Arbitration Road Map

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Arbitration Road Map: A Guide to Clauses, Procedures, and Hearings

  • Mina A. Brees, Craig S. Miles, and R. Doak Bishop
  • Instant Download! Digital Download Features
  • 1 volume; softbound
  • 126 pages
  • © 2007

 

Arbitration is a popular dispute resolution process because it offers the litigants flexibility, control, potential for significant cost savings, and finality. Typically, arbitration will include some practices that are similar to court adjudication, but in most instances, the process eliminates the extensive discovery, formality, and technicalities of courtroom procedures.

The Arbitration Road Map will guide you through the arbitration process for both domestic and international disputes. The journey begins with strategies for drafting the arbitration clause and ends with enforcing the award. Stops along the way include the substantive and procedural law of arbitration, arbitrator selection, and the hearing process.

The Arbitration Road Map includes an instant download containing the entire manual, with hyperlinked sample clauses, available in RTF, from the American Arbitration Association, the International Chamber of Commerce, and other institutions, as well as hyperlinked international arbitration statutes. A CD-ROM with the same material is also shipped with the hard copy.

CONTENTS

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INTRODUCTION    

PART I ARBITRATION ESSENTIALS

CHAPTER 1      DRAFTING THE ARBITRATION CLAUSE
WHO ARE THE PARTIES?
WHAT WILL THE PARTIES ARBITRATE?
Language to prevent exclusion of matters in dispute

  • “All disputes, claims, controversies, or disagreements”
  • “Relating to, arising out of, or in connection with”
  • Binding versus nonbinding arbitration
  • Confidentiality
  • Waiver

WHERE WILL THE PARTIES ARBITRATE?
WHAT LAW (SUBSTANTIVE, PROCEDURAL, OR BOTH)
WILL THE ARBITRATORS APPLY?

  • The Federal Arbitration Act
  • The New York Convention
  • The Panama Convention
  • The Texas Arbitration Act
  • Other state and national arbitration statutes
  • International law

WHAT RULES WILL APPLY IN THE ARBITRATION PROCESS?

  • The American Arbitration Association
  • The International Chamber of Commerce

SHOULD THE ARBITRATION PROCESS BE AD HOC OR INSTITUTIONAL?

  • Ad hoc arbitration
  • Institutional arbitration

HOW MANY ARBITRATORS SHOULD BE SELECTED?
SHOULD THE ARBITRATORS HAVE ANY SPECIAL QUALIFICATIONS?
HOW WILL THE COSTS, INCLUDING ATTORNEY’S FEES, ARBITRATOR’S FEES, AND INSTITUTIONAL FEES, BE ALLOCATED BETWEEN OR AMONG THE PARTIES?
WHAT TYPE OF AWARD WILL BE PREPARED BY THE ARBITRATORS?
WILL THE AWARD BE ENFORCEABLE OR FINAL?

CHAPTER 2      ARBITRATION PROCEDURE AND HEARING

BEFORE THE HEARING
WHEN THE DISPUTE ARISES

  • Initiation by submission
  • Initiation by demand or notice
  • Initiation by court rule or court order
  • Additional considerations

SELECTING THE ARBITRATOR
THE MANAGEMENT CONFERENCE/PRELIMINARY HEARING

  • Time estimates
  • Amounts in controversy
  • Site selection
  • Discovery, deadlines, and type of award
  • Administration and documentation

EXPEDITED PROCEDURES AND DOCUMENT SUBMISSION
PREARBITRATION REMEDIES
DISCOVERY
AMENDMENT OF A CLAIM
MISCELLANEOUS PRETRIAL MATTERS

  • Protective orders
  • Subpoenas
  • Affidavits
  • On-the-scene investigation
  • Postponements or continuances

THE ARBITRATION HEARING
GENERAL CONSIDERATIONS

  • Waiver of oral hearing
  • Confidentiality
  • Default
  • Court reporters
  • Interpreters
  • Under oath

OPENING STATEMENTS
EVIDENCE

  • Application of rules of evidence
  • Evidence in court-annexed arbitrations
  • Witnesses

BIFURCATION
CLOSING STATEMENTS

CHAPTER 3      JUDICIAL ENFORCEMENT

SCOPE/COVERAGE

  • Provisions
  • Goals
  • Overlapping coverage

PROCEDURES AND STATUTES OF LIMITATIONS
DEFENSES
THREAT OF SANCTIONS
COURT ACTIONS WHEN AN AWARD IS NOT CONFIRMED
ADDITIONAL CONSIDERATIONS

PART II FOR INTERNATIONAL ARBITRATION

CHAPTER 4      INTERNATIONAL ARBITRATION CLAUSES

I. FACTORS AFFECTING ENFORCEABILITY

  • Writing requirements
  • Capacity of the parties
  • Conditions precedent
  • Separability
  • Incorporation by reference

GENERAL CONSIDERATIONS

  • Institutional model clauses
  • Different versions of governing arbitration rules
  • Types of arbitration clauses
  • Basic clauses
  • General  clause
  • Complex  clauses

DRAFTING PRINCIPLES

II. PROVISIONS

ESSENTIAL PROVISIONS

  • Commitment to resolve disputes by arbitration
  • Scope of arbitration
  • Final and binding

IMPORTANT PROVISIONS

  • Number and method of selecting arbitrators
  • Venue
  • Language
  • Entry of judgment

HELPFUL PROVISIONS

  • Qualifications and conduct of arbitrators
  • Interim measures
  • Waiver of appeal

UNUSUAL PROVISIONS

  • Discovery
  • Multiple parties
  • Confidentiality
  • Consolidation
  • Split clauses
  • Summary disposition
  • Arbitrability
  • Consent to appeal
  • Miscellaneous

RELATED PROVISIONS

  • Notice
  • ADR procedures
  • Governing  law
  • Equitable principles
  • Waiver of sovereign immunity
  • Expert determination
  • Exclusion of punitive and consequential damages
  • Costs and attorney’s fees
  • Interest
  • Currency of the award

III. SPECIAL REQUIREMENTS FOR ICSID ARBITRATION

IV. CONCLUSION

CHAPTER 5      INTERNATIONAL ARBITRATION PROCEDURE AND HEARING

I. BEFORE THE HEARING

INITIATION OF THE CASE
PLACE OF ARBITRATION
JURISDICTIONAL OBJECTIONS .
PRELIMINARY CONFERENCE
PROCEDURAL LANGUAGES
TRANSLATIONS WRITTEN SUBMISSIONS
PHASES
DUTY OF DILIGENCE AND CONTROL OF DILATORY TACTICS
PRESENTATION OF EVIDENCE

  • General concepts
  • Presentation of documentary evidence
  • Presentation of oral testimony
  • Evaluation of evidence

EXPERTS

II. THE HEARING
AGREED-ON PROCEDURES
LOCATION OF THE HEARING
ATTENDEES AND PARTICIPANTS
WRITTEN SUBMISSIONS AND PRESENTATION OF WITNESS TESTIMONY
OPENING AND CLOSING STATEMENTS AND ARGUMENTS
PRESENTATION OF EVIDENCE

  • Documentary  evidence
  • Oral testimony
  • TRANSCRIPTS

CONCLUSION
APPENDIX A    SAMPLE ARBITRATION CLAUSES
APPENDIX B-1 CITATIONS TO STATE ADR STATUTES
APPENDIX B-2 INTERNATIONAL ARBITRATION STATUTES
APPENDIX C    SELECTED ARBITRATION INSTITUTIONS AND CONTACT INFORMATION
DISK DOCUMENTATION

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