Transcript Alternative Dispute Resolution: Basic Concepts VICHAI ARIYANUNTAKA 11/7/2015 Alternative Dispute Resolution V. Conventional (Traditional) Dispute Resolution ADR • Negotiation • Conciliation, Mediation • Arbitration Conventional(Traditional)Dispute Resolution • Litigation, Adjudication 11/7/2015

Alternative Dispute
Resolution: Basic Concepts
VICHAI ARIYANUNTAKA
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Alternative Dispute Resolution V.
Conventional (Traditional) Dispute
Resolution
ADR
• Negotiation
• Conciliation, Mediation
• Arbitration
Conventional(Traditional)Dispute Resolution
• Litigation, Adjudication
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“It is almost a truism to state that
arbitration is better than litigation,
conciliation better than arbitration,
and prevention of legal disputes
better than conciliation”.
Clive Schmitthoff
Export Trade, The Law and
Practice of International Trade
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Criteria of Effective Dispute
Resolution Mechanism
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Fairness
Neutrality
Expertise
Speediness
Expenses, cheap or costly
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Criteria of Effective Dispute
Resolution Mechanism
(Continued)
• Preservation of Relationship
• Bad Publicity, open court with members of
the press present
• Effective Enforcement, particularly outside
the court’s own jurisdiction
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Reed Tradex Exhibition and Conference Co.
Ltd. v. Miller Freeman (Thailand) Co. Ltd.
“METALEX 2000”
16 – 19 NOVEMBER 2000 BITEC
BANGNA
“METALTECH”
16 – 19 NOVEMBER 2000 QUEEN
SIRIKIT CONVENTION HALL
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Alternative Dispute Resolution in IP
Disputes
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Roger Fisher “Getting to Yes”
Don’t Bargain Over Positions
Separate People from the Problem
Focus on Interests, Not Positions
Invent Options for Mutual Gains
Insisting on Objective Criteria
BATNA – Best alternative to negotiated
agreement
• Win/Win Solution
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Seven-elements on negotiation
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Interests
Options
Alternatives
Legitimacy
Communication
Relationship
Commitment
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Conciliation
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without prejudice,
confidentiality,
caucus
Beware of limitation period
Neutrality
Dealing with impasse
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ARBITRATION
• New York Convention for the Recognition and
Enforcement of Foreign Arbitral Awards 1958
(The New York Convention 1958)
• Cambodia and the New York Convention
• Accession: 5 January 1960
• Entry into force 4 April 1960
• Implementation and domestic law on arbitration
• The UNCITRAL Model Law on Arbitration 1985
provides a world standard
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Establishment of an Institutional
Arbitration Centre in Phnom Penh
• Ad Hoc Arbitration and Institutional
Arbitration
• Institutional Arbitration with its own rules:
See UNCITRAL Conciliation Rules and
UNCITRAL Arbitration Rules
• Government
sponsored
private
institution?
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Establishment of an Institutional Arbitration
Centre in Phnom Penh (Continued)
• Some of the Arbitration Centres
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ICC (International Chamber of Commerce) -Paris
London (London Court of International Arbitration)
AAA (American Arbitration Association) – New York
CIETAC (China International and Economic Trade
Arbitration Commission)
– Singapore (SIAC) Hong Kong (HIAC) Kuala Lumpur
(AALCC)
– Vietnam, Laos, Bangkok
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MODEL CONCILIATION CLAUSE
Where, in the event of a dispute arising out of
or relating to this contract, the parties wish to
seek an amicable settlement of that dispute by
conciliation, the conciliation shall take place
in accordance with the UNCITRAL Conciliation
Rules as at present in force.
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MODEL ARBITRATION CLAUSE
Any dispute, controversy or claim
arising out of or relating to this contract,
or the breach, termination or invalidity
thereof, shall be settled by arbitration in
accordance
with
the
UNCITRAL
Arbitration Rules as at present in force.
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NEGOTIATION
Professor Roger Fisher, Negotiation
Project, Harvard Law School.
“GETTING TO YES” paper back
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Don’t bargain over position
Separate people from the problem
Focus on interests, not positions
Invent options for mutual gains
Insist on objective criteria
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NEGOTIATION: Simulative
Exercise
• Know your “BATNA”
• Best alternative to negotiated agreement
• Seven Elements
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Interests
Options
Alternatives
Legitimacy
Communication
Relationship
Commitment
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Conciliation V. Mediation
• Different role of a conciliator and a
mediator
• Active V. Passive
• Judge as a mediator: Common Law takes
different attitude from Civil Law
• Adversarial system V. Inquisitorial System
• Consent by parties
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Guidelines: Opening statement by
the mediator (Conciliator)
• Introductions – conciliator to chair
the meeting
– Introduce yourself, Thank the parties for coming
– Ask each party to introduce themselves- name,
title and position
• Explain your role and the Process
– Role as a neutral, not a decision-maker, not to
evaluate, not to give legal advice
– Dealing with impasse
– Maintenance of neutrality
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Some Techniques in Conciliation
• Request everybody to sign
confidentiality Agreement
• without prejudice agreement
• Request consent to hold caucuses
• Maintain neutrality: never in the
affirmative, ask questions instead
• Impasse: Go to the Balcony
• Crack a joke!
• Know your BATNA: Best Alternative to
Negotiated Agreement
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UNCITRAL’S Model Law on Conciliation
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Adopted by the Commission on 24 June 2002 at the
New York Session
• Suspension of limitation period: An interesting
issue
• (1) When the conciliation proceedings commence, the
running of the limitation period regarding the claim that
is the subject matter of the conciliation is suspended.
• (2) Where the conciliation proceedings have
terminated without a settlement agreement, the
limitation period resumes running from the time the
conciliation
ended without a settlement agreement.20
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WTO Understanding on Rules
and Procedures Governing the
Settlement of Disputes (1994)
• Apply to settlement of disputes between
Members (of WTO) concerning their rights
and obligations under various Agreements
(covered agreements) made between them
(Art. 1)
• DSB: Dispute Settlement Body (Art. 2)
• Prompt settlement of dispute essential to
effective functioning of WTO and maintenance
of a proper balance between rights and
obligations of Members (Art. 3 para 3)
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WTO Understanding on Rules and
Procedures Governing the Settlement of
Disputes (1994) (Continued)
Dispute Resolution Mechanism under
WTO
• Consultation (Art. 4)
• Request in writing, give reasons, identify
measures and legal basis (4)
• Consultation shall be confidential, and
without prejudice to future proceedings
(6)
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WTO Understanding on Rules and
Procedures Governing the Settlement of
Disputes (1994) (Continued)
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Good
Offices,
Conciliation
and
Mediation (Art. 5)
• Parties may begin or terminate the
procedure at any time (3)
• Director-General may ex officio offer
good offices, conciliation or mediation to
assist Members to settle a dispute (6)
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WTO Understanding on Rules and
Procedures Governing the Settlement of
Disputes (1994) (Continued)
• Establishment of Panels (Art. 6)
• Request in writing to DSB, indicate whether
consultations were held, identify the measures
at issue, legal basis of complaint, terms of
reference
• Standard terms of reference “…to make such
findings as will assist the DSB in making the
recommendations or in giving the rulings
provided for in the agreement.”
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WTO Understanding on Rules and
Procedures Governing the Settlement of
Disputes (1994) (Continued)
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Composition of Panels (Art. 8)
Independence, experience and diverse
background
Citizen of parties shall not serve (3)
Panel of 3, unless 5 is agreed upon (5)
Dispute between developing and developed
country shall include at least one panelist
from developing country (10)
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WTO Understanding on Rules and
Procedures Governing the Settlement of
Disputes (1994) (Continued)
• Panelists serve in their individual
capacities, not as government or
organization representatives (9)
• Panelists’ expenses borne by WTO
budget (11)
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WTO Understanding on Rules and
Procedures Governing the Settlement of
Disputes (1994) (Continued)
• Composition of Panels (Art. 8)
• Independence,
experience
and
diverse
background
• Citizen of parties shall not serve (3)
• Panel of 3, unless 5 is agreed upon (5)
• Panelists serve in their individual capacities, not
as government or organization representatives (9)
• Panelists’ expenses borne by WTO budget (11)
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Thank YOU
• FOR COMMENTS PLEASE CONTACT:
[email protected]
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