1. Can Arbitration Clauses Save Money?
Panel 603

2. PRESENTERS Marian Scheuer General Counsel and Co-Founder
Federal Arbitration, Inc. (FedArb)
Marian Scheuer was a New York State Assistant Attorney General in the Litigation Bureau and a New York City Assistant Corporation Counsel. She is GC at Federal Arbitration, Inc., which offers precedent-based arbitration, mediation, special master, and mock trial services with former federal judges.

3. PRESENTERS Ed Diggs Senior Counsel and Manager of Claims
Bechtel Corporation, OG&C
Ed Diggs is Senior Counsel and Manager of Claims, Bechtel Corporation, Oil, Gas & Chemical, and is responsible for managing all construction claims worldwide for Bechtel’s OG&C. In addition, Mr. Diggs is a registered neutral arbitrator for the American Arbitration Association.

4. PRESENTERS Elizabeth Atlee
Senior Vice President and Deputy General Counsel
CBRE, Inc.
Elizabeth Atlee is Senior Vice President, Deputy General Counsel – Global Litigation and Employment for CBRE, Inc., managing more than 300 active cases and other litigation globally among other duties. Elizabeth is also a commercial litigator with experience in state and federal courts.

5. PRESENTERS Michael Kortbawi Partner and Head of Insurance
BSA Ahmad Bin Hezeem & Associates LLP
Michael is one of the founding partners of BSA Ahmad Bin Hezeem with over 15 years of experience in the UAE and across the GCC. Michael’s areas of expertise includes corporate advisory work in the insurance and oil and gas sectors mainly in Dubai but also across the GCC. Michael has managed several litigation and arbitration claims for a number of multinational companies throughout the region and is Civil Law qualified.

6. AGENDA Are We Using Arbitration Clauses to Control Costs?
Using an Arbitration Clause Effectively
by Marian Scheuer
Cost Considerations in Arbitration - Overview
by Edward W. Diggs
Arbitrations in Employment & Confidentiality
by Elizabeth Atlee
Arbitrations in the GCC
by Michael Kortbawi

7. Are we using Arbitration Clauses to control cost?
Polling Questions
Are we using Arbitration Clauses to control cost?

8. Federal Arbitration, Inc.
Marian ScheueR

9. Number of Arbitrators, with or without appeal
Single arbitrator or panel of three?
Internal Appeal or not?

10. Discovery Add limits? What kind? In ADR clause?
Or specify Rules which include limits on discovery
Often is spelled out in procedural order

11. Expedited Arbitration
Smaller cases (dollar limit)
Consumer cases
Dispositive motions
Number of hearing days

12. Mediation
Contracts usually require mediation because of huge cost savings if successful
Sometimes parties agree to skip it

13. Scope of Arbitration clause
If there are issues that could arise where you prefer not to arbitrate, limit the scope of the ADR clause to the issues where arbitration is preferable.
Class action waiver

14. Applicable State law
State law covering the contract might be stated in another clause.
The law of the forum will be applied unless another law is specified
This applies to procedural law as well

15. Pre-file direct testimony and expert witness statements
The tribunal’s procedural order will cover pre-filing of direct testimony and expert witness material.
The tribunal will ask for the parties’ input.
Also check the rules of your arbitration provider.

16. Deadlines
Check the rules of the provider for how they handle deadlines.
Avoid delay by using a contract term or provider’s rule that requires the arbitrator to ask the case manager, rather than the parties, to extend a deadline.

17. QUESTIONS and answers
QUESTIONS?

18. Bechtel Corporation
Ed Diggs

19. Arbitration vs. litigation
Cost Considerations
Allowance of expanded discovery in arbitrations narrowing the cost delta of arbitrations/litigation
Arbitrators in certain jurisdictions less likely to narrow the scope of discovery than many Judges
Contrary to stated purpose of arbitrations
Arbitration agencies attempting to address discovery issue
Int’l vs. Domestic discovery practices

20. Arbitration vs. litigation
Arbitrators reluctant to issue summary dispositions
Protracted arbitration proceedings = increased costs
Arbitrator fees vs. no fees for Judges
Increased costs resulting in reassessment of arbitrations as preferred dispute forum
Arbitration venue selection impact on costs

21. Arbitration vs. litigation
Key Pros and Cons
Positives:
Confidentiality of dispute/decision
Experience decision maker
Neutral dispute forum/venue

22. Arbitration vs. litigation
Key Pros and Cons
Negatives:
Administration/Arbitrator Fees additional to discovery costs
No guiding precedent decisions (pro or con?)
Can lead to inconsistent decisions by different panels
Limited appeal rights

23. Arbitration vs. litigation
Attempts to reduce costs through arbitration provisions
Limiting scope of documents to be produced (e.g., relevant documents used in prosecution and defense of issues in dispute)
Limiting number of experts allowed in dispute proceedings (note: very risky approach)
Prevailing party litigation costs paid by losing party

24. Subject matter/caseload suitable for arbitration
Year-to-year caseload consisting of numerous cases
Employment cases
Consumer cases
Insurance cases
Large complex cases
Construction
Commercial
Cases involving sensitive information/issues
Proprietary data
Intellectual property secrets (depends which side of the dispute you’re on)

25. delays in arbitration proceedings
Broad scope of discovery
Unlimited issues/evidence allowed
Litigation gamesmanship
Certain protracted administrative processes (mostly in Int’l arbitrations)
Government administered arbitrations in certain jurisdictions (Int’l arbitrations)
Arbitrators’/counsels’ schedules (more casually accommodated)
Agreement of the parties

26. arbitrator selection Experience in disputed issues
Experience litigating cases in arbitration
Time available to devote 100% attention to case
Reputation in the arbitration community
Respect of other panel arbitrators

27. arbitration clauses Less is more
Use of arbitration agency’s standard form provision

28. QUESTIONS and answers
QUESTIONS?

29. CBRE Legal
Elizabeth Atlee

30. Contracts that contain arbitration provisions
Discussion:
Where is it appropriate to include an arbitration provision and what are the cost savings implicated?
Any Contract?

31. Contracts that contain arbitration provisions
Discussion:
B2B – Sophisticated parties who can agree to a dispute resolution provision and understand the repercussions
Doctors/Health Care Providers – Recent issue in CA regarding nursing homes and waiver of class actions for private arbitrations
Employment Agreements – Different in each state but with appropriate safeguards (e.g., employer paying for costs, consideration in signature, etc.) usually a good addition. But question as to whether class actions can be waived with arbitration provision – big issue at Supreme Court (to be heard October 2)

32. Is Arbitration Truly Confidential?
Discussion:
On the agreement, Confidentiality can be maintained if the (1) parties address the issue in detail in the arbitration agreement; (2) Consider: (a) to whom it will apply,(b) to what information it will apply and (c) how documents will be exchanged, (d) how confidentiality will be enforced, (e) how to bind 3rd parties, (f) what penalties apply to a breach of confidentiality; (3) what exceptions to confidentiality should exist; (4) make use of stipulations and protective orders as may be necessary. (Cite to Alexander, Marc, “Confidentiality in Arbitration”, California Litigation Journal, Vol. 30, No. 2, 2017)
Also, confidentiality will be breached when the award is being judicially enforced – must happen unless under seal – hard to get that.

33. QUESTIONS and answers
QUESTIONS?

34. BSA Ahmad Bin Hezeem & Associates LLP
MICHAEL KORTBAWI

35. GCC Arbitration Centres
Kuwait Commercial Arbitration Centre
G.C.C Commercial Arbitration Centre
Bahrain Chamber for Dispute Resolution
Qatar International Centre for Conciliation and Arbitration
Dubai International Arbitration Centre
Abu Dhabi Commercial, Conciliation and Arbitration Centre
DIFC-LCIA
Sharjah International Commercial Arbitration Centre
RAK Commercial and Arbitration Centre
Saudi Centre for Commercial Arbitration
N/A

36. Arbitration in the US vs UAE
Predominantly common law
Most civil matters and matters of commerce can be arbitrated
Arbitration must be in writing to be enforced – no requirement for it to be signed
Based on civil law tradition
Disputes arising over performance of a contract can be arbitrated
Agreement must be in writing and signed . Courts generally decline to enforce arbitration agreements in the form of fine print on terms & conditions and on the back of invoices

37. Arbitration in the US vs UAE
Arbitrators have broad discretion in awarding remedies including awards for monetary and punitive damages
Doesn’t explicitly offer the ability to seek clarification/amendment of an award
Awards are self-executing
The power of the tribunal to award legal costs in the UAE is governed by the parties’ express agreement . There is no culture or practice of reimbursement fees in the region
An arbitrator may only deal with omissions from or clarifications of the award upon a specific request from the courts
Awards must be ratified by the competent court to ensure enforcement

38. Arbitration in the GCC – Advantages
The parties may determine the language, unlike in local courts where proceedings and documents must be in Arabic leading to significant translation costs and ambiguities in translation.
Specialists can be selected and appointed as arbitrators, enabling the tribunal to draw on its own expertise. In contrast, judges in the local courts generally rely on court-appointed experts to determine issues of law.

39. Arbitration in the GCC – Advantages
Guarantees privacy to the extent desired by both parties. Allows parties to avoid public exposure of sensitive business and financial information and negative publicity often associated with litigation.
Arbitration is flexible. Parties can decide whether to conduct arbitration by documentation or by holding hearings. They may also decide on additional issues such as the applicable law, venue, number of arbitrators and preferred professional background.

40. Arbitration in the GCC – Disadvantages
Arbitration in the GCC is often more costly than litigation. Lack of competition allows arbitration centres to fix high costs whereas local courts have lower capped fees. Typically only large companies have the vast resources necessary for arbitration.
There remains is no set rule in the domestic arbitration law that provides an arbitrator with guidance as to which substantive law should be applied to the dispute. Generally, parties are free to decide on the law applicable to the merits of the case.

41. Arbitration in the GCC – Disadvantages
Limited choice in determining place of arbitration. Despite the fact that arbitration has increased in popularity it is still a relatively new concept in the GCC. In fact, the Dubai International Centre for Arbitration was only established in 1994.
Not all disputes can be arbitrated. Employment disputes, criminal matters, matters relating to public policy and personal status issues cannot be arbitrated.
Awards must be ratified by local courts who are known for ‘erratic’ ratification of awards. In many cases ratification leads to the reopening of the case to address its merits.

42. Average Cost For a 10million USD Dispute

43. Can Arbitration Clauses Save You Money?
In the GCC Region – No
Why not?
High Cost – unlike local courts, fees are not capped
Lengthy Process
Lack of uniformity in ratifying awards – Courts are not always inclined to respect an arbitrator’s decision
Ratification requires a civil suit – Claims often flow through three stages: Court of First Instance, Court of Appeal & Court of Cassation
Enforcement proceedings can take up to 24 months

44. QUESTIONS and answers
QUESTIONS?

45. Model Arbitration Clauses

46. MODEL CLAUSE – General Contract clause for ADR
The parties to this contract agree that all disputes based on or arising out of any of its provisions shall be finally resolved, if negotiation and mediation are not successful, through arbitration under the State law of ____ under the administration of Federal Arbitration, Inc. and in accordance with its Rules for Arbitration, using its Expedited Rules unless the parties otherwise agree. The hearing in the case shall be held in _______ or in a place agreed upon by the parties. The case will be heard by one arbitrator unless the parties agree to a panel of three arbitrators.
Whether you designate one arbitrator or a panel of three arbitrators, and whether you choose standard or expedited arbitration will depend on the contract and on business considerations.

47. MODEL CLAUSE – UNICTRAL
Arbitration Provision Pursuant to UNCITRAL Rules (including Appointing/Administration authority). 
Note, this arbitration clause presumes the governing law will be addressed in a separate provision of the contract. 
Dispute Resolution: Any dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination, or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules in effect at the time of the dispute.The appointing authority shall be the [International Bureau of the Permanent Court of Arbitration] [Secretary-General of the Permanent Court of Arbitration] or [London Court of International Arbitration (LCIA)] or [International Chamber of Commerce, International Court of Arbitration (ICC)]. The case shall be administered by the [International Bureau of the Permanent Court of Arbitration in accordance with the Permanent Court of Arbitration Procedures for Cases under the UNCITRAL Arbitration Rules] or [The case shall be administered by the [LCIA in accordance with the LCIA Procedures for Cases under the UNCITRAL Arbitration Rules] or [The case shall be administered by the International Chamber of Commerce, International Court of Arbitration (ICC) in accordance with the ICC Procedures for Cases under the UNCITRAL Arbitration Rules].  The place of the arbitration shall be [insert location of arbitration].  The arbitration will be conducted in [insert preferred language], and all documents shall be translated into [insert preferred language] upon submission in any arbitration proceeding.

48. MODEL CLAUSES – Employment Arbitration
Mutual Arbitration:
As a condition of employment and pursuant to the Federal Arbitration Act, in the event of any dispute or claim between _____________ and __________ (including all of its employees, officers, directors, agents, subsidiary and affiliated entities, benefit plans, benefit plans' sponsors, fiduciaries, administrators, and affiliates, and all successors and assigns of any of them), __________ and ___________ jointly agree to submit all such disputes or claims to confidential binding arbitration and waive any right to a jury trial.
The claims and disputes subject to arbitration include all claims arising from or related to ________'s employment or the termination of ___________'s employment including, but not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (express or implied); tort claims; claims for misappropriation of trade secrets or unfair competition; claims for discrimination, harassment, and/or retaliation (including, but not limited to, claims based on race, sex, religion, national origin, age, marital status, or medical condition or disability); claims for benefits (except where an employee benefit or pension plan specifies that its claims procedure shall culminate in an arbitration procedure different from this one); and claims for violation of any federal, state, or governmental law, statute, regulation, or ordinance.
All claims or disputes subject to arbitration, other than claims seeking to enforce rights under Section 7 of the National Labor Act, must be brought in the party's individual capacity, and not as a plaintiff or class member in any class, collective, or representative action.
Any disputes concerning the validity of this multi-plaintiff, class, collective and representative action waiver will be decided by a court of competent jurisdiction, not by the arbitrator. In the event a court determines this waiver is unenforceable with respect to any claim, then this waiver shall not apply to that claim.
The arbitration (i) shall be conducted pursuant to ____________________ Arbitration Rules & Procedures, which rules are incorporated by reference and may be accessed directly through ______________or its website and (ii) shall be heard before a retired State or Federal judge in the county containing ______________ office in which __________________ was last employed, unless the parties agree otherwise.
(Employer) shall pay for all fees and costs of the Arbitrator, including any fees and costs that would be incurred in a court proceeding. Each party shall pay for its own costs and attorneys' fees, if any, except as otherwise required by law.
Notwithstanding the foregoing, without waiving the right to arbitration, either party may seek provisional relief from a court, to the extent provided by applicable federal or state law, upon the ground that the award to which the party may be entitled may be rendered ineffectual without provisional relief.
This arbitration provision does not preclude the parties from filing charges or participating in any investigation before a federal, state, local or other governmental agency.

49. MODEL CLAUSES – UNITED ARAB EMIRATES (UAE)
In the event of any dispute between the Parties arising out of or relating to this Agreement (including a dispute relating to any non-contractual obligations arising out of or in connection with this Agreement), representatives of the Parties shall, within ten (10) Business Days of service of a written notice from either Party to the other Party (a "Dispute Notice"), hold a meeting (a "Dispute Meeting") in an effort to resolve the dispute. In the absence of agreement to the contrary the Dispute Meeting shall be held at the registered office for the time being of the Company.
Each Party shall use all reasonable endeavors to attend personally or send a representative who has authority to settle the dispute to attend the Dispute Meeting.
Any dispute which is not resolved within twenty (20) Business Days after the service of a Dispute Notice, whether or not a Dispute Meeting has been held, shall, at the request of either Party made within twenty (20) Business Days of the Dispute Notice being served, be referred to arbitration under the rules of DIFC-LCIA Arbitration Centre (the "Rules") before a single arbitrator who shall be appointed in accordance with the Rules. The place of the arbitration shall be Dubai, UAE although hearings may be held elsewhere and the language of the arbitration shall be English. The Parties waive any right of application or appeal to any court, insofar as such waiver can validly be made.
Notwithstanding the foregoing, the Shareholders agree that either of them may seek interim measures including injunctive relief in relation to the provisions of this agreement or the Shareholders’ performance of it from any court of competent jurisdiction in the UAE, which court shall apply the law of the UAE.

50. Thank you Marian Scheuer Elizabeth Atlee Ed Diggs Michael Kortbawi
General Counsel and Co-Founder
Senior VP, Deputy General Counsel
Federal Arbitration, Inc. (FedArb)
CBRE, Inc.
Ed Diggs
Michael Kortbawi
Senior Counsel, Manager of Claims
Partner and Head of Insurance
Bechtel Corporation, OG&C
BSA Ahmad Bin Hezeem & Associates LLP
Thank you