Anti-Arbitration: Get a job, kid!
This is the time of year when law students and young lawyers begin to apply for their summer internships or jobs in international dispute resolution. Many – probably most – will carefully draft their curriculum vitae to show their serious commitment to relevant academic studies, experience in international disputes or with law firms, and participation in recently completed international competitions (mock mediation and arbitrations, and moot courts).
This is, of course, very important in order for their CV’s to be given serious attention. It is the document that will open the door to interviews, and employers will not consider applicants who do not have the right professional backgro [...]
The Unavoidability of Uncertainty: One Lesson from the Recent U.S. Court Ruling in Argentina v. BG Group
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]
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: 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 [...]
Anti-Arbitration: Drafting?
Conferences on arbitration frequently include a session on “drafting” dispute resolution clauses for international contracts. The term drafting is also included in the title of many articles, book chapters, and entire books. While the actual content that follows this topic heading is often helpful, especially for non-specialist in-house counsel and transactions lawyers, the term itself conjures up an idyllic image of the lawyer sitting comfortably at a desk writing out an ideal form of dispute resolution, for peaceful inclusion in the parties’ contract.
If only life were so simple.
The reality is that huge battles are fought over dispute clauses. Contracts can be won and lost on the [...]
