International Arbitration

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International Arbitration

• Ronnie King, Head of Arbitration Practice
• Ben Giaretta, Head of Arbitration in Asia

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Overview

• The nature of arbitration
• The reasons for choosing arbitration over
  litigation
• How to draft an arbitration clause

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Arbitration an alternative to litigation

• Consensual
• Less formal than litigation
• A sole arbitrator or panel of three arbitrators
  decides the dispute
• Parties choose their procedural rules
• Can be adversarial or inquisitorial
• Final and binding arbitration award

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Reasons for choosing arbitration

• Flexibility
• Neutrality
• Privacy
• Finality
• Expertise
• Enforcement

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New York Convention
Source http//plc.practicallaw.com/0-376-2181
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Enforcing English judgments
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Disadvantages

• Speed
• Cost
• Multiple parties
• Limited rights of challenge/appeal

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Drafting the arbitration clause initial
considerations

• Which arbitral rules should be used?
• Where should the arbitration take place?
• How many arbitrators?

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Choosing your arbitral rules

• Ad hoc vs. institutional
• Features of ad hoc
• No institution
• Common to use UNCITRAL Rules
• Features of institutional arbitration
• Ready made rules and arbitration clause
• Better regulation of the arbitration
• Independent review of awards

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Well-known arbitral institutions
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Choosing the seat of the arbitration

• Level of court interference
• National court rules
• Is the dispute arbitrable?
• Challenging the award
• Enforceability of the award

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Choosing the number of arbitrators

• One or three?
• Sole arbitrator is less expensive
• Panel of three for high value disputes
• Industry or particular expertise required?

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Choice of law

• Governing law of the contract
• Procedural law of the arbitration

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Sample arbitration clause

• Any dispute arising out of or in connection with
  this contract, including any question regarding
  its existence, validity or termination, shall be
  referred to and finally resolved by arbitration
  under the LCIA Rules, which Rules are deemed to
  be incorporated by reference into this clause.
• The number of arbitrators shall be specify one
  or three.
• The seat, or legal place, of arbitration shall be
  nominate a city or country. The venue of the
  arbitration hearing is to be in specify city or
  country.
• The language to be used in the arbitral
  proceedings shall be specify a language to be
  used.

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Additional elements

• Confidentiality clause
• Unless expressly agreed otherwise, the parties
  undertake to keep confidential all awards and
  orders in their arbitration together with all
  materials in the arbitral proceedings created for
  the purpose of the arbitration and all other
  documents produced by another party in the
  arbitral proceedings not otherwise in the public
  domain, save to the extent that disclosure is
  required of a party by a legal duty, to protect
  or pursue a legal right or to enforce or
  challenge an award in legal proceedings before a
  state court or other juridical authority.

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Additional elements

• Excluding rights of appeal
• All awards shall be final and binding on the
  parties. By agreeing to arbitration under this
  clause the parties waive irrevocably their right
  to any form of appeal, review or recourse to any
  state court or other judicial authority, insofar
  as such waiver may be validly made.

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International Arbitration

• Ronnie King, Head of Arbitration Practice
• Ben Giaretta, Head of Arbitration in Asia