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This edtion is led by


















Tom Sager
Senior Vice President and
General Counsel
DuPont


















David Burt
Corporate Counsel
DuPont 


Law Firm Panel Chair


















Janet Whiting
Partner
Corrs Chambers Westgarth



 

Cost-effective and innovative dispute resolution around the world

Led by Tom Sager, Senior Vice President and General Counsel, and David Burt, Corporate Counsel, at chemical conglomerate DuPont. Chairing the law firm panel for this edition is Janet Whiting, Partner with law firm Corrs Chambers Westgarth in Melbourne, Australia.

Resolving disputes internationally has become a major risk factor for multinational corporations and banks. Therefore cost-effective and innovative litigation, arbitration, mediation and enforcement solutions require forward-thinking lawyers mindful of pressure on clients to economise legal spend. This is now a fact in developed countries, but as business everywhere expands into often unchartered territory of the emerging markets such as China, Russia, India, South America etc - where 'rule of law' as recognised in developed countries - are not cast-iron guaranteed, the challenge becomes more difficult.

 

Tom and David's questions for each jurisdiction are:


Question 1) In recent years, what is your experience as to the speed and economy of international arbitration? Do you perceive transnational arbitration as overburdened by jurisdictional fights, excessive discovery, motions practice and challenges to awards? Conversely, do you perceive any positive trends toward more efficient process?

Question 2) What are the most effective means a multinational firm can use to achieve prompt, fair and efficient dispute resolution through international arbitration? What active measures are companies taking to make the process efficient? Are you willing to sacrifice some discovery and even accuracy or award, to get in return a faster and more cost efficient conclusion?

Question 3) Mediation is widely perceived among US lawyers as a best practice to achieve controlled and mutually acceptable resolution of business disputes.  Interest in mediation has slowly spread through Asia Pacific, Latin America and Europe, Middle East, Africa.  What experiences can you share about mediating disputes in those regions? Are innovative approaches needed to secure agreement to mediate? How do cultural factors operate during a mediated negotiation in those regions, and what advice would help foreign lawyers accommodate local norms?

Question 4) After securing an arbitral award and requiring payment by a respondent in the developing world, the next step is to get a local court to recognize and enforce the award under the New York Convention of 1958.  Please share your cautionary tales (including worst experiences) in attempting enforcement, and any advice on how to avoid the same trouble.

 

The legal experts joining Janet on her panel so far are:

Australia: Janet Whiting, Partner, Corrs Chambers Westgarth

Brazil: Veirano Advogados (Coming soon...)

Canada: Nick Rodrigo, Partner, Davies Ward Phillips & Vineberg
 
Germany: Hengeler Mueller (Coming soon...)
 
India: AZB Legal (Coming soon...)

New Zealand: Ian Gault, Partner, and Sophie East, Senior Associate, Bell Gully



DISCLAIMER: Any opinions, statements or other information expressed in TalklawGlobal by the respective author(s) do not necessarily state or reflect those of TalklawMedia, the chairperson or his employer, the firm to which the author belongs or other panellists. The information submitted by the legal experts is for educational purposes only and does not create an attorney-client relationship between the reader, their firm, or any lawyer in their firm, and does not prevent any lawyer in any firm on this panel, from representing a party in any matter or manner (including taking a different position to that which he/she might have expressed or endorsed in TalklawGlobal) or serving as arbitrator, mediator, dispute board member or in any similar position based on the expression of his/her opinions on the various subjects published on TalklawGlobal. No information published on TalklawGlobal may be quoted or reproduced elsewhere without the prior written consent of the author and TalklawMedia.




























Janet Whiting
(biography)
Partner
Corrs Chambers Westgarth
Melbourne, Australia
Tel: +61 3 9672 3449
janet.whiting@corrs.com.au





 


Australia:

Janet Whiting, Partner, Corrs Chambers Westgarth


Answer 1) Initially, the advantages of international arbitration were speed, cost efficiencies and confidentiality. A view which is now having increased acceptance is that it’s only real advantage today is confidentiality.

Arbitrations can be cumbersome, lengthy and expensive. Arbitrations assume the parties are generally able to agree the process, members, timing etc. Parties who are seriously in dispute are unlikely to have the same views on timing or outcome. Any procedural steps that are viewed as giving an advantage to one party are now regularly invoked, regardless of adverse impact to timing and cost.

The effectiveness of the arbitration is very dependent on the arbitrators appointed and how they manage/control the process. The identity of the arbitrators is key as to whether the processes within the arbitration will be tightly controlled versus parties being able to employ strategies to derail and delay the process. Arbitrations have become very process oriented and expensive once the administrative costs, the costs of the arbitrators and the legal costs are combined.

The arbitration experience is very expensive for small disputes or issues with limited scope of facts and documents. Remedies such as pre trial discovery are not generally available in arbitrations. Such an application can give a party certainty as to whether or not they have a valid claim and can be a relatively simple application in a court process. To proceed with such an application in an arbitration is difficult. The whole arbitration has to be convened before one party has a clear idea as to whether or not the action should be brought. Different options need to be included to obtain better outcomes.

In Australia, the courts now run very efficient, specialist lists that mean the case is managed by the trial judge from the time it is issued. Scheduling is tight. It is not unusual for large matters to be heard within 18 months of issuing.

The Australian experience in arbitration is that it is standard for the timetables to be derailed to suit































Nick Rodrigo
(biography)
Partner
Davies Ward Phillips & Vineberg
Montreal, Canada
Tel: +001 514 841 6548
nrodrigo@dwpv.com

 


Canada:

Nick Rodrigo, Partner, Davies Ward Phillips & Vineberg


Answer 1) Our recent experience has been mostly positive with respect to the speed of international arbitration when litigating in more traditional, well-established fora such as the ICC International Court of Arbitration. In these cases we do not typically find that the arbitration process is overburdened by jurisdictional fights, excessive discovery, motions and challenges to awards, etc. Our typical experience is that the arbitration process works reasonably well, but the speed and efficiency is determined by the arbitrators themselves. In Canada we find that the business of arbitration is becoming increasingly professionalized, and that the various arbitration chambers compete with each other to build a reputation as offering the fastest, most efficient arbitration procedure. As a result, most arbitrators are conscious of imposing relatively tight deadlines on the various steps in the arbitration, subject to the reasonable demands of the parties, and forcing the parties to stick to the schedule and keep the process on track. The tighter scheduling that arbitration often offers means that a resolution can be obtained more quickly than in the ordinary court process, but it also means that the pace and the associated expense of the action is more intense, and squeezed into a shorter timeframe.

On the other hand, when forced to arbitrate before domestic arbitral tribunals in certain countries with a less established tradition of impartiality and rule of law (ie. in parts of Africa and Asia), our experience has been less positive. In these cases, we have confronted challenges to the jurisdiction of the arbitrators which wound up before the local civil courts, with all of the easily foreseeable delays, expense and uncertainties that caused the parties to choose arbitration over litigation in the domestic courts in the first place. In short, when arbitrating according to local rules before domestic tribunals (as opposed to well-established international tribunals), we sometimes find that the entire arbitration process can be short-circuited and thrown back into the domestic courts that the parties were originally seeking to avoid.

With respect to the economy of the process, in general we find that when the process goes as intended, arbitration can be faster than the civil litigation process before the civil courts, but it is very rarely less expensive.


Answer 2) The greatest favour that a party can do itself in helping to ensure prompt, fair and efficient dispute resolution through international arbitration is to put a lot of advance thought and care into the arbitration provisions of their agreement. Parties should have an idea of what rules and what arbitration tribunal they wish to use, and








 















Ian Gault
(biography)
Partner
Bell Gully
Auckland, New Zealand
Tel: +64 21 640 508
Ian.Gault@bellgully.com



















Sophie East
(biography)
Senior Associate
Bell Gully
Auckland, New Zealand
Tel: +64 21 899 619
Sophie.East@bellgully.com

 



New Zealand:

Ian Gault, Partner, and Sophie East, Senior Associate,
Bell Gully


Answer 1)
The speed and economy of international arbitration versus litigation depends in part upon the efficiency of the arbitrators, parties and counsel, and even more upon the national court system to which arbitration is being compared. In our view, litigation of a complex commercial dispute in a New Zealand court would be comparable in terms of speed and cost to having the matter determined by way of international arbitration. For example:

(a) Although most of the formalities of litigation are absent in international arbitration, it is still necessary in an international arbitration to engage in a substantive written phase involving establishment of the arbitral procedure followed by the sequential submission of witness statements, expert reports and briefs accompanied by all relevant documents as exhibits. This is often as time-consuming and expensive as, for example, the pre-trial phase of New Zealand litigation (encompassing drafting pleadings, preparing witness and expert briefs, and arranging a common bundle of documents for trial).
 
(b) There is a commonly held belief that by selecting international arbitration, parties avoid the costs of discovery. However, in our experience it is usual for parties engaged in large commercial disputes to want some level of document disclosure from the other side, whether or not the matter is arbitrated. The court discovery rules have recently changed in New Zealand to provide for narrower and more targeted discovery which is not dissimilar to the IBA Rules often invoked in international arbitration.
 
(c) In New Zealand, a reasonably sized commercial dispute which required a two week trial would likely get a fixture for that trial in about 12-15 months from the time the proceeding was commenced (assuming no major hold ups in discovery, interlocutories (the equivalent of motion practice) etc). Although in international arbitration there are not the same challenges in terms of getting time on a court calendar, it can nevertheless be challenging to find a suitable hearing date where a three member tribunal consisting of prominent (therefore busy) arbitrators has been appointed.
 
(d) Decisions of the New Zealand High Court may be appealed to the Court of Appeal or further (with leave) to the Supreme Court, which may add additional time. However, international arbitration is increasingly subject to collateral or post-award challenge and parties cannot count on international arbitration being resolved without judicial involvement.

In short, our experience is that the speed and economy of international arbitration is generally comparable to resolving an equivalent dispute in the New Zealand courts (at least for complex commercial disputes – for smaller disputes, the cost of paying arbitrators may be out of proportion to the claim, and court fees will be more reasonable).

The added benefits of international arbitration are not directly responsive to the question posed, but for completeness include: (i) neutrality, i.e., rather than submitting to the jurisdiction of one of the party’s courts, disputes may be resolved in a neutral venue with arbitrators appointed of neutral nationality; (ii) flexibility (the parties are free to agree on a process that best suits them for resolving the dispute, and are not bound by strict rules of evidence or court procedures); (iii) confidentiality (unlike court hearings, arbitrations are conducted in private and where New Zealand is the place of arbitration, that confidentiality is preserved in New Zealand by section 14 of the Arbitration Act 1996); and (iv) enforceability (arbitral awards are enforceable in most countries around the world by virtue of the New York Convention, and are in general easier to