr.org www.adr.org/sp.asp?id=21890

www.sccinstitute.com/?id=23702

Choosing the seat of the arbitration

Level of court interference National court rules Is the dispute arbitrable? Challenging the award Enforceability of the award

Choosing the number of arbitrators

One or three? Sole arbitrator is less expensive Panel of three for high value disputes Industry or particular expertise required?

Choice of law
Governing law of the contract Procedural law of the arbitration

Sample arbitration clause

Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be [specify one or three]. The seat, or legal place, of arbitration shall be [nominate a city or country]. The venue of the arbitration hearing is to be in [specify city or country]. The language to be used in the arbitral proceedings shall be [specify a language to be used].

Additional elements
Confidentiality clause
Unless expressly agreed otherwise, the parties undertake to keep confidential all awards and orders in their arbitration together with all materials in the arbitral proceedings created for the purpose of the arbitration and all other documents produced by another party in the arbitral proceedings not otherwise in the public domain, save to the extent that disclosure is required of a party by a legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a state court or other juridical authority.

Additional elements
Excluding rights of appeal
All awards shall be final and binding on the parties. By agreeing to arbitration under this clause the parties waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority, insofar as such waiver may be validly made.

International Arbitration
Ronnie King, Head of Arbitration Practice Ben Giaretta, Head of Arbitration in Asia

ABU DHABI BRUSSELS DUBAI FRANKFURT HONG KONG LONDON MADRID MILAN MUNICH NEW YORK PARIS SINGAPORE STOCKHOLM TOKYO WASHINGTON DC