Arbitration and Mediation in International Business

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1 International Arbitration Law Library Arbitration and Mediation in International Business Second Edition Christian Bühring-Uhle andfor the Second Edition Lars Kirchhoffand Gabriele Scherer KLUWERLAW INTERNATIONAL

2 Contents Foreword to the Second Edition Preface by the Authors Abbreviations v xv xvii Introduction 1 PART ONE: CHALLENGES OF CONFLICT MANAGEMENT Chapter 1 Need for Conflict Management in International Business 5 I. Globalization of the World Economy 5 II. Vulnerability of International Business Relations 6 1. Increasing Complexity of International Business Transactions 6 2. Particular Vulnerability of International Business Relations 6 a. Economic Factors 7 b. Financial and Monetary Factors 7 c. Political Factors 7 d. Legal Factors 7 e. Interpersonal Factors 8 III. Reduced Effectiveness of Contractual Planning 11 IV. Problems of Litigating International Disputes in National Courts Jurisdiction Conductof Procedure 16 a. Neutralityof Forum 17 b. Fundamental Differences between Civil Law and Common Law Procedure 17 c. Judicial Conflicts of Gathering Evidence Abroad Substantive Law TheEffectofForeign Judgments 25 V. Conclusion: Need for Conflict Management 27

3 ARBITRATION AND MEDIATION IN INTERNATIONAL BUSINESS PART TWO: INTERNATIONAL COMMERCIAL ARBITRATION Chapter 2 Background, Legal and Institutional Framework 31 I. Background History Attributes of International Commercial Arbitration 32 a. Adjudication 33 b. Private 33 c. Agreement 33 d. Commercial 33 e. International Types of International Commercial Arbitration 34 a. Specialized Arbitration 34 b. Institutional and Ad Hoc Arbitration 35 c. Arbitration in Law, Amiable Composition and Arbitration Ex Aequo et Bono 40 d. Contractual Gap Filling / Adaptation by Arbitral Tribunals 40 II. Legal Framework of International Commercial Arbitration National Legal Systems 42 a. The Limits of "Delocalization" 42 b. The Interaction of National Laws 44 c. The Liberalization of National Arbitration Laws 45 d. The Impact of National Legal Systems on Arbitration International Conventions 56 a. The New York Convention 57 b. Other Significant Conventions Advantages of the Legal Framework of International Commercial Arbitration Compared to Transnational Litigation 63 a. Jurisdiction 64 b. Procedure 64 c. Application of Substantive Law 66 d. Effectof Awards Conclusion 67 Chapter 3 The Process of International Commercial Arbitration 69 I. Characteristic Features of the Process Party Autonomy The Blend of Civil and Common Law Elements 71

4 CONTENTS II. The "Typical" Sequence of an International Arbitration Initiation Constitution of the Tribunal Pre-Hearing Phase 75 a. Preliminary Hearing 76 b. Written Phase and Gathering of Evidence Hearings on the Merits 81 a. Scheduling 81 b. Witness Testimony 83 c. Experts 83 d. Pleadings Making of the Award Overall Durationof the Process 85 a. "Typical" Duration 86 b. "Fast-Track Arbitration" Conclusion 88 III. The Cost Structure of International Arbitration Composition of the Costs of Arbitration 89 a. Costs of the Tribunal 89 b. Costs of the Parties How Fees are Calculated 91 a. Fees of Lawyers 91 b. Fees of Arbitrators 91 c. Fees of Arbitration Institutions 94 d. Security Deposits 94 e. Effect of a Settlement on the Fees Allocation of Costs in the Award 96 a. Costs Subject to Allocation 96 b. Principles Governing the Allocation Conclusion: Factors Influencing the Costs of Arbitration 98 IV. Recent Trends in International Commercial Arbitration Modernization of Arbitration Laws Multiparty Constellations Focus on Evidence Increasing Role of Alternative Settlement Techniques Rising Empirical Work on ICA 104 V. Conclusion 104

5 ARBITRATION AND MEDIATION IN INTERNATIONAL BUSINESS Chapter 4 Two Surveys on Arbitration and Settlement 105 I. Design of the Surveys 106 II. Summary of Most Relevant Findings Function, Costs and Delays Settlement and the Role of Arbitrators Combining Arbitration with Mediation 123 III. Conclusion to Part Two 128 PART THREE: ALTERNATIVES TO ARBITRATION Chapter 5 Conflict and Negotiation Theory as a Conceptual Framework for Conflict Management 131 I. Conflict Types of Conflicts Waysof Dealing with Conflict 134 II. Negotiation Interdisciplinary Research and Theory Some Basic Findings and Distinctions 138 a. Integrative and Distributive Bargaining 138 b. Strategie Choice 140 c. The Human Factor in Negotiation 141 d. "Dispute" and "Rule-Making" 148 e. Power in Negotiation 149 f. The Organizational Dimension Prescriptive Approaches 153 a. Principled Negotiation 154 b. Negotiation Analysis 158 c. Comment 164 III. Conflict Management in Context 164 IV. Conclusion 166 Chapter 6 Alternative Dispute Resolution Techniques 169 I. Business ADR in the United States 171 II. Common Features of" Alternative" Techniques Party-Autonomy Flexibility 174

6 CONTENTS 3. Focus on Interests Management Involvement Focus on Relationship Confidentiality Limited Transaction Costs 175 III. Mediation - the Prototype of ADR-Procedures Definition Traditional Mediation vs. Modern Mediation How Modern Business Mediation Works 180 a. Different Stages of the Mediation Process 180 b. Role of Caucuses in Business Mediation 184 c. Various Roles of the Mediator 186 d. Techniques of the Mediator 190 e. Interest-Based and Rights-Based Mediation 193 f. Multiparty Mediation 194 IV. Other ADR Techniques and Combinations Mini-Trials Fact-Finding and Related Procedures Variations of Mediation Variations of Arbitration Early Intervention Mechanisms 201 V. Conclusion: Strengths and Weaknessesof ADR Procedures How Mediation/ADR facilitates settlement Costs and Benefits of Mediation /ADR WhatTypesof Disputes aresuitable for ADR? 209 Chapter 7 Tools and Techniques to support Business Mediation 211 I. MindMapping Basic Concept Application in Mediation 212 II. Litigation Risk Analysis Basic Concept Use in Mediation CaseStudy Comment 219 III. Brainstorming Basic Concept 220

7 ARBITRATION AND MEDIATION IN INTERNATIONAL BUSINESS 2. Application in Mediation 221 Chapter 8 The Legal Framework for (International) ADR 223 I. Model Conciliation and Mediation Procedures ICC ADR AAA Mediation LCIA Mediation UNCITRAL Conciliation World Bank/ICSID Conciliation CPR Minitrial Procedure 228 II. Legal Issues Arising out of International ADR NatureandEffectsofADRClauses 229 a. Ensuring Participation 229 b. Excluding Competing Procedures 231 c. Suspension of Limitation Periods Conducting the Procedure 232 a. Conduct of the ADR Neutral 233 b. Minimum Due-Process Standard The Importance of Back-up Dispute Resolution Processes Maintaining Confidentiality Enforcing the Result Conclusion 236 III. Integrating ADR into Arbitration Framework Initiating / Excluding Competing Procedures Conduct of the Procedure QualityofResults Effective Termination of the Dispute Advantages of Using the Arbitral Framework 241 IV. Conclusion 242 PART FOUR: SYNTHESIS Chapter 9 Designing Procedures for Effective Conflict Management 247 I. The Arbitrator's Dilemma 248 II. Strategies of Integrating the Processes Pre-Arbitral Mediation 251

8 CONTENTS a. Concept 251 b. Comment Post-Arbitration Mediation 254 a. Concept 254 b. Comment Complete Integration: The IBM-FUJITSU Example Mediation Windows 259 a. Concept 259 b. Comment Conclusion 263 III. A Dynamic Approach to Dispute Resolution Process Design The Task of Dispute Resolution Process Design Guiding Principles Basic Elements of the System Dynamics of the System 267 PART FIVE: CONCLUSION 269 Appendix 1: List of Individuais 271 Appendix 2: List of Institutions 279 Bibliography 283 Index 305

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