The International Chamber of Commerce (ICC) Rules of Arbitration have been newly revised to take into account current requirements and developments in arbitration practice and procedure since the last revision in 1998. The new Rules are the product of two years of work within the ICC Commission on Arbitration, a think tank of 620 dispute resolution specialists from 90 countries. The ICC will unveil the new Rules and explain the changes at a conference in Paris, on September 12-13, 2011. Topics to be addressed include: General Provisions The first part of this session will focus on the opening provisions of the new Rules concerning the institution, the application of the Rules and the initiation of arbitration proceedings. The new provisions clarify the respective roles of the ICC International Court of Arbitration, its Secretariat and the arbitral tribunals, and confirm the broad scope of ICC arbitration, which is available for disputes arising from investment treaties as well as all kinds of commercial contracts. The new Rules recognize the specificity of the former and arbitrations involving States and State entities. The session will also address filing requirements and confidentiality, including a new provision explicitly allowing for confidentiality orders. The Arbitral Tribunal The constitution of the arbitral tribunal is a core element in any set of arbitration rules, reflecting the adage that an arbitration is only as good as the arbitrator. This session will deal with the changes made in the new Rules to the appointment of arbitrators by the ICC International Court of Arbitration and to the obligations incumbent upon arbitrators, which now explicitly encompass impartiality as well as independence. Improving Time & Cost Efficiency One of the principal aims of the revised ICC Rules – and one of the chief requests from corporate users – was to provide for effective means of controlling time and costs in arbitration. This session will present the revised provisions in this field. They are designed to allow the Secretariat of the ICC Court to constitute arbitral tribunals and turn around draft awards with greater rapidity, and to enable and encourage parties and arbitrators to conduct proceedings in an expeditious and cost-effective manner. Emergency Arbitrator Provisions A new feature in the revised Rules is the provision allowing parties to apply for the appointment of an emergency arbitrator to decide on urgent conservatory or interim measures that cannot await the constitution of the arbitral tribunal. This session will present that provision and an entirely new appendix to the Rules, which sets out the rules governing emergency arbitrator proceedings. Multi-party, multi-contract arbitration and consolidation In the past decade, the transactions underlying the disputes referred to ICC arbitration have become increasingly complex, involving multiple parties and contracts. The new revision has introduced into the Rules for the first time a section devoted specifically to arbitrations involving multiple parties, multiple contracts and consolidation. This session will look at these new provisions and related provisions on the fixing of advances on costs, and consider how they will operate in practice. Information about the conference is here. You may download the conference brochure here. Technorati Tags: law, ADR, arbitration
Continue reading...By Brett Goodman The Court of Appeals of Texas in Dallas has denied an appeal seeking to overturn a trial court’s decision not to compel arbitration. In Adams v. StaxxRing, Inc., No. 05-10-01142 (Tex. App.–Dallas July 7, 2011, no. pet. ) William B. Adams was appealing the decision in favor of Molly Langford and StaxxRing, Inc., a jewelry business equally owned by Adams and Langford. The first strike in any sort of litigation came when Langford sued Adams, claiming that Adams had usurped power from Langford in this equal partnership setting. Through the rest of 2009 and 2010, the litigation went back and forth between the two parties, starting with an answer and assertion of affirmative defenses, to discovery and motions. In mid-2010, the court heard Adams’ motion to compel arbitration and denied it on the bases that (1) there was no agreement to arbitrate the dispute before the court, (2) Adams waived any right he may have had to arbitrate the claims in this case by substantially invoking the judicial process ‘to the clear detriment and prejudice of the plaintiffs,’ and (3) the arbitration demanded by Adams would not provide StaxxRing and Langford with “an accessible and equivalent forum for them to redress their grievances.” In this appeal, Adams asserted that the right to arbitration had not been waived on the two prongs that Adams had not “substantially invoked the judicial process and Langford and StaxxRing [had] not proven they [had] suffered prejudice.” To determine a substantial invoking of the judicial process had been undertaken, the court would have to consider a number of factors in concert. First, Adams did not deny that he had knowledge of the arbitration clause in StaxxRing’s bylaws. Adams had initiated discovery, and it seemed discovery had been completed because Adams moved to compel arbitration only after the discovery deadline had come and gone. Adams also sought temporary injunction relief and a temporary restraining order on the merits, brought third parties into litigation, filed a rule 12 motion, and initiated other independent proceedings. Taking all of these factors into consideration, the court determined the judicial process had substantially been invoked in the case. Concerning prejudice, the court stated, “prejudice refers to the inherent unfairness in terms of delay, expense, or damage to a party’s legal position that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate the same issue.” Republic Ins. Co. v. PAICO Receivables, LLC, 383 F.3d 341, 346 (5th Cir.2004). Unfairness did occur, the court ruled, in the trouble Langford and Staxxring were forced to undertake in the production of documents. This led to increased expense, unnecessary effort on their part, and a negative effect on their legal position in litigation. The court concluded that the invocation of the judicial process combined with the evidence of prejudice demonstrated that Adams had waived the right to compel arbitration. Thus, the trial court’s decision to deny a compelling of arbitration was affirmed in the Court of Appeals. Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.
Continue reading...The Texas Supreme Court issued recently some amendments to its Ethical Guidelines for Mediators. These amendments were adopted in response to recommendations from the Alternative Dispute Resolution Section of the State Bar of Texas and went into effect on June 1, 2011. Find a copy of the amendments here.
Continue reading...The International Bar Association (IBA) will host its Annual Conference in Dubai on October 30-November 4, 2011. The event promises to bring together more than 4,000 lawyers and legal professionals from around the world. More than 180 working sessions cover all areas of practice, offering up to 25 hours of CLE. The preliminary program may be downloaded here. For more details click here. Technorati Tags: law, ADR, arbitration
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.