Alternative Dispute Resolution

This practice note considers the different forms that so-called "hybrid", "multi-tiered" (or "escalation") and "carve-out" dispute resolution clauses may take. Although a short form, standard arbitration or jurisdiction clause will suffice in the majority of contracts, certain complex projects may require more complicated dispute resolution provisions. This note focuses on the issues that may arise in using complex clauses and highlights the potential pitfalls a lawyer may face in drafting these types of clauses.

The settlement phase will follow the negotiation phase of a mediation.  Any agreement between the parties will be formalised. This note suggests methods for breaking deadlock in negotiations, and outlines the points to be considered when formalising any settlement agreed by the parties, including points to be covered in the settlement agreement, and the need to dispose of any court proceedings.

This note identifies the criteria that parties and their advisers should consider when selecting a mediator, including factors such as accreditation, experience and cost.  It also suggests ways of finding a suitable mediator for a particular dispute. 

This is an example covering letter to the ICC Secretariat, enclosing a Request for Arbitration under the ICC Rules 2012. This document is available in MS Word format. Click here to view it.

A covering letter to accompany a Request for Arbitration under the LCIA Rules. Click here to view it.

Cover letter for Response to Request for Arbitration under the LCIA Rules, including a counterclaim. Click here to view it.

This is an example covering letter to the Singapore International Arbitration Centre Registrar (SIAC), enclosing a Notice of Arbitration under the Arbitration Rules of the SIAC. This document is available in MS Word format. Click here to view it.

This is a claim form for an application to enforce a New York Convention arbitration award and to enter judgment in terms of the award, pursuant to section 101 of the Arbitration Act 1996. This document is only available in MS Word format. Click here to view it.

This is a witness statement in support of an application to enforce a New York Convention arbitration award and to enter judgment in terms of the award, pursuant to section 101 of the Arbitration Act 1996. This document is only available in MS Word format. Click here to view it.

This case study illustrates the procedure for resisting enforcement of a New York Convention award. The factual scenario is the same as that in Enforcing a New York Convention arbitration award: case study and proceeds from the point where the award creditor has obtained an order, on a without notice basis, granting permission to enforce the award. The award debtor must now apply to the English court to set that order aside.

A witness statement in support of the application to set aside an order giving permission to enforce a New York Convention award. This document is only available in MS Word format. Click here to view it.

As the incidence of commercial disputes involving litigants in different jurisdictions increases, supra-national legislators, including the institutions of the EU, seek to improve the efficacy and ease with which cross-border disputes are handled. This analysis article examines the key pieces of legislation that have been enacted by the EU towards harmonising litigation and dispute resolution procedures across its member states. This article examines proposals for reform of Brussels I, including reform of the current rules on recognition and enforcement of judgments and a proposed interface between Brussels I and arbitration. This article also discusses the Insolvency Regulation, the European Enforcement Order Regulation, the Service of Documents Regulation, the Evidence Regulation, the European Order for Payment Regulation, the Small Claims Regulation and the Mediation Directive. This article is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

Pursuant to a new Dubai law that extends the jurisdiction of the Dubai International Financial Centre (DIFC), any party, even those with no connection to the DIFC, can now choose to have their commercial disputes resolved by the DIFC Courts.  Moreover, the law formalises the mechanism for the enforcement of arbitral awards rendered in the DIFC in onshore Dubai.

An Article that explains new ways to proactively reduce and manage the likelihood of formal disputes. These methods include appointing a standing neutral, establishing a peer review panel program for employee disputes and implementing a planned early negotiation process.

PLC Arbitration has selected some of the most significant developments from 2011. This article highlights our top five tips.

A Q&A guide to arbitration law and practice in Liechtenstein. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers in Liechtenstein, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration law and practice in Poland. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

This chapter considers Hong Kong's new Arbitration Ordinance (Chapter 609 of the laws of Hong Kong), which was enacted on 11 November 2010, and will come into effect in June 2011. The chapter highlights some of the reforms brought about by the new Ordinance, and reviews how arbitral parties may benefit from the new Ordinance and the unique elements of the new arbitration system that it will introduce. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

This article provides an outline of some important issues and problem areas relating to the incorporation of arbitration clauses in contracts. The article considers the Norwegian legal framework relating to arbitration and analyses different methods to incorporate an arbitration agreement. The article is based on Norwegian law and considers only contracts between business entities. This article is part of the PLC multi-jurisdictional guide to arbitration. For a full list of contents visit www.practicallaw.com/arbitrationhandbook.

This article examines the extent of the right to admit new statements, claims and grounds for the claims, and present new evidence during the course of arbitration in Norway. It compares the position under the new Norwegian Civil Procedure Act 2005 (NCPA), and the Norwegian Arbitration Act 2004 (NAA). These two acts originate from the same reform of Norwegian civil procedure, but have slightly different legal effects due to their different wording and objectives. Comparison is also made to the position under the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law), which the NAA is closely based on. This article is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of contents visit www.practicallaw.com/disputehandbook.

As international arbitration grows in popularity, more jurisdictions are emerging as locations in which to arbitrate. This article highlights growing hotspots for international arbitration and identifies some of the top arbitration lawyers in these jurisdictions.

The International Bar Association (IBA) has adopted new rules for investor-state mediation, drafted by the IBA state mediation sub-committee.

Natalia Belomestnova (Senior Associate) and Tatiana Zakharova (Associate), Goltsblat BLP The Head of the Supreme Commercial Court of the Russian Federation recently made a speech, at the II International Legal Forum on "Unfair competition among legal systems", in which he criticised foreign arbitration and litigation proceedings. The speech has raised concerns among arbitration and dispute resolution practitioners about the implications for future court practice in Russia.

Natalia Belomestnova (Senior Associate) and Tatiana Zakharova (Paralegal), Goltsblat BLP In a recently published decision of 13 March 2012, the Federal Commercial Court of Moscow region took a formalistic approach to the wording of an arbitration clause and confirmed the annulment of an ICAC award because ICAC was not competent to consider the dispute. The court’s conclusion is based on the fact that the arbitration clause in question referred disputes to settlement under the ICAC rules, not to ICAC as an institution.

In West Tankers Inc v Allianz SpA & Anor [2012] EWHC 854 (Comm) (04 April 2012), the court considered whether EU law deprived an arbitral tribunal of jurisdiction to award damages for breach of an obligation to arbitrate. (Free access)

Natalia Belomestnova (Senior Associate), Goltsblat BLP On 27 February 2012, the public prosecution office in Saint Petersburg ordered a construction company to remove arbitration clauses from all of its contracts with its clients. The order was issued as a result of an investigation by the prosecution office into the construction company’s activity and its compliance with legislation, in particular consumer protection laws.

PD Dr. Nathalie Voser (Partner) and James Menz, J. D. (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 7 March 2012 and published on 20 March 2012, the Swiss Federal Supreme Court highlighted the need for petitions to set aside international arbitral awards to be complete and accurate, and to be filed within the 30-day deadline after receipt of the award.

PD Dr. Nathalie Voser (Partner) and Elisabeth Leimbacher (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 13 February 2012 and published on 2 March 2012, the Swiss Supreme Court confirmed its liberal case law regarding arbitration agreements by reference in sports arbitration, otherwise referred to as "mandatory arbitration". The Court ruled that in sports-related disputes, the issue as to whether a non-signatory to the arbitration agreement can challenge the arbitral tribunals' decision relates to the standing of a party (qualité pour agir), which is a procedural question. It also confirmed previous case law regarding the challenge of decisions on the suspension of arbitral proceedings before the Swiss Supreme Court.

In ConocoPhillips Company et al v Bolivarian Republic of Venezuela (ICSID Case no ARB/07/30), two arbitrators rejected a challenge to the third based on the merger of the third arbitrator's law firm.

In White Industries Australia Ltd v Republic of India (UNCITRAL) (Final Award) (30 November 2011), an UNCITRAL tribunal held that extensive judicial delays in the enforcement of an International Chamber of Commerce arbitration award amounted to a breach of the Australia-India bilateral investment treaty.

In Chevron Corporation and another v Republic of Ecuador (PCA Case No 2009-23) (Second Interim Award on Interim Measures (16 February 2012), a UNCITRAL tribunal has issued interim awards requiring the Republic of Ecuador to take all necessary measures to suspend the enforcement of an Ecuadorian court judgment, and ruling that it has jurisdiction to determine the claims advanced by Chevron and its indirectly owned subsidiary.

In Republic of Mauritius v United Kingdom (Reasoned Decision on Challenge, 30 November 2011), an arbitral tribunal constituted under the United Nations Convention on the Law of the Sea 1982 considered a challenge to the arbitrator appointed by the UK.

PLC Arbitration has published Article, Top five tips from 2011, highlighting some of the most significant developments in arbitration from 2011. (Free access.)

The HKIAC has published a consultation paper calling for views on whether revisions should be made to its Administered Arbitration Rules. Responses are requested by 10 February 2012.

On 12 December 2011, the Ministry of Justice published the responses to its consultation and call for evidence, Review of Brussels I Regulation - how should the UK approach the negotiations?

The UNCITRAL Working Group II (Arbitration and Conciliation) continued its discussions about transparency in treaty-based investment arbitration in Vienna between 3 and 7 October 2011.

In Universal Compression International Holdings SLU v Bolivarian Republic of Venezuela (ICSID Case No ARB/10/9), the chairman of the ICSID Administrative Council has rejected requests to disqualify Professor Brigitte Stern and Professor Guido Santiago Tawil, which had been made on the basis that Stern had been repeatedly appointed by the respondent and that Tawil had acted as co-counsel with the claimant's lawyers on previous occasions.

An update on the Civil Procedure Rule Committee's proposals to amend Practice Direction 62 (Applications for permission to appeal under section 69 of the Arbitration Act 1996).

An update on the Japan Commercial Arbitration Association's International Commercial Mediation Rules.

Drafting notes to accompany the Response to a Request for LCIA arbitration.

Drafting notes to accompany the claim form for an application to enforce a New York Convention arbitration award and to enter judgment in terms of the award, pursuant to section 101 of the Arbitration Act 1996.

Drafting notes to accompany the witness statement in support of an application to enforce a New York Convention arbitration award and to enter judgment in terms of the award, pursuant to section 101 of the Arbitration Act 1996.

Drafting notes to accompany the draft order in the case study on resisting enforcement of a New York Convention award.

In AMEC Group Ltd v Secretary of State for Defence [2013] EWHC 110 (TCC), Coulson J in the Technology and Construction Court (TCC) rejected a challenge against a dispute review board's (DRB) award concerning the meaning of a guaranteed maximum price (GMP) clause. The DRB was constituted as an arbitration and the board's award was appealed under section 69 of the Arbitration Act 1996.

In Enercon GmbH and another v Enercon (India) Ltd [2012] EWHC 689 (Comm), Eder J considered whether to grant permission to serve an arbitration claim form out of the jurisdiction, make an order appointing an arbitrator under section 18 of the Arbitration Act 1996, and continue interim anti-suit and freezing injunctions.

In Navios International Inc v Sangamon Transportation Group [2012] EWHC 166 (Comm) (8 February 2012), the court considered an application under section 70(4) of the Arbitration Act 1996 for an order that the tribunal provide fuller reasons for its decision, to enable the court to deal properly with an appeal.

In Abuja International Hotels Ltd v Meridien Sas [2012] EWHC 87 (Comm), the Commercial Court considered a challenge to the validity of an arbitration agreement under section 67 of the Arbitration Act 1996 and proceeded on the basis of the tribunal's finding that the law governing the arbitration agreement was the law of the seat, rather than the law of the host contract.

In West Tankers Inc v Allianz SpA and another [2012] EWCA Civ 27, the Court of Appeal considered whether the court has power to enter judgment in terms of a declaratory award. (Free access.)

An update on Chalbury McCouat International Ltd v PG Foils Ltd [2010] EWHC 2050 (TCC), in which the court considered under section 2(4) of the Arbitration Act 1996 whether, by reason of a connection with England and Wales, it was appropriate to exercise its powers under section 18 of the Arbitration Act 1996.