Transcript Conflict Resolution - Villanova University

Conflict Resolution
Basic Forms of Conflict Resolution
Litigation
Alternate Forms of Dispute Resolution



Negotiation
Mediation
Arbitration
Advantages of ADR over
Litigation
 Less expensive
 Less time consuming
 Parties can choose the person who will preside
 Might prevent adverse publicity
 Preserve confidentiality
 Serves to preserve relationship between the
parties
Problems with Arbitration
 Unpredictable: Not required to follow previous





cases
Lack of legal training of some arbitrators.
Absence of written opinions.
No standard rules to follow
No Discovery
Limited or no appeal





Fed. Arb. Act. Sec. 10
Corruption, fraud or other undue means
Arbitrator exhibited bias or corruption
Refusal to postpone hearing, hear evidence
Arbitrator exceeded his/her powers
Arbitration
Resolution of a dispute by a neutral third
party(s)
Arbitrator not constrained by precedent, as
is a judge.
Award is legally binding.
Limited of no Appeal (Finality)
Methods of Securing Arbitration
Binding arbitration clause in contract
More than 95% of collective bargaining
agreements have such clauses.
Statute
Submission agreement
A written contract which can be entered into
at any time.
Methods of Securing Arbitration
Court Annexed Arbtration
Compulsory by court rule
Lawsuits below a certain amount of damages
($50,000.) must first be heard at an arbitration
hearing.
Automatic right of appeal to trial
International Dimensions of
ADR
ADR is highly favored internationally.
New York Convention
Makes arbitrators’ awards enforceable in losing party’s
country.
U.S. policy favors arbitration of international disputes.
Federal Arbitration Act
Section 3
If any suit or proceeding be brought in any of the courts
of the United States upon any issue referable to
arbitration under an agreement in writing for such
arbitration, the court … shall onapplication of one of
the parties stay the trial of the action until such
arbitration has been had in accordance with the
terms of the agreement,
Title 9, US Code, Section 1-14, enacted February 12,
1925
New York Convention
United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards
(New York, 10 June 1958)
To date about 160 nations have adopted the Convention
Article I
1. This Convention shall apply to the recognition and
enforcement of arbitral awards made in the territory
of a State other than the State where the recognition
and enforcement of such awards are sought, and
arising out of differences between
persons, whether physical or legal. It shall also apply
to arbitral awards not considered as domestic awards
in the State where their recognition and enforcement
are sought.
Article II
Each Contracting State shall recognize an
agreement in writing under which the parties
undertake to submit to arbitration all or any
differences which have arisen or which may
arise between them in respect of a defined
legal relationship, whether contractual or not,
concerning a subject matter capable of
settlement by arbitration.
Article III
Each Contracting State shall recognize arbitral
awards as binding and enforce them in accordance
with the rules of procedure of the territory where the
award is relied upon, under the conditions laid down
in the following articles. There shall not be imposed
substantially more onerous conditions or higher fees
or charges on the recognition or enforcement of
arbitral awards to which this Convention applies than
are imposed on the recognition or enforcement of
domestic arbitral awards.
Effects of New York Convention
Attracts and protects foreign investment since
efficient global trade requires effective
international dispute resolution.
Provides a reliable mechanism to enforce
binding resolution of business disputes
without interference from local courts.
Additional Conventions and
Treaties
Convention on the Settlement of Investment
Disputes Between States and Nationals of
Other States, "ICSID Convention" or
"Washington Convention").
North American Free Trade Agreement
("NAFTA").
Conventions and Treaties
Inter-American Convention on International
Commercial Arbitration ("Inter-American
Convention") is yet another key multilateral
convention. The United States and 18 other
OAS countries are signatories
Contractual Precaution
1. Insure all parties to contract are based in
countries which are signatories of the N.Y
Convention
2. Specify place of appeal and limit reasons
to those listed in N.Y. Convention.
3. Examine court system of country to
determine likelihood of court interference.
(Russian Courts likely to interfere)
4. Consider insurance to cover loses.
5. Select place of arbitration considering law
governing conduct of the arbitration.
•Commonly used venues: Paris; London,
Geneva; Stockholm; The Hague,
Netherlands; Vienna
International Arbitration
Associations
American Arbitration Association (AAA)
ICC International Court of Arbitration - The
International Court of Arbitration of the
International Chamber of Commerce
(Paris, France).
ICCA
The International Council for Commercial
Arbitration.
ICSID
The International Centre for the
Settlement of Investment Disputes, World
Bank, Washington, USA. Created by the
Washington Convention.
LCIA
The London Court of International
Arbitration.
Permanent Court of Arbitration
(The Hague, The Netherlands)
UNCITRAL
The United Nations Commission on
International Trade Law (Vienna)
WIPO
The World Intellectual Property Organization
(Geneva)
Current Issues
EEOC v Waffle House
A private agreement between an
employer and an employee to arbitrate
employment – related disputes does not
prevent the the Equal Employment
Opportunity Commission from pursuing
victim-specific relief, i.e. back pay,
reinstatement and monetary damages