MONDAY 22 JULY 2013
10:00 -10:30 a.m. Welcome & Introduction
10:30 - 11:30 a.m. Introduction to International Commercial Arbitration
- Introduction to international commercial arbitration
- Why choose arbitration over litigation
- Ad hoc vs. institutional
- United Nations Convention
- Important Terminology
This session will introduce international arbitration as a dispute resolution process and distinguish it from court litigation. We will also compare and contrast the types of international arbitration, such as ad hoc and institutional arbitration. We will conclude by explaining the primary method of enforcing commercial arbitration awards through the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).
12:00 - 1:00 p.m. Introduction to International Commercial Arbitration (continued)
1:00 - 3:00 p.m. Lunch Break
3:00 - 4:00 p.m. International Arbitration Doctrines
- International Arbitration Agreements
- Separability doctrine
- Competence-competence
- Validity and non-arbitrability
This session will address threshold issues that arise when determining the enforceability and interpretation of an arbitration clause. We will explain why the validity of the arbitration agreement is a separate determination from the validity of the underlying substantive contract and why the arbitral tribunal has the power to determine its own jurisdiction. We will also address issues involving the intersection of international and domestic law, such as determining the validity of the arbitration agreement itself and determining whether a specific subject matter or claim may or may not be arbitrated.
4:15 - 5:30 p.m. International Arbitration Doctrines (continued)
TUESDAY 23 JULY 2013
10:00 - 11:30 a.m. The Parties’ Choice
- Overview
- Arbitral Seat
- Applicable Law
- Language
- Arbitrator qualifications
- Number of arbitrators
- Choice of arbitration rules/institution
This session will address the quintessential freedom of choice that parties have to determine what shape their arbitral process will take. In addition to choosing their arbitrators, parties are free to determine the location, language, number of arbitrators and applicable law for their arbitration, as well as many other parameters. This freedom of choice is one of the most attractive features of international arbitration.
12:00 - 1:00 p.m. The Agreement to Arbitrate
- Types of Agreements
- Indispensable elements
- Generally recommended elements
- Pathological elements
This session will dissect the wording of the arbitration agreement and examine its various components and elements. We will discuss types of arbitration agreements such as the contractual clause, the “compromis,” the ad hoc arbitration agreement and the institutional arbitration agreement. We will revisit the parties’ choices and examine how those choices are memorialized in writing in the arbitration agreement. We will also examine advanced elements of arbitration clauses, such as multi-staged dispute resolution processes, conflicts of law provisions, amiable compositeur, ex aequo et bono, evidentiary provisions, cost provisions and multi-party provisions. Finally, we will discuss what not to include in an arbitration clause and how pathological elements in arbitration clauses may affect the validity of the agreement or the procedural steps of the arbitration.
1:00 - 3:00 p.m. Lunch Break
3:00 - 4:30 p.m. Practical Session
Practical Session on drafting the arbitration agreement based on the ICC Rules, including discussing a handout of pathological clauses.
WEDNESDAY 24 JULY 2013
10:00 - 11:00 a.m. The Arbitral Tribunal
- Selection of Arbitrators
- Number of Arbitrators
- Qualifications
- The Arbitrators’ Mission
- Scope of arbitrator authority
- Rights and Responsibilities
- The appointment process
- Impartiality, Independence, Availability
- Challenges to arbitrators
This session will address how arbitrators are selected. We will revisit the parties’ choices memorialized in the arbitration clause and examine how those choices are implemented during the arbitrator selection process. We will also examine the mission and authority of an arbitrator in contrast to the purview of a state court judge. We will discuss issues relating to bias, impartiality, independence and availability of arbitrators. We will examine the rights and responsibilities of the arbitrators vis-a-vis the rights and responsibilities of the parties. Finally, we will discuss how and why an arbitrator may be challenged and ultimately removed from the arbitral tribunal.
11:30 a.m. - 1:00 p.m. The Arbitral Tribunal (continued)
1:00 - 3:00 p.m. Lunch Break
3:00 - 4:00 p.m. Roundtable Discussion with In-House Counsel
During this session, in-house counsel from various corporations will discuss their experience and approach to dispute resolution. In particular, they will provide their views on arbitrator selection and their companies’ particular requirements, if any, for choosing arbitrators.
4:15 - 5:00 p.m. Roundtable Discussion (continued) Program
THURSDAY 25 JULY 2013
10:00 - 11:00 a.m. Conducting the Arbitration
- The Request
- Terms of Reference
- Hearing and Evidence
- Discovery
- Experts
- Conservatory and interim measures
- Costs
This session will address how parties commence an arbitration and how the arbitral procedure is conducted. We will discuss the ICC arbitration process step-by-step, including the Request for Arbitration, the Terms of Reference, cost calculations, the hearings and the presentation of evidence. We will also address party requests for conservatory or interim measures.
11:30 - 1:00 p.m. Conducting the Arbitrations (continued)
1:00 - 3:00 p.m. Lunch Break
3:00 - 4:00 p.m. Practical Session on Cross-Examination
- Comparative approach: EU vs. US
- Techniques
- Comparison to litigation
This session will delve deeper into the presentation of evidence. We will compare and contrast how various legal traditions handle questioning witnesses, with a particular emphasis on comparing and contrasting the practices of the European Union and the United States. During this session, we will present a brief mock cross-examination of a witness.
4:15 - 5:00 p.m. Practical Session on Cross-Examination (continued)
FRIDAY 26 JULY 2013
9:30 - 11:00 a.m. The Arbitral Award
- Need for Reasoning in the Award
- Scrutiny of the Award
- Recognition and Enforcement
- Setting Aside an Award
- UN Convention and the public policy exception
- Review and Standards of Review
This session will address the final stages of an arbitration, including the rendering of the arbitral award and enforcement procedures. The ICC requires that arbitrators state reasons for their decisions. In addition, the ICC reviews each and every arbitration award during its scrutiny process to ensure consistency, quality and thoroughness. After the award has been issued, the parties will seek recognition and enforcement of the award. What are the parties’ options for enforcing or for setting aside or blocking the enforcement of the award? We will look to the New York Convention for answers and explain the standards of review that a domestic court may or may not use when determining whether to grant or deny the recognition and enforcement of an international arbitration award.
11:30 a.m. - 1:00 p.m. The Arbitral Award (continued)
1:00 p.m. Closing of Seminar; Final Remarks