T H E Q UA RT E R LY M AG A Z I N E O F T H E C H A RT E R E D I N S T I T U T E O F A R B I T RAT O R S
How to draft a reasoned, final award New adjudication laws for Ireland and Malaysia Mediating a race-related dispute Emerging trends in international arbitration Legal round-up www.ciarb.org
What's different about doctors?
HKIAC 280x210.indd 11 RES.04.12.002.indd
22/10/2012 22/10/2012 16:10 16:25
CONTACTS Redactive Publishing Ltd 17 Britton Street, London EC1M 5TP T: +44 (0)20 7880 6200 EDITORIAL T: +44 (0)20 7880 6200 E: email@example.com Editor: Anna Scott Sub editor: Steve Smethurst Art editor: Adrian Taylor Picture editor: Sam Kesteven ADVERTISING Sales executive: James Waldron T: +44 (0)20 7880 6243 E: firstname.lastname@example.org PUBLISHER Steve Grice E: email@example.com PRODUCTION Production manager: Jane Easterman Production executive: Aysha Miah
© THE RESOLVER is published on behalf of the Chartered Institute of Arbitrators (CIArb) by Redactive Publishing Ltd (RPL), 17 Britton St, London EC1M 5TP. This magazine aims to include a broad range of opinion and professional issues and articles do not necessarily reflect the views of CIArb nor should such opinions be relied upon as statements of fact. All rights reserved. This publication may not be reproduced, transmitted or stored in any print or electronic format, including but not limited to any online service, any database or any part of the internet, or in any other format in whole or in part in any media whatsoever, without the prior written permission of the publisher. While all due care is taken in writing and producing this magazine, neither CIArb nor RPL accept any liability for the accuracy of the contents or any opinions expressed herein. Printed by Pensord Press Ltd ISSN 1743 8845
Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP, UK T: +44 (0)20 7421 7444 E: firstname.lastname@example.org W: www.ciarb.org MEMBERSHIP T: +44 (0)20 7421 7490 E: email@example.com COURSES & QUALIFICATIONS T: +44 (0)20 7421 7439 E: firstname.lastname@example.org LEGAL SERVICES T: +44 (0)20 7421 7424 Sandra Greenaway E: email@example.com MARKETING, COMMUNICATIONS & SPONSORSHIP T: +44 (0)20 7421 7488 Agnes Jumah E: firstname.lastname@example.org EVENTS T: +44 (0)20 7421 7427 E: email@example.com ROOM HIRE T: +44 (0)20 7421 7423 Giles Andrews E: firstname.lastname@example.org DISCLAIMER: The contents of this publication are not intended to be a substitute for either general or specific legal advice on individual matters, and readers are strongly encouraged to seek competent legal advice. Registered Charity N0− 803725
WELCOME TO THE LATEST EDITION OF The Resolver, which includes the views of a selection of our members on the trends defining their specialist areas, and their predictions for 2013 (see page 8). In November there are a number of prestigious events hosted by CIArb. On the 29th, the annual Alexander Lecture will be held in London with speaker Jan Paulsson. Co-head of Freshfields Bruckhaus Deringer’s international arbitration and public international law groups, Jan has acted as counsel or arbitrator in hundreds of international arbitrations and is the author of several textbooks. It should be a great event. To book, visit www.ciarb.org/conferences The CIArb website now has the updated version of its Royal Charter and Bye-laws. The amendments include an increase in the number of members serving on the Professional Conduct Committee (PCC), and a change to the composition of the Board and Commitees. Also in November, CIArb’s International ADR Conference and Dinner in Edinburgh will take place, at which I will talk about the relevance of the Institute in the arbitration world. The conference will be followed by Congress. This year, we will be holding the elections for the 2013 Deputy President and Vice President, who will go on to become the 2014 and 2015 Presidents respectively, and 2015 will be an important milestone for the Institute – 100 years! It has been a busy time for the President in the past few months, including a trip to the United Arab Emirates to meet the leaders in the areas of judicial and ADR advancement in the respective kingdoms. There is a preparation for expansion in these areas and CIArb is at the forefront of training in the region – Memoranda of Understandings have been signed in the Kingdoms and commitments made by us to provide the training that we are renowned for. Legal Counsel for the United Nations, Patricia O’Brien, gave a great insight into the workings of that institution in its role in dispute resolution at the members’ lunch. I went to Dublin for the International Bar Association and spoke to the Branch there, and was an invitee to lecture at two of the Dublin universities, where there are programmes in dispute resolution. Dublin also gave me the chance to do something for ADR; I was able to generate some disputes when playing in the IBA annual football match!
CIArb is at the forefront of ADR training in the UAE
Jeffrey Elkinson FCIArb C.Arb President of CIArb
CONTENTS WATCH 4-5 News: KLRCA launches i-Arbitration Rules; Russia rules against ‘sole-option’ clauses 6-7 Analysis: How do Ireland and Malaysia’s new arbitration laws compare with the UK’s? 13 Law round-up: Yukos Capital SARL v OJSC Rosneft Oil Company; Sucafina SA v Rotenberg
OPINION 8-9 Emerging trends in arbitration for 2013: The views of our panel of six experts 10-11 Cover: The intricacies of General Practitioner partnerships are laid bare
REGULARS AND FEATURES 12 My toughest dispute: Clive Lewis recalls a race-related case 14 How to... draft a reasoned final award 15-17 CIArb news: Including the latest from the branches 18 What’s on: Round-up of upcoming training courses
November 2012 | THERESOLVER
p03 contents new.indd 3
Prefer the co-arbitrators in a three-member tribunal to be selected by each party unilaterally. Source: White & Case/SIA at Queen Mary, University of London
Sharia guide to commercial disputes
KLRCA in Malaysia issues set of i-Arbitration Rules to help arbitrators The Kuala Lumpur Regional Centre for Arbitration (KLRCA) has launched its i-Arbitration Rules. These aim to provide a platform for international commercial arbitration suitable for transactions that are based on Islamic principles. Any commercial transaction with Sharia components, whether it is domestic or international, may arbitrate under the KLRCA i-Arbitration Rules, so long as parties choose the rules as the procedure governing the arbitration. Malaysia is recognised internationally as a leader in Islamic banking and finance and its first Islamic bank was set up in 1983. The country accounts for 62.7 per cent of the total global sukuk (Islamic bond) market, according to the country’s Ministry of Finance’s Economic Report for 2011/2012. The KLRCA i-Arbitration Rules have been developed in response to these developments and in recognition of the fact that a
Conventional dispute resolution may not suit Sharia transactions
conventional method of dispute resolution may not be suitable for a dispute between parties involved in a commercial transaction premised on Sharia principles. In Malaysia, the Sharia Advisory Councils (SACs) under
the Central Banking Act 2009 and the 2010 Amendments to the Capital Market and Services Act 2007, are the highest point of reference with regards to Islamic finance and banking and capital market transactions. If a point of
reference falls beyond their scope, partners may make reference to an SAC or Sharia expert of the parties’ choice. This point, along with the current version of the KLRCA Arbitration Rules, including the administrative modification made on 2 July 2012, are incorporated into the first part of the KLRCA i-Arbitration Rules. The second part of the Rules adopts the UNCITRAL Arbitration Rules 2010, to ensure all arbitration administered under KLRCA will be based on, and is compliant with, the most up-to-date international standards. Rule eight of the Rules states that where the arbitral tribunal has to form an opinion on a point related to Sharia principles or has to decide on a dispute arising from the Sharia aspect of an agreement that is based on Sharia principles, the matter shall be referred to the relevant SAC or Sharia expert. The arbitral tribunal may proceed to decide on all other non-Sharia issues arising out of the dispute.
New name symbolises change in Chinese arbitration One of the world’s major permanent arbitral institutions, CIETAC South China Subcommission, has been granted a new name by the Shenzhen Municipal Government, writes Richard Leung FCIArb, barrister at Des Voyeux Chambers and committee member of CIArb East Asia Branch. The Shenzhen Court of International Arbitration (SCIA) will be used in parallel with ‘CIETAC South China’, to describe the arbitration institution that was founded in 1983 to resolve contract disputes and other property disputes amongst individuals, legal entities and other institutions from China and overseas. 4
Under this new name, further reforms and innovative practices in arbitration in the Shenzhen Special Economic Zone can be expected. A number of professional bodies, including CIArb East Asia Branch, have signed a co-operation agreement with the SCIA to encourage co-operation between lawyers and arbitrators in Guangdong and in Hong Kong to jointly serve the commercial and industrial sectors in domestic China and abroad. It also symbolises that the internationalisation of arbitration in the People’s Republic of China has achieved a breakthrough in its development.
Left to right: Richard Leung, Man Sing Yeung FCIArb, David Fong FCIArb and David Tsang from the East Asia Branch at the launch of the SCIA
THERESOLVER | November 2012
“The power of the words had also struck me as the mediator. I needed a few moments to compose myself” → See My Toughest Dispute, by Clive Lewis ACIArb, on page 12
Russia rules against ‘sole-option’ clauses A recent case suggests that “sole option” dispute resolution clauses will no longer be enforceable in Russia, and in these cases the Russian courts can assume jurisdiction, writes Melanie Willems FCIArb, partner, Chadbourne & Parke. The Russian Telephone Company CJSC (“RTC”) and Sony-Ericsson Mobile Communications Rus LLC (“Sony-Ericsson”) entered a contract that contained a clause requiring all disputes to be referred to arbitration, but gave Sony-Ericsson alone the right to bring certain claims in any court of competent jurisdiction. In breach of this clause, RTC commenced proceedings in Russia. The Presidium of the Supreme Commercial Court (SCC), Russia’s highest commercial court, decided that RTC could bring the court case because each party should have equal procedural
RTC commenced proceedings in Russia in breach of a ‘sole-option’ clause
rights and access to the courts. Any agreement that deprives one party of such rights would not be valid, since it would offend against the fundamental principle of equality. The SCC’s reasoning partly relied on a flawed analysis of the case law of the European Court of Human
READER FEEDBACK A very taxing Counsel In “Reader Feedback” [August 2012, p5] Richard Bloore FCIArb laments an unspeakable and inconvenient reality; that the legal profession has hijacked the otherwise noble raison d’etre of arbitration. Having recently endured a pontificating Counsel lecturing on his almost unlimited rights to order compliance with common law type rules of evidence when called upon [as he often was, he reminded us mere mortals] by parties to act as arbitrator, I am compelled to add to the feedback. The lecture arose as a result of me opining that the Anglo/American approach to compilation of evidence had no place “proper” in international
Rights relating to Article 6 of the European Convention on Human Rights (ECHR). One case the SCC referred to involved an individual being forced to arbitrate under an arbitration agreement that he was not party to, and where he had not waived his right to go to court. Article 6 of the ECHR does not in
Email letters to email@example.com
arbitration. An alternative suggestion, that a common sense approach to compilation of evidence should be explored with the newly formed tribunal, was voraciously set aside. One has to wonder if the fee pot was seen to be evaporating. Unashamedly oblivious to any obligation to procure a prompt resolution, the common sense approach was discounted in favour of inevitably expensive transcontinental lawyerly research into the application of rules of evidence across the lex fori, lex causae, lex loci, lex arbitri quandrangle, that which might successfully entangle everyone – or was it to defend against everyone – here I got lost. Most construction/engineering arbitration disputes centre on
contractual issues that are more often than not resolved by the contract itself. Advice of otherwise experienced lawyers, to look outside of the contract for solutions, will inevitably lead to the disproportionate consequences referred to in this Reader Feedback. Unsurprisingly, clients are often sufficiently scared into approving the additional legal fee expenditure, arbitral decorum to incorporate by agreement (or order of the tribunal) the IBA Rules on the Taking of Evidence in International Arbitration forgotten, or never learned perhaps.
Michael Fesler FCIArb Contract Advisor PT Thiess Contractors, Indonesia
fact prevent a person from waiving their right to have their dispute resolved by a court in favour of arbitration, if that waiver is freely made, lawful and unequivocal. There was no suggestion that RTC had been coerced into waiving its right to go to court. It has been reported that the contract between RTC and Sony-Ericsson was governed by English law and the seat of the arbitration was likely to be in England. The clause would be valid under English law. The SCC did not consider English law in its decision. It must be remembered that the Russian courts do not have a system of precedent. Therefore, this decision is not technically binding on anyone other than the parties concerned. That said, the decision is likely to have a significant influence when lower Russian courts are considering similar clauses.
Tributes for ICCA co-founder Professor Pieter Sanders, one of the principal drafters of the New York Convention 1958, has died one week after celebrating his 100th birthday. Widely regarded as the founding father of modern international commercial arbitration, Pieter was also a co-founder of the International Council for Commercial Arbitration (ICCA) in 1961. In 1976 he contributed to the drafting of the UNCITRAL Arbitration Rules from which later came the UNCITRAL Model Law – the foundation of many modern national laws on arbitration today. He observed recently: “As with my age, international arbitration and ICCA continues to grow beyond all expectations – arbitration is a healthy business!” November 2012 | THERESOLVER
NEWS ANALYSIS ADJUDICATION Ireland and Malaysia are poised to implement adjudication laws, following the UK and other countries. Niall Lawless considers some of the ways that the provisions of the two new adjudication acts compare with that in the UK
Laws under construction
THE UK WAS THE FIRST COUNTRY to introduce adjudication law with its Housing Grants, Construction and Regeneration Act 1996 (recently updated by the Local Democracy, Economic Development and Construction Act 2009 – LDEDCA). Australia, New Zealand and Singapore have all subsequently enacted adjudication law. The pace in implementing adjudication law seems to be growing, with both Ireland (Construction Contracts Bill 2010 – CCB) and Malaysia (Construction Industry Payment and Adjudication Act 2012 – CIPAA) poised to implement new laws soon. The purpose of these laws is to provide a legal entitlement to timely stage payments in construction contracts and to having an independent adjudicator make a decision on disputed matters in a very short period of time. Whereas the new Irish law is broadly modelled on the UK Act, the new Malaysian law has unique features that take into account cultural differences as well as different construction industry customs and practices. In terms of what can be adjudicated, the scope in the UK is wider and yet it is also narrower. Under UK law, a party to a construction contract has the right to refer a (any) dispute arising under (out of ) the contract for adjudication; whereas the purpose of the CCB is to regulate payment under construction contracts and the purpose of the CIPAA is to facilitate regular and timely payment and to provide remedies for the recovery of non-payment. However, under the CIPAA the
parties may at any time agree to extend the jurisdiction of the adjudicator to decide on any other matter. Whereas UK law excludes process engineering works from the definition of what are construction contracts, for example power generation and production of oil or gas; Ireland and Malaysia do not. In its definition of construction–operations, the CCB includes industrial plant and drilling for – or extraction of – oil or natural gas; and the CIPAA includes any electrical, mechanical, water, gas, oil, petrochemical or telecommunication work. By convention, in UK adjudications the parties are the referring party and the responding party; Ireland may or not follow UK nomenclature. Under the CIPAA the parties are the claimant and the respondent. After the giving of notice of intention to refer a dispute to adjudication, the UK requirement is to appoint the adjudicator and refer the dispute within seven days; in Ireland within 12 days; and in Malaysia within 20 days. In Ireland and the UK, the adjudicator is required to reach a decision within
“Unique to Malaysia is obtaining direct payment from the principal”
28 days of referral. The adjudicator may extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred; or longer with the consent of both parties. Within the adjudication period it is the adjudicator who decides procedural matters. Under the CIPAA, the claimant serves their adjudication claim within 10 days after the appointment of the adjudicator. The respondent must respond within 10 working days and the claimant may serve a written reply within five working days. The adjudicator is required to reach a decision within 45 working days of the adjudication response or reply for such further time as agreed by the parties. In all three jurisdictions the adjudicator’s powers and duties are similar and parties are free to choose the adjudicator and agree the terms of appointment and fees. Absent agreement, the UK default appointment mechanism is that the referring party will request an adjudicator nominating body to select the adjudicator. In Ireland, the adjudicator will be appointed by the chair of the panel of adjudicators that is controlled by the Minister for Finance. In Malaysia the adjudicator will be appointed by the Director of the Kuala Lumpur Regional Centre for Arbitration (KLRCA). If the parties and the adjudicator fail to agree the terms of appointment and the fees, the KLRCA standard terms of appointment shall apply. In the UK the adjudicator is entitled to payment of a reasonable amount for fees and expenses; in both
THERESOLVER | November 2012 2010
the Irish and Malaysian law there is no mention of the test of reasonableness. In respect of the parties’ costs in adjudication there is a wide divergence. In the UK the LDEDCA provides any agreement between the parties concerning the allocation of the parties’ costs is ineffective unless it is made after the appointment of the adjudicator. Under the CCB each party shall bear their own legal and other costs in connection with the adjudication. However, under the CIPAA, irrespective of any agreement by the parties prior to adjudication commencing, the adjudicator shall order that costs follow the event and determine the quantum of such costs.
Whereas under UK law the adjudicator must release the decision to the parties within 28 days, Malaysian law allows for a lien and the adjudicator may require full payment of their fees and expenses to be deposited with the Director of the KLRCA before publishing. In respect of jurisdiction in the UK it is considered “prudent, indeed desirable, for an adjudicator faced with a jurisdictional challenge, which is not a frivolous one, to investigate their own jurisdiction and to reach their own non-binding conclusion to that challenge”. In Malaysia, notwithstanding a jurisdictional challenge, the adjudicator may proceed and complete the adjudication proceedings. If the adjudicator’s decision is
not complied with, after giving notice, in Ireland and the UK the unpaid party can suspend work. In Malaysia, the unpaid party may also reduce the rate of progress of performance of construction work. Unique to Malaysia is obtaining direct payment from the principal. In the absence of payment required in the adjudicator’s decision, the unpaid party may make a written request for payment of the adjudicated amount from the principal of the party against whom the adjudication decision is made, and the principal shall pay the adjudicated amount. In the UK, the decision of the adjudicator is binding on the parties until the dispute is finally determined by arbitration or court proceedings. Under the CIPAA a dispute in respect of payment may be referred concurrently to adjudication, arbitration or the court, but such reference shall not affect the adjudication proceedings. One of the most controversial matters in respect of the CCB are the provisions that the decision of the adjudicator shall not be binding or work may not be suspended if the dispute is referred to arbitration or court proceedings. This enables a reluctant “payer” to
go through the motions of adjudication knowing that the adjudicators’ decision can be referred to arbitration or litigation regardless of the outcome. Courts may be able to deal with such matters on a fast-track basis but there are no stipulated deadlines or timetables for such matters to be dealt with in arbitration. Adjudication has led to a decline in arbitration in the UK. Perversely, in Ireland adjudication may lead to a growth in arbitration; perhaps there is an opportunity for the Chartered Institute of Arbitrators in Ireland (and other bodies) to develop and recommend an expedited process. In Asia, to maintain confidence and good order in private dispute resolution, it is common for the process to be supported by an administering authority. Under the CIPAA the KLRCA is the default appointing and administrative authority. It will set the competency standards for adjudicators; determine the standard terms of appointment, and provide administrative support for the efficient conduct of adjudication. Niall Lawless FCIArb C.Arb is a Chartered Engineer, Adjudicator & Mediator
November 2012 | THERESOLVER
Emerging trends in international arbitration Arbitration is becoming more complex with a greater desire for alternative methods to resolve disputes more quickly and offer greater value for money. We ask six experts for their predictions LUCY GREENWOOD FCIArb, Solicitor, Foreign Legal Consultant at Fulbright & Jaworski LLP, based in Houston, US I have seen an increase in clients seeking alternatives, not only to court proceedings, but also to arbitration, particularly investment treaty arbitration. Companies seem more willing to engage in direct negotiation or pursue alternative business opportunities than to commit to lengthy arbitration. Clients are interested in counsel providing commercial advice and opinions on negotiation tactics and mediations. ICSID is seen as highly bureaucratic and companies will not contemplate engaging in a dispute resolution mechanism that can take years to conclude (and where they have no guarantee that a final award will not be annulled). I have also seen a reduction in the number of investor-state arbitrations I have been instructed on, with a rise in pre-dispute advice and representing clients in direct negotiations intended to avoid arbitration proceedings. In relation to commercial disputes, it has been notable that there are a significant number of new entrants into the field as counsel. I used to see the same faces as opponents across the table. Now it seems the counsel pool has increased dramatically. The arbitral institutions have 8
made efforts to diversify their arbitrator panels and we are starting to see these efforts reflected in the institutional appointment of arbitrators. Finally, we are also receiving more requests to consider alternative fee arrangements on matters, including one request to participate in a ‘reverse auction’ – a system of online bidding in real time designed to drive down the fee proposals of selected firms. PROFESSOR DOUG JONES AO FCIArb, Partner, Clayton Utz and Past CIArb President, based in Australia and the UK I practise as an international arbitrator in Europe, the Middle East, South East Asia and North Asia. What I see as a trend is the continuing process whereby international arbitration is absorbing and applying the very best of practice from both civil and common law. Elsewhere, there is a concerted effort to adjust the process of each arbitration to suit the needs of a particular dispute. I find myself arbitrating on a range of disputes from infrastructure, intellectual property and Mergers and Acquisitions issues, and even within the same area of disputes there are differences in the process of arbitration. There is also a focus on trying to resolve disputes cost effectively, while still properly and fairly
deciding the dispute. Some issues discourage cost effectiveness without finding value for money. For example, exchanges of case, disclosure of documents, and production of evidence by way of written statements. All of this can result in a lot of time and money being spent without a value of cost versus return in the dispute. Users of arbitration are increasingly exerting pressure to find ways to make the process more efficient, while retaining fairness. The process is complicated by the fact that when parties are engaged in disputes they tend to leave the theory behind in the process of what they see is to their forensic advantage. These are trends emerging in the same areas of the world where there is a more vigorous approach between parties’ representatives than in the past. Although sometimes they tend to ‘talk the talk’ and not ‘walk the walk’. OLUFUNKE ADEKOYA FCIArb C.Arb, SAN, Partner, AELEX, based in Nigeria The increasing focus on Africa as an investment destination has resulted in more attention being paid to states’ dispute resolution mechanisms which have previously been a disincentive to investment. In addition to re-vamping court systems by speeding up court procedures, Nigeria and Ghana have embraced fast-track courts for commercial
cases, as well as court-annexed ADR mechanisms. Judges are increasingly transferring litigation cases to the ADR structures for determination. In addition, countries such as Mauritius and Rwanda have enacted arbitration laws based on the 2008 version of the UNCITRAL Model Law, while the Lagos State government of Nigeria did the same in 2009. These three locations have also established in-country arbitral institutions as a means of promoting arbitration in their respective regions. A number of arbitration centres have opened. The Kigali Centre for International Arbitration opened in May 2012 in Rwanda. The LCIA /MIAC (Mauritius International Arbitration Centre) opened in July 2011. The Lagos Court of Arbitration will be launched in November 2012. The trend is to focus on Africa as a venue for African-based arbitration disputes in mining, financial services and energy – mainstays of commercial activities in these regions. With increased inward investment in the areas of natural resources and infrastructure in Africa, the current interest in economic development through arrangements such as Public Private Partnerships is likely to increase. Competition from the so-called ‘Asian tigers’ for participation in these areas may also result in the willingness of states to refuse to re-negotiate disputed contract terms and resort to arbitration.
2010 THERESOLVER | November 2012
In Nigeria, although the Lagos Court of Arbitration is to focus on commercial energy disputes, there is a strong likelihood that the anticipated total overhaul of the legislative framework of the Nigerian energy sector may result in more bilateral investment treaty arbitration rather than commercial arbitration. Resorting to commercial arbitration for the settlement of disputes will however continue to increase. CHERYL JE MCIArb, Associate Director, Charlton Martin Consultants Ltd, Quantity Surveyor specialising in construction contract disputes, based in Hong Kong Like many other places, standard forms of construction contracts are used widely in Hong Kong. The most important are the standard form of building contracts (private edition) used by major private developers and the Government General Conditions of Contract used in government projects. Mediation and arbitration are provided for in the standard dispute resolution clause of these two forms. Mediation is usually not a mandatory process and for many years arbitration was the most popular method to resolve disputes arising from construction contracts where standard forms were used. More recently, the Government has promoted mediation as an ADR method. The Civil Justice Reform came into effect on 02 April 2009, and one reform was the courtsâ€™ encouragement and facilitation of mediation. Additionally, the enforcement of a new mediation ordinance is in the pipeline. The new mediation ordinance would provide a proper legal framework on the conduct of mediation. With these new developments, it is not surprising that practitioners now move their
focus to mediation, and it is expected that the increased use of mediation will continue. The standard forms mentioned above are only applicable in main contracts and nominated sub-contracts. Construction disputes below sub-contract level are also very common. The dispute resolution provisions at this level are often loosely drafted or even missing. As a result, some disputes may need to be resolved by the court. But with the Civil Justice Reform in force, some could be resolved by mediation prior to the court proceedings. Construction disputes are notoriously complex since different disciplines of experts are often required. At the main contract level, the disputed sum is often significant. It may not be easy for the parties to fully understand the strengths and weaknesses of their cases so as to make a sensible settlement during the mediation proceeding. This is particularly so if the sum involved is large. Arbitration may come back when mediation cases fail and difficulties with the process become apparent. ASHOK KUMAR MAHADEV RANAI FCIArb, Partner, Skrine and immediate Past Chair of the Malaysian Branch of CIArb, based in Malaysia In Malaysia, the majority of construction disputes are referred to arbitration because they tend to be complex and highly technical, and the majority of arbitration cases involving construction disputes are domestic. However, Malaysia is seeing an increase in international arbitration proceedings due to the robust and dynamic approach undertaken by the Kuala Lumpur Regional Centre for Arbitration (KLRCA) in promoting the region as a neutral venue for arbitration.
In recent years there have been positive initiatives taken by the judiciary to improve the court system, resulting in the substantial reduction of the backlog and a quick resolution of disputes by the courts. Presently, a full trial of a commercial dispute under the court fast-track system can be completed within nine to 12 months of commencement. As a result, the arbitral community is under pressure to resort to innovative techniques to improve the duration of disputes through arbitration. The KLRCA Fast Track Rules were introduced two years ago to cater for those who wish to resort to an expedited arbitral process, and techniques such as hot-tubbing and limited time arbitrations are prevalent. The Construction Industry Payment and Adjudication Act (CIPAA) is expected to come into operation in the first quarter of 2013. While it is anticipated that CIPAA will change the landscape of the resolution of construction disputes, the extent of its impact remains to be seen. However, statistics from other jurisdictions suggest that the implementation of statutory adjudication has resulted in a large reduction in arbitration. The formation of a specialist construction court has also been mooted recently. Among other things, it would cater for the demand for a specialised court armed with the expertise to deal with the complexity and technical matters involved in construction disputes. JOHN REDMOND FCIArb C.Arb, Adjudicator and Mediator, based in the UK Dispute resolution used to be simple. There was litigation and there was arbitration. In 2012, there is a multitude of dispute resolution processes, all suffering regular and accelerating change, and all varying between countries.
In 2013, litigation will be shaken up by the changes to the costs regime. Arbitrators will come under pressure to follow suit. It is very difficult to advise parties about potential cost outcomes, and this will become worse. Statutory adjudication, the 28-day process thrust on the construction industry in 1998, was changed dramatically by the extension to oral contracts. The effect is only just becoming noticeable but will be the subject of much litigation in 2013. Several other countries have introduced adjudication, but never quite the same process. Mediation has become orthodox and is being subjected to statutory regulation, but every country has its own (often wildly different) version. It has also spawned conciliation, which requires another quite different technique. Expert determination used to be a Wild West activity with no rules. The ICC has sought to bring order to chaos with its Centre for Expertise introducing another procedure which may or not apply. Dispute Boards have spread around the world, but procedures vary between contract and country. The number of arbitration centres grows exponentially, and the ICC has changed its rules to keep us on our toes. The search for the Holy Grail of a process that is economic, efficient and reliable will continue indefinitely, because it will never be found, or if it is found, it will not be recognised. Flexibility offers efficiency but appears to be open to abuse. Regulation follows, removing the flexibility and making it more expensive, so we search for another flexible process. The range of procedures grows inexorably.
â€˘ Attend CIArbâ€™s Alexander Lecture to hear from International Arbitrator Jan Paulsson. visit www.ciarb.org November 2012 | THERESOLVER
COVER FEATURE GENERAL PRACTITIONERS IN THE UK
What’s different about doctors? The intricacies of GPs in partnerships take a little getting used to. A second opinion may be helpful as disputes can arise over many issues, whether premises, goodwill, whistle-blowing or taking retirement from the NHS with just 24 hours’ notice
By Graeme Jump 10
AT FIRST BLUSH, THERE IS PERHAPS NO reason to suspect that accepting an appointment as an arbitrator in a dispute between general practitioners (GPs) in partnership is likely to be any different to any other professional partnership appointment. Arguably all professional partnerships usually include intelligent, independently-minded people, focused intensely on their professional work, though sometimes less interested in the day-to-day dealings of the management platform from which they operate. A deeper analysis, however, reveals that there are differences which a putative arbitrator may wish to explore at an early stage. Otherwise there is a risk of a serious misunderstanding of legal or factual issues, perhaps both, to the general frustration of the parties. Currently, most GP partnerships in the UK rely heavily upon the income they receive from their National Health Service work. This is supplemented, sometimes, by “private work” such as insurance examinations, private medical examinations and clinical assistant posts. The decision whether or not to undertake private work is usually the decision of an individual partner and must be made within the confines of any partnership agreement restrictions. Income from private work is usually kept by the individual, whereas NHS work income will be shared in accordance with the provisions of the partnership agreement. Income from the NHS work is funded by the State under one of two forms of contract known as General Medical Services (GMS) and Personal Medical Services (PMS). The contracts are with the partners’ local Primary Care Organisation (PCO). There are a number of differences between the two types of contract. The GMS contract is
nationally agreed and locally managed. The PMS contract is both locally agreed and managed by the PCO. GMS contracts may be held by partnerships of GPs as long as at least one partner is a general medical practitioner. Partnerships cannot, however, hold PMS contracts, but can be entered into with GPs who operate as part of a partnership. The dissolution of the partnership structure or the expulsion of one or more individual partners, will undoubtedly have an effect upon the PCO contract, whatever its nature. This is likely to be of profound importance to the individual GP partners and the partnership, accepting that most income for GP partnerships is generated from the NHS. It is therefore critical that the outcome of their dispute does not disrupt, prejudice or disqualify any one or more of the partners from enjoying that income going forward following the resolution of the dispute. In casual conversation, and perhaps in giving evidence in an arbitration, a GP may refer to “the contract” in the context of a partnership dispute. Care must be taken in understanding whether the witness is referring to the “partnership contract” or the “PCO contract”. Whatever the contract, all doctors who own their own surgery premises are entitled to receive a payment to recompense them, which is presented as payment for “rent”. This may be termed “notional rent” – the lesser of current market rent (CMR), determined every three years by the District Valuer, or the actual rent if the building is leased – or “cost rent”. This ‘rent allowance’ may trigger a dispute in a number of areas. The surgery premises may be owned by some but not all of the partners. If the non property-owning partners (POPs) do not receive any of the rent, is it fair that they contribute to the capital costs of the
THERESOLVER | November 2012
p10_11 cover_feature.indd 10
premises, what might otherwise be called “landlord’s costs”? Is there, in fact, a formal landlord and tenant relationship between the POPs and the non-POPs? Should there be a lease or licence between the two groups of partners in respect of the premises? Well thought-out partnership arrangements should answer these and other such questions. This is not always the case. One particularly fertile area for dispute is the treatment of the rent allowance after the retirement of a POP, or indeed expulsion. Absent agreement between the continuing partners and the retiring or expelled POP, there will be issues to be determined in respect of the continued sharing of the “rent” where the principles of equitable accounting may well be relevant. These principles become more complicated where, as is likely, the surgery premises have been purchased with a loan secured by a mortgage on the premises. The departed POP will remain liable to contribute to the debt but is not enjoying use of the premises nor receiving a share of the rent allowance. Of course, the continuing partners may be applying the rent allowance to repay the loan, which is of some advantage. Parallels with family law and the position of a non-occupying
“Can the partner dictate that they wish to reduce from full-time to part-time but remain an equity partner?”
spouse in relation to a matrimonial home may have some relevance in the application of the accounting principles apportioning payments or repayments of the loan, using the rent allowance, as between capital and interest. Quite often where there are ownership issues, lawyers will advise that there should be a separate deed of trust between the registered proprietors of the premises and all the POPs. The concept is to keep entirely separate legal issues occurring in the “property partnership” from the “professional partnership”. If there is a trust deed then it is likely that there will be an arbitration clause in the trust deed. So at the outset of the dispute it may be sensible to consider whether or not an arbitrator is required to be appointed both to the professional partnership and also the property partnership to deal with the totality of the issues in dispute between all the partners. A growing area of concern is ‘24-hour retirement’. A GP operating in the NHS will generate a pension as part of the contractual arrangements, which can be accessed when a GP is over 50, provided they take no part in NHS work for the 24 hours immediately following retirement and limits involvement to 16 hours per week in the following month. The GP will also receive a substantial tax-free lump sum. So why may there be a dispute? The answer lies not in the PCO contract but in the contract of the partnership. To facilitate the 24-hour retirement it is likely that a GP would need to demonstrate that they have retired from partnership. The issues that flow include whether or not the GP has correctly given notice of retirement under the partnership agreement. However, of rather greater importance is the issue of continued participation by the GP in the partnership following completion of the 24-hour retirement process. Can the partner
dictate to the other partners that, for example, they now wish to reduce their hours from full-time to part-time but remain an equity partner? Another potential area of dispute is usually given the categorisation of whistle blowing. For example, if one or more partners experience concerns about another partner’s relationship with a patient. This may arise because of the nature of the personal relationship with the patient, the management of the patient, or the clinical performance of the partner’s responsibilities to the patient. If the other partners ‘whistle blow’ with a consequence of some sanction on their colleague, will that expose them to some inter-partner claim for breach of duty, perhaps “good faith”? In such a dispute what procedural mechanisms would an arbitrator expect to be followed in the whistle blowing? What documents are disclosable in arbitration? What are the consequences of the provisions of the Public Interest Disclosure Act 1998? Goodwill may often be an ingredient in a partnership dispute. However, uniquely, in the case of a NHS practice, all sales of goodwill or of a partner’s share are rendered unlawful by virtue of specific NHS legislation. On the face of it, this may seem a straightforward concept. However, difficulties can arise where there is an inter-weaving of partners’ interests in the surgery premises associated with the NHS practice where the issue of “deemed goodwill” might arise. If the partnership, somewhat unusually, is an entirely private medical practice then there is no legal or other objection to the sale of goodwill in principle. Finally, there is the evergreen area of disputes over valuations. As in arbitrations relating to other professional partnerships there is the need to consider very carefully the precise wording of the valuation provisions. However, in the case of GPs, there may be issues relating to the rent allowance and its effect on the valuation and perhaps, in some circumstances, considerations of the deemed goodwill issue. While arbitration may be the dispute resolution process imposed by the partnership contract, the cost of the process may be considered too high by the partners, at least initially. Mediation will often seem an attractive alternative particularly at a time when many GPs consider that the rewards from their NHS contract are under attack from government. If there is mediation, some knowledge of the issues discussed above may help a mediator better understand the competing positions of the parties. November 2012 | THERESOLVER
p10_11 cover_feature.indd 11
IN PRACTICE MY TOUGHEST DISPUTE UK
Clive Lewis OBE DL ACIArb, Director, Globis Mediation Group, and accredited commercial mediator
What was your toughest dispute? To share it in the next issue email firstname.lastname@example.org
Out of the hundreds of disputes that I’ve mediated, this was the one that raised the issues closest to my heart
Some time ago I mediated a dispute for a large organisation in the services industry. The dispute, which was race-related, was between a former black employee (Gloria) and her white line manager (Sonia). The mediation process gave the opportunity for the parties to try to clarify who said what and when. Gloria believed that she had been held back and victimised because she was black. I would describe Sonia as a “tough cookie” who wasn’t giving much away. The session started. By late morning the time had come to move the mediation from caucus sessions to a joint discussion between the two parties.
This lasted for about 10 seconds. It seemed like 60. You could have heard a pin drop. It was as if these words delivered the fatal blow that finally made Sonia see the impact of her actions. For the first time I witnessed Sonia show emotion. She didn’t know what to say but the expression on her face said enough. The power of these words had also struck me as the mediator, and I too needed to take a few moments to compose myself. But no one in the room knew this. In a large part, this was due to the fact that I am from the same background as Gloria. None of the hundreds of disputes I have mediated has raised issues as close to my heart
I gave Gloria the opportunity to speak first. After taking around 15 seconds to compose herself, she made eye contact with Sonia and begun what seemed like a rehearsed and prepared speech, only it hadn’t been rehearsed or prepared. She described, impeccably and articulately, the hurtful actions and words used by Sonia over a period of time. She quoted dates, referred to colleagues and gave specific examples of what had happened. In her mind, she said, the only conclusion she could make was that Sonia was racist. Gloria ended her speech by saying: “Even the Ku Klux Klan wear hoods so that no one can see who they are.” The room went silent.
as this one. Settlement was agreed some eight hours later, which was supported by a compromise agreement as Gloria decided to move on. The settlement included a provision for Sonia to attend equality and diversity training. One of the key learning points from this case is on the topic of unconscious bias. Learning to draw a circle around myself and keep my own feelings and experiences separate has been crucial as I have developed my skills as a mediator. This case serves as a reminder of the importance of the neutrality and objectivity that a mediator must convey, regardless of their own experiences and beliefs.
INTRODUCING THE HANDBOOK OF INVESTMENT ARBITRATION COMMENTARY, PRECEDENTS AND MODELS FOR ICSID ARBITRATION Thomas H. Webster ȕ
A rule-by-rule commentary based on actual awards and Ad Hoc Committee decisions in ICSID arbitrations, highlighting all procedural issues, including issues as to challenges of arbitrators A comparison of ICSID and UNCITRAL A systematic interpretation of BITS with regard to jurisdiction, standards of treatment, the defence of necessity, relief with extracts from the Awards discussed October 2012 978-0-414-04464-7 £165
PLACE YOUR ORDER TODAY: VISIT sweetandmaxwell.co.uk EMAIL TRLUKI.email@example.com CALL 0845 600 9355 (UK) +44(0) 1264 388560 (INTERNATIONAL)
SWEET & MAXWELL
THERESOLVER | November 2012
An overview of recent key court cases
ISSUE ESTOPPEL IN RELATION TO THE ANNULMENT OF AWARDS
THE CASE ○ ARBITRATION
Yukos Capital SARL v OJSC Rosneft Oil Company  EWCA Civ 855
YUKOS CAPITAL (YC) was a member of a Russian group of companies involved in oil production and trading (Yukos Group). After the forced break-up of the Yukos Group, Rosneft (R) — a wholly owned subsidiary controlled by the Russian government — acquired the majority of the group’s assets. A dispute arose concerning intra-group loans made between YC and a former production subsidiary (YNG). The dispute was referred to arbitration in Russia under the rules of the ICAC of the Russian Federation. The arbitral tribunal issued several awards finding in favour of YC, and required R — the universal successor to the rights and liabilities of YNG — to pay YC more than US$400 million. The awards were set aside by the Russian Courts in a series of decisions that YC contends were biased and pre-determined. YC sought to enforce the annulled awards in the Netherlands. The Amsterdam Court of Appeal decided that the Russian Court judgments setting aside the awards must be ignored on the grounds that they were the result of a system which was described as “partial and dependent”. Later on, YC issued proceedings in the English Court seeking to recover post-award interest, amounting to over US$160 million. Hamblen J found in favour of YC on two preliminary issues. He held that R was estopped by the decision of the Amsterdam Court of Appeal from saying that the Russian Court’s decision setting aside the awards was not partial and dependent. He also held that there was no room in this case for the application of the doctrine of Act of State. R appealed.
○ THE JUDGMENT
The Court of Appeal upheld Hamblen J on the doctrine of Act of State but differed from him that R was issue estopped by the decision of the Amsterdam Court of Appeal from denying that the annulment decisions were the result of a partial and dependent judicial process. It concluded that it was for the English Court, and not that of some other state, to determine whether the recognition of a foreign judgment should be withheld on the grounds that it was a partial and dependent judgment in favour of the state where it was pronounced. ○ WHAT IT MEANS
This case provides useful guidance as to the English Courts’ approach in relation to the recognition and enforcement of awards that were
successfully challenged at the place of arbitration and yet enforced by the courts of another country. Report by Tony Marks FCIArb, Director of Legal Services and Julio César Betancourt MCIArb, Head of Research and Academic Affairs at CIArb Full judgment available at:
→ www. bailii.org/ew/cases/EWCA/ Civ/2012/855.html
The awards were set aside by the Russian courts in a series of decisions that YC contends were biased
INTERIM AWARDS: ARE THEY FINAL AND BINDING?
THE CASE ○ ARBITRATION
Sucafina SA v Rotenberg  EWCA Civ 637
SUCAFINA CONTENDED to have entered into a series of contracts with Mr Rotenberg (MR). A dispute arose as to whether the contracts had been made with MR personally or with ILFEC or CAFECA, two companies in which he was a managing director and a shareholder. The dispute was referred to arbitration under the Coffee Trade Federation’s (CTF) arbitration rules, which provided for a two-stage arbitration procedure. The tribunal found in favour of Sucafina, and ordered MR to pay $880,456.85 together with interest, plus the costs of the arbitration (“the Original Award”). On appeal, the CTF Board of Appeal issued two “interim awards” which, basically, 1) stated that most of the contracts had been made with ILFEC or CAFECA and Sucafina, 2) decided the quantum of Sucafina’s claim under the contracts to which Mr Rotenberg was a party. Neither of these interim awards set aside the tribunal’s award as to the costs of the arbitration. Later on, the CTF wrote to MR’s solicitors and to Sucafina stating that a final award (“the Final Award”) would be published and made available upon payment of fees and expenses. Payment was not made in time and the CTF wrote to the parties stating that “the Original Award” was therefore final and binding. MR applied to the Commercial Court pursuant to s.79 Arbitration Act 1996 seeking an extension of time for taking up the Final Award and a declaration that, in the event that it was not taken up, the interim awards should remain final and binding between the parties. The Court held that the interim awards were final and binding on the parties and refused the
extension referred to above. As the effect of the interim awards was to set aside the tribunal’s Original Award, the costs of the arbitration had not been determined and could not now be determined. Sucafina appealed.
○ THE JUDGMENT
The Court of Appeal agreed with the Commercial Court that each of the interim awards were final and binding. It held that a final and binding award on an issue cannot be rendered nugatory because a fee for a subsequent award was not paid. It also decided that Sucafina was entitled to enforce that part of the Original Award on costs and fees thereby dismissing the appeal on the main issue and allowing the appeal on the costs of the arbitration.
○ WHAT IT MEANS
The use of the word “interim” on an award does not mean that the award itself is not final and binding in respect of the issue(s) decided. Report by Tony Marks FCIArb, Director of Legal Services and Julio César Betancourt MCIArb, Head of Research and Academic Affairs at CIArb The full judgment is available at:
→ www.bailii.org/ew/cases/EWCA/ Civ/2012/637.html
The Court held that the interim awards were final and binding and refused the extension
November 2012 | THERESOLVER
…draft a reasoned, final award By James R. Holbrook Illustration: Cameron Law “A reasoned award should be clear and definite... and explain why the losing party lost” MANY PARTIES WANT TO KNOW how the arbitrator has decided their dispute. They often specify or request a “reasoned final award” that provides a written explanation of the arbitrator’s decision. A reasoned award should be clear and definite; inform the parties what they must do to comply; decide every issue submitted to arbitration; stay within the scope of the arbitrator’s authority; and address each claim and defence. It should also summarise key testimony and exhibits received into evidence; state the relief granted to the prevailing party; and explain why the losing party lost. A reasoned award has five parts: the caption; preamble; body; closing; and the arbitrator’s signature.
Write short declarative sentences
James R. Holbrook is a Clinical Professor of Law at the University of Utah’s S.J. Quinney College of Law in Salt Lake City, Utah, US, where he teaches arbitration
Drafting the award should begin soon after the hearing is concluded, while the evidence is still fresh in the arbitrator’s mind. The arbitrator should write short, declarative sentences, in active voice, and avoid jargon, clichés, and humour. The arbitrator should use subheadings and discuss different subjects in separate paragraphs. Each paragraph should build on the one before. The arbitrator should use the same word throughout the award to refer to the same person or thing. The arbitrator should verify that there
is a principled basis for every ruling and that each cited fact is supported by the record.
Begin with caption and preamble
The caption states the name of the arbitral tribunal and case number (if any), the parties’ names, and the name of the award, for example, (“Final Award of Arbitrator”). The preamble references the parties’ arbitration or submission agreement; any arbitration rules and laws that apply; the arbitrator’s name, appointment, and authority to decide the case; the procedural history of the arbitration; and the date, place and length of the hearing.
Focus on the specifics of the dispute in the body of the award The body of the award addresses and decides the merits of the parties’ dispute. The body begins with a statement of the parties’ claims and defences, followed by a concise statement answering “who, what, when and how” questions about the dispute. The arbitrator marshals key facts, either chronologically or claim by claim, which prove or disprove each element of the issues the arbitrator must decide. The arbitrator then decides each claim and defence,
states who is the prevailing party, provides an explanation of the relief granted in the award, and allocates all arbitration expenses and arbitrator compensation.
Finish with the closing and the arbitrator’s signature The closing declares that the award is in full settlement of all claims and defences submitted to arbitration. The closing also expressly denies all claims and defences that are not specifically granted in the award. The arbitrator’s signature (and notary statement, if required) is the last part of the award. For a three-arbitrator panel, a majority of the arbitrators must sign the award. If required by law, the arbitrator’s signature must be notarised. If the arbitrator personally serves the parties with a copy of the award, the arbitrator should prepare a certificate of service.
Highlight the award’s fair consideration
The award demonstrates to the parties, their lawyers, and any reviewing court that all important issues were fairly considered and fully decided. • CIArb Fellows demonstrate they can draft a reasoned final award, either by submitting redacted awards or successfully passing CIArb’s Pathway Module 4 Award Writing Exam
THERESOLVER | November 2012
A former Chair of the North America Branch of CIArb has been named as a US Supreme Court Fellow for the 2012-2013 term. Professor Stacie Strong FCIArb is Associate Professor of Law at the Center for Dispute Resolution, University of Missouri School of Law
EGM approves Byelaw amendments Amendments to CIArb’s Bye-laws have been brought into force by the Institute’s Privy Council, following their approval at an Extraordinary General Meeting of members in May. The main change is to the composition of the Board of Trustees, which will now have five Trustees elected by members in Great Britain, and seven Trustees elected from members outside Great Britain. Another major change is the increase in the number of members serving on the CIArb’s Professional Conduct Committee (PCC) from seven to nine, as an amendment to its Charter and Bye-laws.
The function of the PCC is to investigate any allegation of misconduct against a member of the Institute. Members of the PCC are assigned to investigate an allegation, which involves preparing a written report for the committee. Generally, an individual member undertakes approximately three investigations a year. Committee meetings are currently scheduled to take place four times a year, and members are reimbursed their expenses for attending them. The updated version of the Charter and Bye-laws can be found on CIArb’s website.
Waiting list for next year’s Diploma This year’s Diploma Course in International Commercial Arbitration has run at maximum capacity, warranting a waiting list for next year’s event. Attracting candidates from Nigeria, Malaysia and the US (pictured), the nine-day residential course took place in September at the University of Oxford, UK. Popular among professionals experienced in domestic arbitration because of the opportunity to extend their knowledge to international arbitration, the course provides CPD points and progression onto the international arbitration
pathway to CIArb Fellowship. Delegate Justice Anthony DJ Gafoor MCIArb said: “We were pushed to think about the less obvious issues an international arbitrator might face.” To book for the September 2013 course, please email firstname.lastname@example.org
An agreement setting out the terms of a research plan in ADR has been signed by CIArb and the University CEU of San Pablo, Madrid. The agreement will commit the organisations to promote and facilitate the use of ADR mechanisms in Spanishspeaking countries. The agreement was signed on 11 October by Anthony Abrahams MCIArb, CIArb’s Director General (left), and Juan Carlos Domínguez Nafría, the University’s Chancellor (right).
Food for thought at members’ lunch More than 65 guests attended this year’s CIArb members’ lunch at Smollensky’s Bar and Grill in September. Guests had the chance to network with their peers as well as listen to keynote speaker Patricia O’Brien, Under-SecretaryGeneral for Legal Affairs and UN
Legal Counsel, who has a wealth of knowledge about international law. During the event, more than 100 rum cakes were handed out by the drinks reception sponsor, Conyers Dill & Pearman. We look forward to hosting next year’s lunch just as successfully.
Tribute to a Fellow of CIArb David W. Plant, a Fellow of CIArb, passed away on 25 September 2012 in New London, New Hampshire, the US. A highly-respected domestic and international lawyer and arbitrator, David graduated in engineering and law from Cornell University in New York. David retired in 1998 as
Managing Partner of the firm of Fish and Neave (now Ropes & Gray) after 41 years of practice, and from 1999 served as mediator and arbitrator in more than 300 domestic and international matters. He also lectured at law schools all over the world on dispute resolution. He will be missed by all who knew him.
Should mediation be made compulsory prior to litigation in cases of commercial or family law disputes in jurisdictions where it is not currently mandatory?
69% YES 2% NOT SURE
29% NO SOURCE: WWW.CIARB.ORG
November 2012 | THERESOLVER
p15_CIArbnews new.indd Sec1:15
Don’t forget to give us your opinion of the magazine by completing The Resolver’s readership survey Visit: https://www.surveymonkey.com/s/Y3TNGNQ
BRANCH ROUND-UP LONDON
Seminar attracts Chinese lawyers CIArb London Branch was delighted to welcome a delegation of young lawyers from China to its ninth Annual Clyde/CIArb Mediation Seminar in July. The lawyers spent five weeks in London chambers this summer as part of an English Bar Council initiative and were able to learn more about the UK mediation scene and CIArb. The event, held at Clyde’s new City offices, attracted a capacity audience. Michael Madden FCIArb, lead Winston and Strawn commercial litigator, gave a comparative overview of UK/US mediation practice, with the view that a primary UK incentive for mediation is the costs risk of refusal to mediate. In the US, the drivers are the litigation culture, with contingency fees and triple damages awards, but there may also be judicial pressure.
US mediators are encouraged to be more creative and proactive than in the UK. Confidence in the mediator is crucial, and flexibility and a more evaluative approach bring dividends. Philip Bartle, QC, (pictured below, left) soon to take up his appointment as a Circuit Judge, reviewed the current and proposed schemes of UK court-backed mediation, including the Court of Appeal Mediation Scheme and the Ministry of Justice proposal for a telephone mediation scheme. Sarah Clover, Joint Head of Professional and Commercial Disputes at Clyde (pictured below, second left), considered mediation practice in Professional Indemnity claims. She identified 12 drivers, including reputational issues, Conditional Fee Agreements, flexibility and cost saving.
The London branch has had a busy few months, holding the fourth Joint annual debate with the Franco-British Law Society in May, hosted by Stephenson Harwood and chaired by former Chairman of the Judicial Studies Board, Sir David Keene MCIArb. The topic was Which arbitral seat to choose. Guest speakers included Peter Rosher, Louis Flannery FCIArb, Brandon Malone MCIArb, Klaus Reichert SC and Christian Konrad FCIArb. In June an evening seminar, Dispute resolution in sport: an Olympian task? was hosted by Herbert Smith Solicitors. Sara Sutcliffe, chair and Legal Director at the British Olympic Association (pictured), highlighted the significance of law in player contracts, team selection policies, and anti-doping issues. Christian Leathley, partner, Herbert Smith (also pictured) spoke on corruption issues referring to the Court of Arbitration for Sports (CAS) in Lausanne. In September the Branch held its 8th Annual Joint Seminar with the LCIA, hosted by Orrick Herrington and Sutcliffe LLP. The topic was Arbitration in Asia. The speakers were Robert S. Pé (Hong Kong), Benjamin Hughes (Korea) Christopher Lau SC FCIArb (Singapore) and Datuk Sundra Rajoo FCIArb C.Arb, Director of KLRCA (Malaysia), each of whom gave fascinating insights into arbitration in their respective jurisdictions. The Branch was particularly pleased to congratulate Sundra on recently being appointed “Datuk” (broadly equivalent to Knighthood) for services to arbitration in Malaysia.
Members of the Western Counties Branch enjoyed a sailing trip in the Bristol Harbour aboard The Matthew, which was part of the Thames Diamond Jubilee Pageant. The Matthew was built in 1996 as an almost identical replica of the ship which took John Cabot to Newfoundland in 1497 when he became the first European explorer to discover North America since the Vikings when heading to Asia to trade commodities. 16
THERESOLVER | November 2012
p16_17_branch news.indd 16
CIArb NEWS BRANCH ROUND-UP SINGAPORE
High Tea welcome for ICCA delegates The Institute’s Singapore Branch hosted a High Tea Reception at Eden Hall, the official residence of the British High Commissioner to Singapore, on 10 June, prior to the opening ceremony of the 21st International Council for Commercial Arbitration (ICCA) Congress, which was held at Singapore’s Marina Bay Sands convention centre. The reception, which was free of charge to CIArb members and ICCA participants, was attended by about 350 arbitration practitioners and distinguished guests from around the world, who heard The Right Honourable Lord Saville’s keynote speech on ‘The English Arbitration Act; 15 years on’ (see August 2012 edition of The Resolver). The CIArb event was a huge success and gave guests an opportunity to network, while promoting the Institute to the ICCA delegates and speakers visiting Singapore. Guests were treated to a splendid afternoon
NEWS IN BRIEF The Southern Branch will hold an Arbitrators’ Surgery on Saturday 17 November 2012 at the Holiday Inn, Fareham, with Cliff Wakefield FCIArb as the Course Director. Further information is available from Steve Lelliott FCIArb, steve. email@example.com The Nigerian Branch held its annual conference in June. The theme was “Challenges to dispute resolution in the construction industry
The Branch chair dinner was held in Singapore at the Marina Bay Sands Hotel prior to the ICCA Congress. It offered Branch Chairmen the chance to report on the past programme and exchange views with the Institute for further development of CIArb and its branches. CIArb Congress 2012 will take place in Edinburgh, Scotland, on 16 and 17 November 2012, and the Institute invites Branches’ and members’ views on the strategies in the development of CIArb. The views of the members will be taken into account at Congress when finalising the draft plan. Should you have any suggestions on these, please feed back in writing via firstname.lastname@example.org
Eden Hall: home to the British High Commissioner to Singapore tea and each guest received a commemorative book of arbitration rules among other souvenirs. Special thanks are extended to all the sponsors and supporters of the reception, as well as 39 Essex Street Chambers
– which way out for contractors, publicprivate partners and concessionaires?” The Young Members’ Group held its annual Mock Arbitration at the Nigerian Law School. Following the successful training conducted by the Nigeria Branch for members of the Kigali International Arbitration Centre, the Branch was again invited by the Institute of Legal Practice and Development, Rwanda, to run the Introduction to Arbitration Course in August. The North Eastern Branch has hosted an event with the Tees
Valley Law Society: “Is litigation fit for purpose in the 21st Century?” Anthony Glaister MCIArb, led with a critique of the problems solicitors faced in changes to current funding, and in the relatively poor service that clients appeared to receive with regard to the time and expense. Lawyers, he said, should be able to advise on the full panoply of appropriate options at an early stage, and far too often mediation is tried or expert evidence agreed very late in the day. The North American Branch has held a
which sponsored the young members’ essay competition. The winning entry, by Antony Crockett MCIArb, Senior Associate, Clifford Chance LLP, can be read in the November edition of CIArb’s academic journal, Arbitration. series of training programmes including its first in Mexico in August – “Introduction to International Arbitration” – which sold out. There will be a three-part programme in the first week of November in Toronto, and an Advanced Route to Fellowship programme will be conducted in Santiago, Chile, in December, conducted in English, Spanish and Portuguese. In response to demand, the East Asia Branch will present a series of lectures on the “Nuts and Bolts of
* In the August 2012 edition of The Resolver, we referred to Lord Saville as “Lord Mark Saville” on two occasions. This is incorrect and we apologise for any confusion it may have caused.
Arbitration”. Running to June 2013, the lecture series takes participants through every stage of the arbitral process. The first lecture, “Arbitration Agreements – Dos & Don’ts” by Mary Thomson FCIArb, Partner of Brandt Chan & Partners in association with SNR Denton HK LLP, was held at the Hong Kong International Arbitration Centre in September. To allow a wider audience participation across the region, the lecture was live-linked via a Webex transmission to Taipei and Manila, sponsored by Merrill Corporation.
The European Branch held examinations in Modules 1 and 2 in international arbitration in Istanbul in October. The growing interest in courses in the Turkish city is a reflection of Istanbul’s importance as a centre for dispute resolution and the Branch is at the forefront. The Netherlands Chapter held its autumn meeting in September in the Amsterdam offices of DLA Piper. Diederick de Groot gave a detailed look at the Eco Swiss v. Benetton case. The Chapter’s next meeting will be in early 2013.
November 2012 | THERESOLVER
p16_17_branch news.indd 17
TRAINING CIArb professional training diary November 2012 – December 2013 Courses held at 12 Bloomsbury Square, London (unless otherwise indicated) Introduction to Mediation The general principles of mediation. 30 April/30 October 2013 Duration: 1 day Fee: £480 Module 1 Mediation Skills and knowledge necessary to become an accredited mediator. 11, 12, 13, 15 & 16 March 2013 Duration: 5 days Fee: £3,114 Module 2 Mediation An assessment programme for becoming a CIArb Member and accredited mediator. 20 March 2013 Duration: 1 day Fee: £1,800 Module 3 Mediation Relevant legal systems and mediatorrelated laws for comprehension of the context of a dispute. 4 March/7 October 2013 Duration: 7 months Fee: £1,320 Module 4 Mediation Robust academic knowledge of a chosen area of mediation. Open Entry Duration: 6 months Fee: £660 Introduction to Arbitration Understanding the principles of arbitration. 24 April/15 October 2013 Duration: 1 day Fee: £480 Module 1 – Law of Obligations and Civil Evidence Key relevant aspects of a local jurisdiction’s approach to obligations and evidence. 4 March/7 October 2013 Duration: 7 months Fee: £1,320 Module 2 – Domestic Arbitration Provides a detailed knowledge and understanding of the law of arbitration. 14 October 2013 Duration: 5 months Fee: £1,320 Module 3 – Domestic Arbitration Guided practice in the main procedural elements in a domestic arbitration. 7 October 2013 Duration: 6 months Fee: £1,860 Module 4 – Domestic Arbitration Practice in all the requirements for the writing of a final, reasoned award. 14 October 2013 Duration: 4 months Fee: £1,320 Accelerated Route to Membership 27-28 February/28-29 November 2013 Duration: 2 days Fee: £1,320
Further information on all professional training courses can be found at: → www.ciarb.org/course-finder Education Team • T + 44 (0)20 7421 7439 • F + 44 (0)20 7404 4023 • E email@example.com KEY: MEDIATION ARBITRATION INTERNATIONAL ARBITRATION GENERAL ADR
Accelerated Route to Fellowship 19-20 March 2013 18-19 November 2013 Duration: 2 days Fee: £1,860 Introduction to International Arbitration An understanding of the general principles of international arbitration. 7 December 2012 Duration: 1 day Location: British Virgin Islands Please contact the Caribbean Branch for further details. 13 April 2013 Location: Atlanta, Georgia Please contact the North America Branch for further details. 6 March 2013 12 June 2013 4 November 2013 Location: London Fee: £480 Module 2 International Arbitration Differences in international arbitration law as applied to different common and civil law jurisdictions. 11 March 2013 14 October 2013 Duration: 5 months Fee: £1,320 Module 3 International Arbitration Guided practice in the procedural elements involved in a commercial arbitration. 11 March 2013 7 October 2013 Duration: 6 months Fee: £1,860 Module 4 International Arbitration Practice in all the requirements for the writing of a final, reasoned award. 18 March 2013 28 October 2013 Duration: 4 months Fee: £1,320 Diploma in International Commercial Arbitration 14-22 September 2013 (Part 1) Location: Oxford Duration: 9 days Fee: £6,000 14-22 September and 28 October 2013 (Parts 1 and 2) Location: Oxford Duration: 9 days + 4 months Fee: £7,200 Accelerated Route to Membership A fast-track route to Membership through the international arbitration pathway. 27-28 February 2013 17-18 July 2013 28-29 November 2013 Duration: 2 days Fee: £1,320 7-8 December 2012 Duration: 1.5 days Location: British Virgin Islands Please contact the Caribbean Branch for further details. Accelerated Route to Fellowship A fast-track route to Fellowship through
ADJUDICATION ARBITRATION & ADJUDICATION ARBITRATION & ADR
the international arbitration pathway. 19-20 March/6-7 August 2013 18-19 November 2013 Duration: 2 days Fee: £1,860 12 April 2013 Duration: 1 day Location: Atlanta, Georgia Please contact the North America Branch for further details. Accelerated Route to Fellowship (International Arbitration) with Award Writing Examination A fast-track route to Fellowship through the international arbitration pathway. 29 November - 1 December 2012 Duration: 3 days Location: Santiago, Chile Please contact the North America Branch for further details. Introduction to ADR A complete explanation of the main categories of alternative dispute resolution. 5 March 2013 21 May 2013 24 September 2013 25 November 2013 Duration: 1 day Fee: £420 Introduction to Adjudication The general principles of adjudication. 12 February 2013 30 September 2013 Duration: 1 day Fee: £480 Module 2 Adjudication Provides a detailed understanding of the legal and procedural principles involved in statutory adjudication. 14 October 2013 Duration: 5 months Fee: £1,320 Module 3 Adjudication Provides a detailed knowledge of and guided practice in the main procedural elements of a commercial adjudication. 28 October 2013 Duration: 6 months Fee: £1,860 Module 4 Adjudication Provides knowledge of and practice in all the requirements for the writing of a final, reasoned and enforceable adjudication decision. 21 October 2013 Duration: 4 months Fee: £1,320 Accelerated Route to Membership A fast-track route to Membership through the adjudication pathway. 22-23 April 2013 Duration: 2 days Fee: £1,320 Accelerated Route to Fellowship A fast-track route to Fellowship through the adjudication pathway. 18-19 June 2013 Duration: 2 days Fee: £1,860
CIArb EVENTS SPOTLIGHT CIArb’s Alexander Lecture The Alexander Lectures were originally created as public lectures given by distinguished members of the Judiciary, legal practitioners and other eminent speakers in the field. This year’s evening lecture will be delivered by Mr Jan Paulsson, Vice President of the International Court of Arbitration and head of international arbitration at Freshfields Bruckhaus Deringer, on 29 November in London. Tickets are now free of charge for members and £50 + VAT for non-members. More details can be found at → Email: firstname.lastname@example.org International Commercial Agreements and Dispute Resolution through Arbitration This six-day course covers arbitration and other methods of dispute resolution in Switzerland, Russia and England. It takes place from 25 to 30 November 2012 in Geneva, Switzerland. More details can be found at → Email: email@example.com Two workshops on ‘Crossexamination’ in International Arbitration, China Workshop in Beijing on 10 and 11 December and in Shanghai on 14 and 15 December on “Cross-Examination in International Arbitration.” More details can be found at → Email: firstname.lastname@example.org or on +86 10 8468 3216 European Branch Annual Conference and AGM The European Branch will celebrate its 20th year with its annual conference and AGM, at the Grand Hotel Tremezzo, Lake Como, Italy, scene of the Branch’s first formal gathering in 1993. The conference will be held from 19 April until 21 April 2013. More details can be found at → www.ciarb.org/conferences CIArb International Arbitration Conference Organised and hosted by the Malaysia Branch, the conference theme is Tapping Asia’s Growth. It will be held at the E & O Hotel, in George Town, Penang, Malaysia on 22 to 24 August 2013. For enquiries, please email Ashok Kumar Mahadev Ranai, FCIArb, at email@example.com
SAVE THE DATE
The Director General of CIArb, Anthony Abrahams MCIArb, will address the North West Branch at its AGM on 4 March 2013, at the Daresbury Park Hotel, Warrington, UK. → www.ciarb.org/conferences
THERESOLVER | November 2012
p18 what's onNEW.indd 18
RES.04.12.019.indd Ciarb Foyles.FP.indd 11
22/10/2012 11/10/2012 16:25 10:44
Arbitrators Flyer 1.ai 18 10/2/2012 4:23:12 PM
RES.04.12.020.indd Ciarb 2013.FP.indd 1
22/10/2012 11/10/2012 16:26 10:43
Published on Nov 1, 2012