arbitration anyone - 2014 olswang construction law conference

2014 Construction Law Conference: Arbitration Anyone? Thursday, 6 February 2014

Andrew Aglionby, Partner [email protected] | +44 20 7067 3492

Why bother with arbitration?

•  Adjudication seems to suit much of the UK construction market

•  Courts are good

•  Judges are more or less free!

•  Money judgments are enforceable across the EU

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So, When to Use Arbitration?

•  International Contracts

•  Joint Ventures, consultants, supply, asset purchase

•  Contracts involving other countries, particularly

•  Outside EU

•  If you would like to avoid local courts

•  When you would like to chose your tribunal

•  Where you want to limit document disclosure

•  Where you want a shorter hearing


Arbitration Pros

•  Confidential

•  Private

•  Hearings are closed

•  Wash the dirt in private

•  Keep commercial secrets


Arbitration Pros (cont.)

•  Enforceable

•  New York Convention

•  Enforcement across borders

•  Very limited appeal

•  Unfairness



Flexible/inclusive Process

•  Recognisable across cultures

•  Agreed by parties

•  Adaptable

•  Less disclosure

•  Shorter hearings

•  Awards of Costs

•  Electronic service of statements



•  Neutral

•  Not caught in local courts

•  Process is a mix of styles

•  Place of arbitration can be neutral



•  Choose your Judge

•  Business/cultural background

•  Experience in topic – e.g., an accountant, or QS.

•  Make sure your points are looked at

•  Often 3 arbitrators, so balanced judgment

•  Institutions (e.g. ICC, LCIA)


Arbitration Cons

•  Pay for

•  Judges/ hearing room

•  Institutional fees (ICC, LCIA etc.)

•  Takes time to start rolling

•  3 months to appoint arbitrator

•  No summary judgment

•  Interim injunctions harder

•  Emergency arbitrators

•  Not clear if CFA uplifts are recoverable

•  Compromise decisions possible

•  Enforcement risk is still present


Arbitration Cons (cont.)

•  Awards do not bind third parties

•  Like parent companies or guarantors

•  And you cannot add unwilling parties


What Does the Market Say?

•  Domestic construction arbitrations are down

•  International commercial arbitrations are up (everywhere!)

•  London

•  Paris

•  Geneva

•  Stockholm

•  Hong Kong

•  Singapore

•  New York

•  Miami

•  Mauritius


What Does the Market Say (cont.)?

•  Investor/state arbitrations are up

•  Expropriation

•  Emergency arbitrators are used

•  BRICs and other emerging nations accept arbitration


Conclusion

•  Arbitration is alive and well

•  Growing

•  Important option, particularly for international contracts

•  Attractions of

•  Confidentiality

•  Flexibility (culture and process)

•  Agreed, chosen route for parties

•  Enforceability


arbitration anyone - 2014 olswang construction law conference

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