International ADR News
May 2014
In This Issue
Upcoming Events
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World Mediation Summit -Madrid July 1-4, 2014..Migration held in Athens, Greece, April and October 2013
The ICDR amends its mediation and arbitration rules:
Sonatrach v Statoil: backdoor attempt to challenge the tribunal's findings of fact
Paris international arbitration team sets precedent
Remedy for non compliance with arbitrator's orders
A Path to Dignity
Book Review:...Islam, Sharia and Alternative Dispute Resolution
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World Mediation Summit -Madrid July 1-4, 2014


 
This Summit is exclusively designed to gather outstanding professional competencies, to share with and to communicate appropriate knowledge to the audience. The topic of this annual event is: 'Dealing with Conflicts of International Interest'. Attendees will receive a proper certificate of attendance and further education by naming the individual year of participation. The summit contains a structure of 50 % interactive trainings, and 50 % of panel discussions and lectures.

 

 

 

    

World Mediation Summit - Madrid 2014
World Mediation Summit - Madrid 2014
  

 

 

 

 

 

The ICDR amends its mediation and arbitration rules: tackling some familiar issues and providing some novel solutions

 

 


 

The International Centre for Dispute Resolution (the ICDR), the international division of the American Arbitration Association has released a new version of its Mediation Rules and its Arbitration Rules (the Rules), effective 1 May 2014.

Many of the changes concern issues which have been the focus of many of the recent institutional rule changes - reducing the time and costs involved in resolving a dispute pursuant to the Rules, dealing with multi-party and multi-contract issues, and providing for emergency measures of protection before constitution of the tribunal. However, the revised Rules also contain some novel aspects. In particular:

  • The adoption of the "international" approach to document production in arbitration into the Rules themselves and confirmation that depositions, interrogatories and other US "discovery" procedures are "generally not appropriate" in an ICDR arbitration (Article 21);
  • Provision for joinder and the appointment of a "consolidation arbitrator" to determine whether multiple arbitrations should be consolidated;
  • An express description of the ICDR list procedure at Article 12(6) for the appointment of arbitrators (barring party agreement to an alternative method); and
  • Express inclusion of a default position on the question of privilege in international arbitration, adopting a highest standard of protection test (Article 22).

 Click here to read entire article on Lexology  

 

 

Sonatrach v Statoil: backdoor attempt to challenge the tribunal's findings of fact receives short shrift from the English court

 

 

"In the case of La Societe pour la Recherche La Production Le Transport La Transformation et la Commercialisation des Hydrocarbures SPA v Statoil Natural Gas LLC [2014] EWHC 875 Comm, the Commercial Court considered an application under section 68 of the Arbitration Act 1996 (the "Act") by the claimant ("Sonatrach") to set aside an arbitration award. Sonatrach argued that under section 68(2)(a) of the Act the tribunal had failed to comply with its general duty under section 33 of the Act by overlooking and mischaracterising two pieces of evidence and improperly using an administrative secretary. Sonatrach's application to set aside the Award for serious irregularity under section 68 of the Act was dismissed on the grounds that Sonatrach was attempting to contest findings of fact made by the tribunal."

 

 

 Click here to read entire article on Lexology  

 

 

Paris international arbitration team sets precedent

 

Farmex, at the time not represented by counsel, lost an international arbitration against the Republic of Armenia. It filed to annul the award before the Paris Court of Appeal, Paris being the place of arbitration.  Since a reform of 2011, applications for annulment of international arbitral awards in France no longer suspend enforcement of those awards.  The law provides for an exception, however, "where enforcement could severely prejudice the rights of one of the parties."  In spite of several attempts by applicants, French courts had always refused to apply that exception so far, in keeping with the pro-enforcement stance of the 2011 reform.

 

The 3 April 2014 decision of the Paris Court of Appeal (CME) in 

Farmex v Armenia

, is the first time a French court has accepted applying that exception and accordingly stay the enforcement of an international arbitral award in France pending the decision on annulment.  That decision also clarifies the extent to which a party can waive its right to apply for annulment of an international award in France, another novelty of the 2011 international arbitration reform in France. It is the first case on that question as well. In spite of some broad waiver language in the arbitration agreement, not expressly referencing the right to apply for annulment however, Dentons was able to persuade the Court that no waiver of the right to file for annulment had taken place. 

 

Farmex v Armenia

 has now established an important precedent on those two essential points for international arbitration practitioners in France.

 

Remedy for non compliance with arbitrator's orders (UK) 

 

Where a party in an arbitration in England refuses to comply with an order of an Arbitrator, the Arbitrator may issue a Peremptory Order (Arbitration Act 1996, Section 41). In Scotland, the equivalent provision is Scottish Arbitration Rule 39 which allows the arbitrator to order compliance.

In England, if the party still fails to comply, the court may make an order requiring compliance (Arbitration Act 1996, Section 42).

 

Facts

In Patley Wood Farm LLP v Brake [2013] EWHC 4035 (Ch), a Section 42 order was sought from the English High Court.

Patley Wood's position in the arbitration was that it had been excluded from a partnership, denied access to the books and accounts and that the Brakes had committed breaches of fiduciary duty.  They sought to dissolve the partnership.  The arbitrator's decision was this should happen, triggering a requirement for dissolution accounts to be prepared.

The Arbitrator ordered the Brakes to provide partnership books and records for the purpose of preparation of these accounts but they refused to do so. 

 

Decision

The court considered the principles applicable to granting of Section 42 orders.  It did so with reference to the only other case on Section 42, Emmott v Michael Wilson and Partners, 2009. 

The principles applicable were:

  • The court required to exercise its discretion as to whether or not to grant the order.
  • This is not a rubber stamping exercise.
  • However, it does not require the court to revisit an arbitrator's award
  • The fact that an arbitrator's award is under appeal is relevant but not conclusive and the Section 42 application should be dealt with on its own merits.

In terms of consideration of the facts:

  • It was a factor that the Brakes had not complied with the order despite being obliged to do so in terms of both the applicable arbitration rules (Section 42 of the 1996 Act which requires compliance with orders of the tribunal and Article 26.9 of the LCIA Rules which states that parties undertake to carry out any award immediately). 
  • The Brakes had not put forward any credible reason to justify this non-compliance.
  • It was inevitable the accounts would require to be disclosed one way or another. 

Comment

This is a further example of the court supporting the arbitration process.  Whilst it will not simply rubber stamp orders of arbitrators, it will not carry out a forensic examination of the reasoning behind such awards or a re-hearing of the issue.  Broadly, if the facts support an order under Section 42, it appears that the courts will be prepared to grant this. 

This is very much in line with the principle in Section 1 of the 1996 Act where the court only intervenes to a limited extent and as provided in the Act.  It therefore, acts in a supporting role, supplementing arbitration as parties' dispute resolution method of choice as necessary.




       A Path to Dignity - A film about Individual Human Rights
  The Universal Declaration of Human Rights is generally agreed to be the foundation of international human rights law. Adopted in 1948, the UDHR has inspired a rich body of legally binding international human rights treaties. It continues to be an inspiration to us all whether in addressing injustices, in times of conflicts, in societies suffering repression, and in our efforts towards achieving universal enjoyment of human rights. It represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights. Whatever our nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status, the international community on December 10 1948 made a commitment to upholding dignity and justice for all of us.

 

A Path to Dignity
A Path to Dignity

 

 

Book Review:  Islam, Sharia and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community
 

MOHAMED M. KESHAVJEE is an international specialist on cross-cultural mediation. With a background in law from Britain and Canada, from 2000 to 2012 he directed, and lectured in, all the international training programs in mediation for the National Conciliation and Arbitration Boards of the Ismaili Muslim community worldwide. He specializes in Islamic and international human rights law and obtained his PhD from the University of London.

 
The meanings and contexts of Shari'a are the subject of both curiosity and misunderstanding by non-Muslims. Shari'a is sometimes crudely characterized by outsiders as a punitive legal system operating broadly outside, and separate from, national laws and customs.

Dr. Keshavjee, in this book  (originally his doctoral dissertation), explores the use of ADR services in the London borough of Hounslow. He carefully examines the interface between the British legal system and the informal Sharia models adopted by the Muslim community.

The book is a great resource to anyone, advocate or mediator, working with cross-cultural families.

 

To Purchase"Islam, Sharia and Alternative Dispute Resolution": 
In an effort to recognize the specialization in the ADR community, we are creating 3 separate newsletters broadly covering these areas:  Mediation - Arbitration - International ADR.  
 
A newsletter focused in one of those areas will be sent out bi-monthly.  In order for you to subscribe to as many types of newsletters that fit your particular practice/interests, please click on the Update Profile/Email Address link at the bottom of this email. From there you will be able to select which newsletters you wish to receive or if you would like to opt out all together.
 
Thank you for reading my newsletter, and as always, if you have any questions on any of the articles listed, do not hesitate to contact me.

 

Sincerely,

 


Thomas Valenti
Thomas P. Valenti, P.C.

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