Conflict Resolution

Basic Forms of Conflict Resolution Litigation Alternate Forms of Dispute Resolution Negotiation Mediation Arbitration

Advantages of ADR over Litigation Less expensive Less time consuming Parties can choose the person who will preside Might prevent adverse publicity Preserve confidentiality Serves to preserve relationship between the parties

Problems with Arbitration Unpredictable: Not required to follow previous cases Lack of legal training of some arbitrators. Absence of written opinions. No standard rules to follow No Discovery Limited or no appeal Fed. Arb. Act. Sec. 10 Corruption, fraud or other undue means Arbitrator exhibited bias or corruption Refusal to postpone hearing, hear evidence Arbitrator exceeded his/her powers

Arbitration Resolution of a dispute by a neutral third party(s) Arbitrator not constrained by precedent, as is a judge. Award is legally binding. Limited of no Appeal (Finality)

Methods of Securing Arbitration Binding arbitration clause in contract More than 95% of collective bargaining agreements have such clauses. Statute Submission agreement A written contract which can be entered into at any time.

Methods of Securing Arbitration Court Annexed Arbtration Compulsory by court rule Lawsuits below a certain amount of damages ($50,000.) must first be heard at an arbitration hearing. Automatic right of appeal to trial

International Dimensions of ADR ADR is highly favored internationally. New York Convention Makes arbitrators’ awards enforceable in losing party’s country. U.S. policy favors arbitration of international disputes.

Federal Arbitration Act Section 3 If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court … shall onapplication of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, Title 9, US Code, Section 1-14, enacted February 12, 1925

New York Convention United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) To date about 160 nations have adopted the Convention

Article I 1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.

Article II Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

Article III Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

Effects of New York Convention Attracts and protects foreign investment since efficient global trade requires effective international dispute resolution. Provides a reliable mechanism to enforce binding resolution of business disputes without interference from local courts.

Additional Conventions and Treaties Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, "ICSID Convention" or "Washington Convention"). North American Free Trade Agreement ("NAFTA").

Conventions and Treaties Inter-American Convention on International Commercial Arbitration ("Inter-American Convention") is yet another key multilateral convention. The United States and 18 other OAS countries are signatories

Contractual Precaution 1. Insure all parties to contract are based in countries which are signatories of the N.Y Convention 2. Specify place of appeal and limit reasons to those listed in N.Y. Convention. 3. Examine court system of country to determine likelihood of court interference. (Russian Courts likely to interfere)

4. Consider insurance to cover loses. 5. Select place of arbitration considering law governing conduct of the arbitration. Commonly used venues: Paris; London, Geneva; Stockholm; The Hague, Netherlands; Vienna

International Arbitration Associations American Arbitration Association (AAA) ICC International Court of Arbitration - The International Court of Arbitration of the International Chamber of Commerce (Paris, France). ICCA The International Council for Commercial Arbitration.

ICSID The International Centre for the Settlement of Investment Disputes, World Bank, Washington, USA. Created by the Washington Convention. LCIA The London Court of International Arbitration. Permanent Court of Arbitration (The Hague, The Netherlands)

UNCITRAL The United Nations Commission on International Trade Law (Vienna) WIPO The World Intellectual Property Organization (Geneva)

Current Issues EEOC v Waffle House A private agreement between an employer and an employee to arbitrate employment – related disputes does not prevent the the Equal Employment Opportunity Commission from pursuing victim-specific relief, i.e. back pay, reinstatement and monetary damages