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Resolution in a neutral forum
You have been in a conference room in your lawyer’s office for the whole day,
negotiating a crucial international contract. Term by term, detail by detail, the lawyers
have argued it out. Someone says: ‘What are we going to put in for dispute resolution?’
When you started the negotiations, you thought that the deal was a certain money-spinner
for both parties, so no disputes could arise. Now you are not so sure. So what do you say?
What do your lawyers advise? Ideally, you might want to be able to have recourse to the
courts in your own country: the other party would probably like to do the same in its home
country. Neither is acceptable to the other, for fear of home-team advantage or even local
bias.
The answer is to opt for arbitration. This is not really a difficult decision, and that is why
arbitration is the recognised way of resolving international commercial disputes. For at
least a century, it has been the dominant force in dispute resolution in areas such as
shipping, commodities and construction. You can opt for a neutral forum and have a panel
of three arbitrators, one chosen by each party, and the third (the chairman) chosen either
by the parties or the two party-appointed arbitrators. In addition, you can keep your
disputes away from the public eye, because arbitration takes place in private, unlike
litigation in the court. The main centres for international arbitration are: Paris, London,
Geneva, Stockholm, New York, Hong Kong and Singapore. Which is used depends on
the background and businesses of the parties. Stockholm, for example, was always the
place for arbitrating east-west trade disputes, London for shipping and commodities.Singapore looks set for a busy time in the coming months and years after the Asian financial crisis. These locations, and the arbitration centres and lawyers working there,
compete intensely. Arbitration bodies try hard to get their standard arbitration clause put
into people’s contracts, so they have a captive market once disputes arise. They do this
by publicising their activities and their rules.
What they are looking for is ‘name recognition’. In Europe, Paris (home of the
International Chamber of Commerce and its rules) probably has the best name
recognition, followed by London (home of the London Court of International
Arbitration), and Geneva. What people look for in an arbitration is speed, cost
effectiveness, confidentiality and reliability of the arbitrators and hence their decisions.
The choice of venue involves a complex balancing of a number of factors:
o the availability of good experienced arbitrators
o the availability of good experienced arbitration lawyers, and expert witnesses such
as accountants and engineers
o the cost of these people
o the support or otherwise that the local legal system gives to arbitration. (For
example, if the arbitration gets bogged down as a result of delaying tactics by one
party, what powers does the arbitrator, or court, have to speed things up? Will the
courts readily interfere or overturn arbitrators’ decisions?)
o accessibility − basic things like flight access, good facilities (some of the best are
now in the Gulf states), administrative back-up, good telecommunications, IT
support and even climate.
National legislation also has to lend its support to such an important economic activity as
arbitration. England has taken steps to improve English arbitration law in the form of the
Arbitration Act 1996, which came into force at the beginning of 1997.