recent rule changes in international arbitration · 2018. 12. 31. · consolidation •icdr –...
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Recent Rule Changes inInternational Arbitration:Key Lessons for Practitioners
Steven K. AndersenVice PresidentAmerican Arbitration Association &International Centre for DisputeResolution
May 2016
James R. FergusonPartnerMayer Brown LLP
Sarah E. ReynoldsAssociateMayer Brown LLP
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Speakers
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Sarah E. ReynoldsChicago
+1 312 701 [email protected]
James R. FergusonChicago
+ 1 312 701 [email protected]
Steven K. Andersen, EsqMidvale
+1 619 813 [email protected]
mailto:[email protected]://www.mayerbrown.com/people/salim-jorge-saud-neto/mailto:[email protected]:[email protected]
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Recent Rule Changes in International Arbitration
• Topics
– Emergency Interim Relief
– Consolidation
– Expedited Proceedings
Document Exchange “Discovery Limits”– Document Exchange “Discovery Limits”
– Party Disclosure Duties
– Award Deadline
– Impact on Drafting Arbitration Clauses
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Recent Rule Changes
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International Case Trends
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Emergency Proceedings
• ICDR – Article 6: Emergency arbitration proceedings are availableto parties to ICDR so long as the parties hadn’t “opted –out” of theemergency proceedings. There is no hearing requirement and, ifconstituted, the full arbitration tribunal can vacate or modify anyemergency rulings.
• ICC – Article 29: Emergency arbitration proceedings are available• ICC – Article 29: Emergency arbitration proceedings are availableto parties to the agreement so long as the arbitration agreementwas concluded before 1.1.2012 and the parties hadn’t “opted–out”of the ICC’s emergency proceedings. Emergency default rulings arenot allowed.
• LCIA – Article 9: Unique allows for “expedited formation” of atribunal and for appointment of an emergency arbitrator.
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ICDR: Emergency Interim Relief
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Consolidation
• ICDR – Article 8: ICDR allows consolidation of two or morearbitration pending under any ICDR or AAA rules where (1) partiesagree, (2) claims are made under the same arbitration agreement or(3) where arbitrations have the same legal relationship and parties.
• ICC – Article 10: ICC allows consolidation under essentially thesame circumstances as the ICDR.same circumstances as the ICDR.
• LCIA – Article 22: Enables the arbitral tribunal to consolidatearbitrations, (1) where the parties agree in writing, and with theapproval of the LCIA; and, (2) where multiple arbitrations have beencommenced under the same or compatible arbitration agreements,between the same parties, provided that the arbitral tribunal hasnot been formed for the other arbitration(s).
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ICDR: Consolidation Rule
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Expedited Proceedings
• ICDR – Articles E-1 – E-10: The ICDR is unique in including rulesfor expedited proceedings.
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ArbitratorAppointment
ProceduralConference The Award is
Proceedingson Written
Submissionsdue within
60 Days fromOrder
Estimated 135 day cycle time to get an Award
Applies for Cases below USD $250,000Written Submissions only for USD $100,000
ICDR: Expedited Proceedings
DetailedSubmissions
ArbitratorAppointment
ICDR List dueback within
10 Days
Conferenceand Orderdue within
14 Days fromAppointment
Proceedingswith an OralHearing held
within 60Days from
Order
The Award isdue within
30 Days fromClosing ofHearing
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Document Exchange
• ICDR – Article 21: The ICDR is unique in including documentexchange “U.S. discovery limits” in its rules.
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ICDR Document Exchange Rules
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Party Disclosure Duties
• ICDR – Article 13.5: Failure of a party to disclose anycircumstances that may give rise to justifiable doubts as to anarbitrator’s impartiality or independence within a reasonableperiod…constitutes a waiver of the right to challenge…
• LCIA – Article 10.4: A party may challenge an arbitrator within 15days of the formation of the tribunal or after becoming aware of acircumstances “that give rise to justifiable doubts as to hisimpartiality or independence.”
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Award Deadline
• ICDR – Article 30: “Awards shall be made in writing by the arbitraltribunal and shall be final and binding on the parties. The tribunal shallmake every effort to deliberate and prepare the award as quickly aspossible after the hearing. Unless otherwise agreed by the parties,specified by law, or determined by the Administrator, the final award shallbe made no later than 60 days from the date of the closing of the hearing.”
• ICC – Article 30: “The time limit within which the arbitral tribunal must• ICC – Article 30: “The time limit within which the arbitral tribunal mustrender its final award is six months. Such time limit shall start to run fromthe date of the last signature by the arbitral tribunal or by the parties of theTerms of Reference. . . . The Court may fix a different time limit based uponthe procedural timetable.”
• LCIA – Article 15.10: Final awards are to be rendered as soon asreasonably possible after the last submission from the parties and inaccordance with a timetable.
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Drafting Arbitration Clauses
Scope of Arbitrable Disputes
Conditions Precedent to Arbitration
Governing Law
Number of Arbitrators
Confidentiality
Limitations on Discovery
Timing, Length and Location of Hearing
Form of the Award
Issues Checklist
Number of Arbitrators
Qualifications of Arbitrators
Selection of Arbitrators
Administrator
Governing Rules
Form of the Award
Timing of the Award
Scope of Relief
Equitable Relief
Enforcement
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ICDR Standard Clause
The ICDR offers the following model clause for internationalcommercial contracts:
"Any controversy or claim arising out of or relating to this contract, orthe breach thereof, shall be determined by arbitration administered bythe International Centre for Dispute Resolution in accordance with itsInternational Arbitration Rules."
The parties should consider adding:
• “The number of arbitrators shall be (one or three)”;
• “The place of arbitration shall be [city, (province or state), country]”;
• “The language(s) of the arbitration shall be ___.”
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Mediation Options – ICDR Concurrent Clause
• Any controversy or claim arising out of or relating to this contract, orthe breach thereof, shall be determined by arbitration administeredby the International Centre for Dispute Resolution in accordance withits International Arbitration Rules. Once the demand for arbitrationis initiated, the parties agree to attempt to settle any controversy orclaim arising out of or relating to this contract, or a breach thereofclaim arising out of or relating to this contract, or a breach thereofby mediation, administered by the International Centre for DisputeResolution under its International Mediation Rules. Mediation willproceed concurrently with arbitration and shall not be a conditionprecedent to any stage of the arbitration process.”
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Richard Naimark, [email protected]
Europe, Middle East &India
ICDR Team & Territories
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Steve Andersen,[email protected], Mexico &
U.S.
Michael Lee,[email protected]
Asia
Luis Martinez,[email protected]
Central & SouthAmerica & U.S.
Thomas Ventrone,[email protected]
AdministrativeOffices
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Thank You
For questions, please reach out to:
• James R. Ferguson+ 1 312 701 [email protected]
• Sarah E. Reynolds+1 312 701 7644+1 312 701 [email protected]
• Steven K. Andersen, Esq+ 1 619 813 [email protected]
Visit us:
• https://www.mayerbrown.com/experience/International-Arbitration/
• https://www.icdr.org
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mailto:[email protected]:[email protected]:[email protected]://www.mayerbrown.com/experience/International-Arbitration/https://www.icdr.org/
Recent Rule Changes in �International Arbitration:�Key Lessons for Practitioners�SpeakersRecent Rule Changes in International ArbitrationRecent Rule ChangesInternational Case TrendsEmergency ProceedingsICDR: Emergency Interim ReliefConsolidationICDR: Consolidation RuleExpedited ProceedingsICDR: Expedited ProceedingsDocument ExchangeICDR Document Exchange RulesParty Disclosure DutiesAward DeadlineDrafting Arbitration ClausesICDR Standard ClauseMediation Options – ICDR Concurrent ClauseICDR Team & TerritoriesThank You