Transcript www.lacba.org

International Arbitration &
Litigation Strategies
Panel 4: International Arbitration Strategies
January 29, 2008
Los Angeles, USA
Authored by
Presented by
Moderator
Eckart Broedermann
Jeffery J. Daar
Matthew M. Walsh
Liu Yuwu
Ygnacio Reyes-Retana
James H. Broderick
Malcolm S. McNeil
Jeffery J. Daar
Overview: Similar topics as discussed in litigation
Litigation
versus
Arbitration
Institutional
versus ad hoc
arbitration
Other multiNational
treaties
Bilateral
treaties
Miscellaneous
Briefs on
Procedural points
Oral
Hearings
Post Hearing
Brief
Rules/Law on
procedure
Substantive
Law
Rules/Law on
Evidence
Mandatory
Law
Enforcement
First Brief
Statement
initiating the
of Claim
arbitration
Work on
Evidence
Comparison
with
UNCITRAL
Model law
Private
International
Law
Analysis
Analysis of
Respondents
Answer
Forum: location,
location, location
National Arbitration laws
Rules/Law on
Service
Award
Selection of
Arbitrator
Arbitration
clause
New York
Convention
For each of these steps it is important to decide on the right strategy.
Project
Project
Management
Management
Quality
Know How
Management
Management
Cost
Cost
Controlling
Controlling
Coordination
of Liaison
Tasks
with Client
Know How
Coordination
Management
of Coordination
Invoicing
Quality
of Invoicing
Management
CostCost
estimation
estimation
Budget
Budget
Mentality
Research
Research
Mentality
analysis
of Facts
of Facts
analysis
of judge/
Controlling
arbitratorof
Controlling
arbitrator
of Facts
(training)
2
of Facts
(training)
Agenda
I. 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 stage
III. 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 (preselection 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 Arbitrators


Typically 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:



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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
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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:
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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)
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Example: Different understanding of “public policy”
India:
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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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Thank you!
James H. Broderick
[email protected]
Malcolm S. McNeil
[email protected]
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Annex: James H. Broderick
Admitted 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., 1979
Harvard 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. McNeil
Admitted in California (1983), District of Columbia, and U.S. Supreme Court
Loyola Law School, J.D., 1983
Antioch University, B.A., 1980
Married; 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 LLP
444 S. Flower Street, 9th Floor
Los Angeles, CA 90071
213.955.1619
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Annex: Jeffery J. Daar
Admitted in California, 1982
University of California at Davis, J.D., 1982
Claremont Men’s College, B.A., 1979
Married; 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 Brödermann
LL.M. (Harvard); License en droit (Paris); Maîtrise en droit (Paris);
dr. iur. (Hamburg)
Admitted in Hamburg (Germany) and New York (New York)
July 13, 1958
married, 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. Walsh
University of California, Hastings, J.D., 1994
Admitted in California, 1994
Married; 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 Economics
LLB, Renmin University of China
Admitted in the People’s Republic of China
Married, 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 coarbitrator 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]
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