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International Arbitration & International Arbitration &
Litigation StrategiesLitigation Strategies Panel 4: International Arbitration StrategiesPanel 4: International Arbitration Strategies
January 29, 2008Los Angeles, USA
Authored by Presented by Moderator
Eckart Broedermann James H. Broderick Jeffery J. DaarJeffery J. Daar Malcolm S. McNeilMatthew M. WalshLiu YuwuYgnacio Reyes-Retana
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Selection of Arbitrator
QualityManageme
nt
ProjectManageme
ntKnow HowManageme
nt
Coordination
of Tasks
Cost ControllingCoordinati
onof
Invoicing
Cost estimation
Budget
Mentality
analysisof
judge/arbitrat
or(trainin
g)
Research of Facts
Controllingof Facts
Aw
ard
Overview: Similar topics as discussed in litigationNew YorkConventio
n
PrivateInternational Law
Substantive Law
MandatoryLaw
Rules/Law on
procedureInstitutional
versus ad hoc
arbitration
Litigation versus
Arbitration
ProjectManageme
nt
QualityManageme
nt
Know HowManageme
nt
Cost Controlling
Coordinationof
Invoicing
Cost estimation
Budget
Mentality
analysisof
arbitrator
(training)
Research of Facts
Controllingof Facts
Liaison with Client
For each of these steps it is important to decide on the right strategy.
Arbitration
clause
First Briefinitiating the arbitration
Statement of Claim
MiscellaneousBriefs on
Procedural points
Work on Evidence
Oral Hearings
Post Hearing Brief
Enforcem
ent
Analysis ofRespondents
Answer
AnalysisOther multi-
National treaties
Bilateral treaties
National Arbi-
tration laws
Comparison with
UNCITRAL Model law
Rules/Law on Service
Rules/Law on
Evidence
Forum: location, location, location
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AgendaI. Arbitration Strategy Prior to any Dispute
Many of these aspects are covered during the day in other panels Arbitration v. litigation (Panel 2) Drafting an arbitration clause (Panel 5)
This panel will emphasize a few additional aspects which go beyond these topics (e.g. confidentiality, choice of law)
II. Arbitration Strategy at the Beginning of an Arbitration Location of arbitration Selection of Arbitrators Agreements on procedural aspects like language omitted at the
drafting stageIII. Arbitration Strategy during an Arbitration, e.g.
Level of depth in briefs, Provisional remedies Evidence (discovery), Hearing
IV. Arbitration Strategy after the Arbitration Procedure
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I. Arbitration Strategy Prior to any Dispute (1)
The decision on arbitration in general and the forum and method in particular is a decision on the degree of freedom and control during the arbitration process: Different rules of arbitration give different freedom to the parties.
If there is time, many things can be decided already in the arbitration clause (see Panel 5);
if not, (i) the kind of arbitration forum and the rules chosen determine together with the (ii) types of arbitrators chosen/appointed the remaining freedom.
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Arbitration Strategy Prior to any Dispute (2)
Examples: Implications of location The venue and timing can influence the probability of
settlement negotiations venue off easy plane connections ?
Agreements on general length of an arbitration Agreements on limitation of evidence Language arrangements cannot only reduce the costs,
but also influence the atmosphere of the hearing (pre-selection on who can attend)
Agreements on integration of IBA Rules on Ethics
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Arbitration Strategy Prior to any Dispute (3): Choice of Law
The choice of the substantive law governing the contract is independent from the rules or the venue chosen
Mindset: If it is the law at the place of the venue there is a danger that an international dispute becomes too local
If a neutral legal regime is chosen (e.g. the 2004 UNIDROIT Principles, see www.unidroit.info), an arbitration tribunal can handle such choice often better than a national judge
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II. Arbitration Strategy at the Beginning of an Arbitration (1)
Selection of ArbitratorsTypically governed by arbitration clause or
governing rules Agreements on procedural aspects
Same as above, although greater opportunity for post-demand agreements
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Arbitration Strategy at the Beginning of an Arbitration: Selection of Arbitrators (2)
Single or 3-arbitrators-panel? If you appoint one of three arbitrators:
Concentration on the main job of the party appointed arbitrator:
To decide on the right umpire (chairman). To ensure due process To ensure that all points made by the party will be well
understood. In contrast: No biased arbitrator. That violates the law
& ethics and contravenes the (own) party’s goals
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Arbitration Strategy at the Beginning of an Arbitration: Selection of Arbitrators (3)
Selection criteria: Cultural background, Standing, Personality International competence Education & Know How
At the cross road between substantive law and arbitration law Experience Ability to understand the economics Ability to understand the technical background Independence Availability of potential candidate to act as arbitrator to make
sure that he/she has the time to devote to the matter
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Arbitration Strategy at the Beginning of an Arbitration: Agreements on procedural aspects
During the first weeks of an arbitration (incl. sometimes the first hearing) there is still room to shape the arbitration process: Either by straightforward agreement (e.g. on the
conditions of the arbitrator in an ad hoc process) Or by triggering a procedural order of the tribunal Possible preliminary conference
e.g., Language(s) Timing etc.
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III. Arbitration Strategy Pending the Arbitration Procedure
Provisional remedies Discovery Hearing
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Provisional Remedies
Typically turns on arbitration provision, governing rules, or both
Beware of waiver issues for seeking provisional remedies prematurely
Security deposit issues
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Discovery
Consult arbitration agreement and governing rules
Growing trend towards American-style discovery
Discovery often expanded or restricted by post-demand agreement of parties
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Strategy during the Hearing
Agreement on schedule of hearing E.g. is time for settlement negotiations needed (when
best? Lunch or dinner time?) Admission/limitation of cross-examination Experts conferencing? Opening and/or closing statements? Closing statement and/or post hearing brief?
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IV. Arbitration Strategy after the Arbitration Procedure
Negotiation or enforcement? Economic and Practical Options for
enforcement in different countries? Legal options, e.g., under the doctrine of
merging an arbitration award into a court decision?
Appeal?
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Enforcement of Award (1) An international arbitration award is usually grounded
in the national legal order of the place of arbitration. It is not recognized per se worldwide; it needs first
recognition by the state where enforcement is sought (“Exequatur”).
Rules of recognition are contained In the 1958 New York Convention on the Recognition and
Enforcement of Arbitral Awards (“NYC”, more than 160 member states!);
Sometimes in further international treaties; Otherwise in the local legal orders (which are increasingly
similar as more and more are based on Art. 34 of the UNCITRAL Model Law on International Arbitration).
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Enforcement of Award (2)
As a result, there are a number of akin obstacles to recognition and enforcement of an award.
Under the NYC regime the following points are examined ex officio: Foreign award (Art. I para. 1, 2 NYC) Valid arbitration agreement (Art. II para. 1, 2 NYC) Original or copy of award duly notarized (Art. IV NYC) Arbitrability of the subject matter (Art. V para. 2 a NYC) No violation of the public order (Art. V para. 2 b NYC)
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Enforcement of Award (3)
Under the NYC regime, the following points are examined upon request of a party: Failure of party’s ability to act at the time of the
conclusion of the arbitration agreement (Art. V para. 1 a NYC)
Violation of Due Process (Art. V para. 1 b NYC) Surpassing the competence of the arbitrators (Art. V
para 1. c NYC). In contrast, there is no revision of the grounds (no
révision au fond).
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Enforcement of Award (4)
Example: Different understanding of “public policy” India:
The arbitration law is based on the UNCITRAL Model law (incl. Art. 34).
In 2005, the Supreme Court of India held in the nationally and internationally disputed Saw Pipes Case, that the violation of (substantive) Indian law made an award “patently illegal” and would therefore violate public policy.
In fact, this leads to the (unforeseeable) revision of the grounds.
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Appeal Option?
Pros
Cons
Considerations
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Annex: James H. BroderickAdmitted in California (1981); United States Supreme Court; United States Court of International Trade; United States Courts of Appeals for the Sixth, Ninth, and Federal Circuits; United States District Courts, District of Arizona and Northern, Eastern, Southern and Central Districts of California; Supreme Court of California. Boston University, J.D., 1979Harvard University, A.B., magna cum laude, 1974
Present Position: Partner, Squire, Sanders & Dempsey LLP
International Litigation and Arbitration track record: Mr. Broderick has successfully represented international clients in the defense of lender liability lawsuits, consumer class actions, wrongful termination claims, state unfair competition claims, and antitrust and securities litigation.
Mr. Broderick worked in Tokyo for 18 months under the auspices of a Japanese Ministry of Education fellowship as a research fellow with the law faculty of Sophia University. His fellowship focused on Japanese antitrust law and constitutional law.
Contact: [email protected]; www.ssd.com
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Annex: Malcolm S. McNeilAdmitted in California (1983), District of Columbia, and U.S. Supreme Court Loyola Law School, J.D., 1983Antioch University, B.A., 1980Married; three children
Positions:
- Partner; Chair of China Practice Group, Carlsmith Ball LLP- Firm representative to multilaw- Immediate Past President, Hollywood Heights Association- Honorary President, AIJA (International Association of Young Lawyers)
International Litigation and Arbitration track record: He has participated in cross-national negotiations and has established a network of colleagues throughout the globe who are available to assist clients in foreign countries as the need arises.
Contact: [email protected]; www.carlsmith.com
Carlsmith Ball LLP444 S. Flower Street, 9th FloorLos Angeles, CA 90071213.955.1619
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Annex: Jeffery J. DaarAdmitted in California, 1982University of California at Davis, J.D., 1982Claremont Men’s College, B.A., 1979Married; four children
Present positions:
Managing Attorney of Daar & Newman, P.C.
Chairperson, Consulegis Intellectual Property, Entertainment Law and Information Technology Specialist Group
Chair, International Law Section of the Los Angeles County Bar Association
Chairperson, City of Los Angeles Rent Adjustment Commission
International Litigation and Arbitration track record for more than 20 years.
Contact: [email protected]; www.daarnewman.com
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Annex: Eckart BrödermannLL.M. (Harvard); License en droit (Paris); Maîtrise en droit (Paris); dr. iur. (Hamburg)Admitted in Hamburg (Germany) and New York (New York)July 13, 1958married, four children
Present position: Co-Managing partner of BRÖDERMANN & JAHN Rechtsanwaltsgesellschaft mbH, Hamburg; Lecturer at Hamburg University;
Chairman, Consulegis International Litigation and Arbitration Specialist Group Membership/on the panel of: German Institute of Arbitration (DIS), London Court of
International Arbitration, ICAC Moscow. International Litigation and Arbitration track record for over 20 years including
arbitration under the UNCITRAL Rules (since the Iran Claims tribunal, 1983/84), ICC (including chairman to an ICC arbitration), ad hoc, Stockholm Rules; Swiss Rules and others; concentration on trade, investment and M&A/corporate-related disputes; action both as arbitrator and counsel
Contact: [email protected]; www.German-law.com
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Annex: Matthew M. WalshUniversity of California, Hastings, J.D., 1994Admitted in California, 1994Married; two children
Present position: Partner, Dewey Ballantine LLP and Member of Firm’s Global Arbitration and Dispute Resolution Group
International Litigation and Arbitration track record: Counsel in more than 35 arbitrations over past 13 years involving a variety of commercial disputes, including M&A issues, contract disputes, intellectual property issues and regulatory questions.
Contact: [email protected]
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Annex: Liu Yuwu
LLM, University of International Business and EconomicsLLB, Renmin University of ChinaAdmitted in the People’s Republic of ChinaMarried, one child
Present position: Partner, King & Wood PRC Lawyers
Arbitrator, China International Economic and Trade Arbitration Commission (CIETAC) Arbitrator, Beijing Arbitration Commission (BAC)
Council Member, CIETAC Expert Advisory Board
Mediator, China Chamber of International Commerce Conciliation Center
Specialist, CIETAC Domain Name Dispute Resolution Center. International Litigation and Arbitration track record: Worked at the Secretariat of the
China International Economic and Trade Arbitration Commission (“CIETAC”) for ten years. Published more than 50 awards as sole arbitrator, presiding arbitrator or co-arbitrator since 2003. Counsel to more than 10 arbitrations since 2005.
Contact: [email protected]
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Annex: Ygnacio Reyes-Retana
Present position: National Partner in Baker & McKenzie Abogados, S.C. Tijuana office
International Litigation and Arbitration track record: Member of Baker & McKenzie Global Dispute resolution practice group. Member of Arbitration Commission of the Mexican Chapter of the International Chamber of Commerce. Former member of the NAFTA 2022 Committee on Private Commercial Disputes.
Contact: [email protected]
