Mediation and arbitration are often categorized as separate and distinct fields for good reason. Arbitration is an adjudicative process; mediation, on the other hand, is more accommodating, dependent on negotiation among parties. There is a formality attached to arbitration that one usually does not find in mediation. While the arbitration process is prescribed by rules, the mediation experience is created by the parties and the mediator to fit the needs of a particular dispute.
Although these two dispute resolution mechanisms surely have their distinctions, parties, advocates and arbitrators would do well to take lessons from the mediation forum in the preparation for, practice and perhaps resolution of arbitrated disputes. At the core of mediation is negotiation, a skill that can also encourage greater efficiency and economy in arbitration.
Therefore, this post includes practical considerations for parties and arbitrators to leverage negotiation and mediation skills in the arbitration process, particularly where cross-cultural considerations come into play. The post concludes with a short checklist to consider when preparing for negotiation.
Crafting the Clause
Arbitration clauses seem to get lengthier each day. From considerations over the extent of hearing, arbitrator qualifications, information exchange protocols, appellate processes and carefully crafted nuances to established institutional rules…. Parties’ appetite to create bespoke arbitrations is a growing trend.
The problem here is that many clauses are nearly impossible to act on when the dispute finally arises. The requirements are so specific or, at times in conflict, that they are often nearly impossible to adhere to. Moreover, many of the provisions inserted into contracts are already addressed in institutional rules.
Making time at contract initiation to understand a business partner’s interest in tailoring the dispute resolution clause will save future colleagues the time and expense in subsequently re-negotiating for terms that are workable. Concerns over varied approaches to arbitration are especially understandable where parties hail from different jurisdictions.
Addressing the potential for concerns over the arrangement of arbitral proceedings should be addressed upfront with candor. This may be accomplished by simply listening to the concerns of business partners relating to arbitration, asking clarifying questions to better understand their perspective and holding open dialogues to craft arbitration processes that meet both parties’ goals.
Arbitrator and Chair Selection
Negotiation is also critical once a dispute arises and arbitrators must be selected. This is of particular importance where the matter will be heard by a sole arbitrator and also in the selection of a tribunal chair.
One of the great benefits of an arbitral process is the ability to choose a decision-maker qualified to hear the dispute. However, where parties are unable to agree on an arbitrator, the choice often falls to the institution instead. This is an opportunity that should not be abandoned due to an inability to forge agreement.
In the selection process, vetting should not only take into consideration your own preferences, but your opponent’s likely preferences as well. And while strike lists are often exchanged, parties may still meet and review the attributes they agree upon in an arbitrator – before any names are exchanged. Here, the importance of process expertise, subject matter knowledge, availability, cultural background, diverse characteristics and level of experience can be weighed and prioritized together. Thereafter, consideration of preferred candidates may be shared.
While the cross-cultural aspects of these considerations should not be minimized, there is a danger in attributing cultural expectations on an individual person. While researching cross-cultural candidates is a necessary part of the process, it should be done thoughtfully and based on individuals, simultaneously cognizant of the possibility for any implicit biases.
The Tribunal that Negotiates Together, Stays Together
Open and collaborative communications amongst the tribunal are a necessity for a seamless process. While each member of the panel holds this responsibility, it is ultimately the chair who is best positioned to foster a collegial environment with her co-panelists. In some respects, the chair almost assumes the role of quasi-mediator, listening to the concerns and opinions of the panel on the structure of the process and the manner in which party requests are granted or denied. This is perhaps most critical at the award drafting stage, when panelists’ views of the solution may differ.
Parties Should not Lose Sight of Continuing Opportunities for Negotiation Throughout the Process
Opportunities to streamline or dissolve the arbitration process exist throughout. Although a formal process has been initiated and invested in, it is often sensible to explore opportunities for settlement outside the arbitration process.
Arbitration does not foreclose the opportunity for mediation. Whether the jurisdiction or local practice permits traditional arb-med, or parties initiate a mediation that is separate from the arbitration process, mediation may be leveraged to secure a resolution crafted by parties instead of arbitrators.
Negotiation Takes Planning
In each of the examples listed above, it is much easier to conduct the negotiation if some effort has gone into planning for the bargaining and presentation beforehand. With preparations done in advance, you are in a better position to attend the negotiation conversation with the focus required to actively listen and to be open to the path your negotiation takes.
At a high level, a negotiation plan may take the following considerations into account:
Taking time to understand your counterpart’s perspective (what are their priorities and where are there opportunities for shared interests to be explored, etc.) is an important step in the process.
And though it may seem an unreasonable request, cultivating empathy here can go a long way towards a productive conversation. Demonstrating that you have made the time to consider positions other than your own is not only a showing of good faith, but also an ideal way to foster trust and open dialogues.
From crafting an efficient and enforceable arbitration clause, to tribunal dynamics and the opportunity for exploring mutually agreeable settlement terms…. The opportunities to leverage creative negotiation in order to encourage arbitration efficiency abound. This post has provided some examples for parties to consider as they proceed through the arbitration process.
Arbitration, and typically commercial arbitration, is an Alternative Dispute Resolution (ADR) which is agreed by parties of the dispute. Arbitration can be used to replace the traditional way of litigation in court.
Derive from arbitration’s dispute settlement principles, arbitration shows many pros and brings many benefits for parties in commercial dispute, specifically as follows:
A Polish appeals court vacated an International Chamber of Commerce (ICC) partial award for alleged irregularities in the arbitrator's appointment (for further details please see " ICC award set aside due to irregularities in arbitrator's appointment "). The sole arbitrator's final award was also successfully challenged and set aside. The first reason to vacate the final award was also the issue of the sole arbitrator's appointment.
It is normal to inspect the goods that have been lost or damaged during the performance of the sales contract and in the contract of carriage. However, improper inspection can lead to significant disputes and damages that you can refer to below.
The ten years of Law on Commercial Arbitration 2010 (LCA) are also the 10-year development period of VIAC - the first institutional arbitration organization in Vietnam, the organization that goes along with the formation and advancement of the legal framework of commercial arbitration in Vietnam.
Law on Commercial Arbitration (“LCA”) enacted in 2010 was considered a major step forward for the development of commercial arbitration in Vietnam. Compared with the previous years and with international standards, LCA has made remarkable progress, namely recognizing enterprises’ freedom of choice, broadening the scope of arbitration, raising the arbitral tribunal’s authority, valuing court assistance (especially interim measures enforcement), encouraging flexibility in language of arbitration, and improving party’s autonomy in arbitration while maintaining proper manners during arbitral proceedings.
Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.
Law on Commercial Arbitration 2010 (LCA)- the procedural law governing arbitration proceedings whose seat is in Vietnam
Nowadays, as the digital economy emerges, electronic agreements on online websites are becoming more and more prevalent; hence, the legal effect of establishing terms and conditions of service when accessing the website (browse-wrap) and clicking (click-wrap) are of particular interest. The following paper analyzes some of the legal aspects of online agreement conclusion, especially the establishment of the arbitration agreement by means of browse-wrap and click-wrap.
Whether settling disputes in Court or through arbitration, when a party has the burden of proof, it must submit evidence to the arbitral tribunal. The evidence can be in many different forms: Document electronic evidence, audio recordings, video recordings, witness statement, etc. In international arbitration practice, especially in complex disputes, a type of evidence that is frequently used by the parties to defend their opinion/request is testimony/report of "expert witness".
In international commerce and investment, parties to a dispute often select arbitration as an alternative dispute resolution other than litigation in which the court, an authorized state agency, adjudicate disputes. An explanation for this phenomenon is that arbitration may be the optimal means that the parties can exercise their autonomy in writing to select one or several individuals who are not representing state agencies and state power (the so-called private parties) to resolve disputes. However, to prevent the possibility of arbitrators "privatizing" justice,  the New York Convention and the ICSID Convention set out the rules for annulment of arbitral award when such award violates arbitral proceeding. Here, questions arise. What rules of procedure are violated? And to what extent is the commercial and investment arbitral award annulled? This article seeks to elucidate the theory and practice of annulment for violations of procedure under the New York Convention and the ICSID Convention.
Goods can be consolidated, batched, packed, sorted, and grouped for a certain period of time before being loaded onto a trailer for carriage to the consignee. Disputes about whether the time to do these things are within the scope of insurance liability or not is an issue worth knowing (through the lawsuit with the documents of a foreign law firm) below for readers’ reference.
Mr. Vu Anh Duong is the Secretary General of the Vietnam International Arbitration Centre (“ VIAC “), which is the leading Vietnamese arbitration and mediation institution . Mr. Duong has contributed significantly to the development of arbitration in Vietnam in various ways; in addition to his role with the VIAC, Mr. Duong has served as a member of various drafting committees dealing with not only the VIAC’s Rules of Arbitration (2017) (“ VIAC Rules ”), but also Vietnam’s arbitration-related legislation. He also regularly lectures on commercial arbitration and sits as an arbitrator in both international and domestic commercial arbitrations.