Anti-Arbitration: Would You Prefer a Harmonized Approach or a Just a Better One?
Conventional wisdom holds that one of the virtues of international arbitration is the ability to blend divergent procedures, generally referring to civil and common law traditions. The IBA Rules of Evidence, for example, seek to strike a balance among different legal cultures. “Harmonization” and “flexibility” are the terms commonly used to refer to this mixing of practices.
But if one particular approach can be shown to be superior for certain types of disputes, is employing a different or compromise approach actually sub-optimal?
I confess that I am as guilty as the next person when it comes to promoting the value of harmonization and flexibility when discussing international arbi [...]
Anti-Arbitration: 10 Things To Do Before The Arbitration Gets Underway
Even when I think I know what I’m doing (be it self-confidence or self-deception), I still find checklists can be useful. Sometimes they can help validate or compare processes with others, but mostly they are good at making sure I haven’t forgotten some critical step.
Below is a checklist for when someone – a business client, my boss, or a legal department colleague – has informed me that an arbitration is possible, likely, or has just been filed.
1. Check for any pre-arbitration procedures and assess whether to comply with them
Of course, the first thing any litigator will do when presented with a contractual dispute is to check the contract’s dispute resolution and governing law [...]
Anti-Arbitration: It’s Not Hard to Mediate During Arbitral Proceedings
This month marks two interesting developments in arb/med.
First, as Kluwer wants you to know, they have added a mediation blog in addition to the arbitration blog. Well, it’s about time.
Second, September heralds the much celebrated debut of the ICC’s new “Arbitration and ADR Rules”, at least for people who celebrate such things.
As the name of the volume implies, the ICC is now linking its arbitration and mediation practices, described in the introduction as “two discrete but complementary dispute resolution procedures.”
Again, it’s about time.
From all that has been said and written about arb/med in the field of international dispute resolution, one could be forgiven for thin [...]
Anti-Arbitration: Answers to the Summer Quiz!
Last week’s summer quiz on international arbitration and mediation provoked a happy flurry of answers from around the world from a broad range of practitioners. Before we get to the answers, here are some interesting observations from the empirical data that we unintentionally gathered.
Conclusive Empirical Data about International Arbitration and Mediation Practitioners (“Practitioners”)
As readers may recall, the quiz offered a free lunch or dinner in Florence to the first person to send in a perfect score or closest to it. Based on the objective data acquired via the responses, we can now declare the following with a high degree of certainty:
- International arbitration & mediatio [...]
Anti-Arbitration: The Summer Quiz!
If you live or work somewhere in the northern half of the planet, odds are that at some point this summer you’ll find yourself on a beach, cityscape, mountain, or other scenic destination surrounded with children relaxedly drawing on their coloring pads, and grandparents working attentively at their crossword.
What about those of us who are dedicated dispute resolution professionals? Of course, there is something to be said for reading that Fifth Post-Hearing Submission while at the beach. But until Gary Born’s treatise on International Commercial Arbitration is set to music and performed in Salzburg in some future year, shouldn’t we have some brain candy, too?
Welcome to the Summer [...]
Anti-Arbitration: The Train Has Left the Station
I write this post on a train on the way home from a seminar held by the Milan Chamber of Arbitration (CAM) to introduce a new rule and guidelines that could be seen as a necessary next step in the trend towards greater efficiency in arbitration. Before commenting on where these new developments might take us, however, it is worth observing that not everyone is completely on board with this trend.
One good example is A Few Words on the Tension Between Efficiency and Justice, posted here on June 2, 2011 by José Astigarraga. While accepting in principle that “the arbitral process generally has become too much like litigation, and needs to be more efficient and less costly,” he argues tha [...]
