Download STUDYING LAW AT ROME TRE INTERNATIONAL

STUDYING LAW AT ROMA TRE
FALL SEMESTER
INTERNATIONAL ARBITRATION
Domenico Di Pietro
25 October 2010
DRAFTING TIPS AND ARBITRATION PLANNING
Characteristics of the parties
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Nationality
Role in the transaction
Limitations
Immunities
First or one-off transaction?
Awareness of arbitration agreement
The characteristics of the transaction
– Arbitrability
– Long term relationship?
– Confidentiality is an issue?
What kind of arbitration?
– What kind of clause? Tailor made or boiler plate?
– What kind of tribunal? What kind of procedure?
Where?
– Arbitration friendly?
– Local courts’ attitude
SPECIAL-PURPOSE CLAUSES
Escalation Clauses/Multi-Tier
- Is it appropriate for all contracts or all aspects of a contract?
- Binding or non-binding ADR?
Unilateral Arbitration Clauses
- Option for one of the parties to arbitrate rather than litigate
- It encourages claims
- Uncertainty as to first-commenced action
Complex Structures and the Need for Synchronisation
- Multi-party/Multi-agreement structures
- Synchronised clause to provide for different nature of
relationship and parties
ICC MODEL CLAUSE
All disputes arising out of or in
connection with the present contract
shall be finally settled under the Rules of
Arbitration of the International Chamber
of Commerce by one or more arbitrators
appointed in accordance with the said
Rules.
ESCALATION CLAUSES
LCIA MEDIATION AND ARBITRATION
In the event of a dispute arising out of or relating to this
contract, including any question regarding its existence,
validity or termination, the parties shall first seek settlement
of that dispute by mediation in accordance with the LCIA
Mediation Procedure, which Procedure is deemed to be
incorporated by reference into this clause.
If the dispute is not settled by mediation within [............]
days of the appointment of the mediator, or such further
period as the parties shall agree in writing, the dispute shall
be referred to and finally resolved by arbitration under the
LCIA Rules, which Rules are deemed to be incorporated by
reference into this clause.
ANALYSING ARBITRATION CLAUSES I
“Any dispute or claim by one party against the other
shall be amicably resolved by the Parties’
representatives. Should the settlement negotiations
fail, any difference relating to the interpretation of
this agreement, shall be amicably resolved by
arbitration under the rules of the international
arbitration court. The arbitration shall be held in
London or Paris, at the exclusive choice of the
defendant. The parties submit to the exclusive
jurisdiction of the English courts”
ANALYSING ARBITRATION CLAUSES II
“In case of disputes, if any, arbitration, London”
SCENARIO I
European Party A enters into a contract with
Asian Sovereign State B for the supply of 1M
screwdrivers.
Party A will have the screwdrivers
manufactured by South American Party C
SCENARIO II
Research and Development agreement
relating to groundbreaking new chemical
product and relevant trademark.
Parties are European Company A and
Chinese Company B
SCENARIO III
Foreign investor from country A wins bid
launched by host State B for the concession of
the national water and sewage system
Draft Concession contract considering BIT in
place between Countries A&B providing for one
of the following alternatives:
- UNCITRAL arbitration
- ICSID arbitration