INTERNATIONAL ARBITRATION:THE VIEW FROM EUROPE

a presentation by

HEW R. DUNDASChartered Arbitrator DipICArb

International Arbitrator & Mediator

President CIArbto the

Cámara Nacional de Comercio

de La Paz18th July 2007

OVERVIEW of PRESENTATION

Introduction Dispute Resolution Clauses & Options International Commercial Arbitration Codes of Conduct for Arbitrators Alternative Dispute Resolution (ADR) Conclusions

DISPUTE RESOLUTION OPTIONS

Litigation Arbitration

Domestic

International

ADRMediation/Conciliation

Other ADR

Advantages and Disadvantages

LITIGATION

Difficulties of Litigating Local Laws – are they adequate ? Courts – Good, Bad and Ugly Timescales - long and VERY long Finality Enforceability Costs

INTERNATIONAL COMMERCIAL ARBITRATION (1) - OVERVIEW

What Is It ? Profusion of Relevant/Applicable Laws Institutions and Tribunals Finality Enforceability Normalisation of Standards

INTL. COMM. ARBITRATION (2)PROFUSION of LAWS

Law of the Contract Law of the Arbitration Agreement Law of the Arbitration (Lex Arbitri) Law governing Capacity of Parties Law of Seat (Lex Curiae) Law of Place of Enforcement Other Potentially Applicable Laws

INTL. COMM. ARBITRATION (4) ARBITRATION INSTITUTIONS

United Nations - UNCITRAL Established by Treaty between States

ICSID [CIADI]NAFTA/ECT

Private International InstitutionsICC/LCIA

National Institutions eg CAC/CIETAC/AAA Chartered Institute of Arbitrators Other

INTL. COMM. ARBITRATION (5) PROCEEDINGS (1)

Ad Hoc vs Institutional Arbitration Party Autonomy; parties can choose

Lex ArbitriInstitutionRules/ProcedureTribunalSeatLanguageOther Details

INTL. COMM. ARBITRATION (6) PROCEEDINGS (2)

Common vs Civil Law Cultures Communications Disclosure Standards of Conduct by Arbitrators

Ethics Tribunal Issues

INTL. COMM. ARBITRATION (7)AWARD & ENFORCEMENT

Appeals Against AwardJurisdictionProcedural FailuresIssues of Law [very few countries]

Exequatur Enforcement New York Convention 1958

INTL. COMM. ARBITRATION (8)NEW YORK CONVENTION

Recognition of Arbitration Agreements Enforcement via NYC58; Court may refuse

Art. V(1)Capacity/InvalidityFailure of Due Process/other Procedural FailureOutwith JurisdictionAward Not Binding/Set Aside at seat

Art. V(2)Dispute not ArbitrableAward Contrary to Public Policy

Court MAY, not “shall”, refuse enforcement Enforcement other than via NYC58

INTL. COMM. ARBITRATION (3)SOME KEY LEGAL ISSUES

Capacity to sign Arbitration Agreement Arbitrability Substantive/Procedural Laws Arbitrations against States

State Immunity Enforceability Public Policy Exception (NYC V(2)(b))

INVESTMENT ARBITRATION

Private Investor vs State/State Entity Nature of Arbitration Agreement BITs/MITs Washington Convention/ICSID [CIADI] NAFTA Energy Charter Treaty State Immunity

CIArb CODE of CONDUCT (1)

CIArb is Self-Regulating Professional Institute

CIArb “Code of Professional And Ethical Conduct for Members” [January 2007]

Binding on All CIArb MembersArbitrators/Mediators/Any Other

Breach of Code is Professional Misconduct Full Disciplinary Process

CIArb CODE of CONDUCT (2)

Avoid Conduct Unbecoming Uphold Integrity & Fairness of the Process Disclosure of Potential Conflicts

Failure to Disclose may lead to disqualification. Arbitrator to Accept Appointment Only If:

Suitable Experience and AbilityAvailable time to proceed with the arbitration

Can Publicise Qualifications ExperienceNo Advertising

CIArb CODE of CONDUCT (3)

Overriding obligation to act fairly and impartially as between the parties, at all stages of the proceedings

No Delegation of Responsibilities Observe Trust and Confidentiality No Private Communications Arbitrator/Party

– Includes telephone Integrity Regarding Fees/Expenses

Fees and Expenses must be Reasonable

CIArb GOOD PRACTICE GUIDELINES

“Good”, not necessarily “Best”, Practice Assistance for Arbitrators >1,000 Man-Years of Experience Origins in English Arbitration Act 1996 Now Internationalised Covers practical issues not covered by

Statute Quasi-Regulatory Effect

CURRENT ISSUES AFFECTING CONDUCT

Arbitrator Interviews Non-Qualified Arbitrators Non-Professional Arbitrators Tribunal Dynamics Cultural Differences Arbitrators Appointed by States “The Club”

ALTERNATIVE DISPUTERESOLUTION (1) - OVERVIEW

What is ADR ? Why ADR ? Relationship with Courts Compulsory or Voluntary ? Court Support of:

The ProcessThe Outcome

Qualifications and Training

ADR (2) – FORMS of ADR

Executive Negotiation Early Neutral Evaluation (ENE) Private Mini-Trials Mediation/Conciliation Med-Arb, Arb-Med Other None of the Above

DISPUTE PREVENTION &DISPUTE MANAGEMENT

PreventionCorporate CultureCo-Operation – what do YOU WantConciliatory ApproachLocal Customs/Culture/Mores

ManagementDedicated Task ForceExpertise – technical/litigatorDecision-making

CONCLUSIONS (1)

Respect for the Rule Of Law Arbitration and ADR are Fundamental Growth and Development of National &

Regional Centres Maximise Co-Operation Increasing Normalisation of Standards Role of Cámara/Colegio Role of CIArb

CONCLUSIONS (2)

Muchas Gracias for

your ATTENTION

this evening