Earlier this month, Dan Harris and I had the pleasure of sitting down and chatting with our colleagues – Cesar García de Quevedo in Spain and Arthur Chiu in China – about strategies and trends we’re seeing in international arbitration. If you missed the webinar, these were some of the key takeaways:
Arbitration Procedure is Becoming Standardized Across the World
We started the webinar presenting on basic arbitration procedure, and it turns out, that procedure is generally the same no matter where you’re situated. China, for example, is relatively new to establishing an institutional arbitration practice, but it’s doing so at a really fast pace. Similarly, Spain is also becoming increasingly popular for disputes between U.S. and European companies, and even between U.S. and Mexican and other Latin American companies. As business globalizes, it’s expected different regions will adapt their ADR processes accordingly – and it looks like arbitration forums are doing just that.
Everyone Agrees – Don’t Skate Past Your Arbitration Clauses
It can be tempting to pull an arbitration clause from an old agreement or worse, from a random internet page. However, spending the extra time and money to ensure your dispute resolution clause is tailored to your specific business relationship or transaction can make all the difference. Arthur also pointed out that model arbitration clauses published by the bigger arbitration institutions can be a great place to start (or even just end up with). For more on this, check out International Dispute Resolution Clauses: Context is Everything.
Language is a Big Consideration
The language of the proceedings matter. We all had war stories in which depositions or examinations were a bit disastrous because translations were not accurate. If your business relationship or transaction crosses borders, it’s important to think about how dispute proceedings can be most efficiently conducted – and, it’s also a good tip to just write what language the proceedings should be in up front to avoid contentious or delayed arbitrations down the line.
Yes, We All Have Favorite Arbitration Institutions
In the U.S., I acknowledged my tendency to go with mega institutions like AAA (or ICDR, its international leg) and JAMS for high stakes cases, but I’ve also used regional services and liked the experience as well. Arthur had great things to say about CIETAC (China International Economic and Trade Arbitration Commission) and Cesar talked about ICC Spain and the relatively new MIAC (Madrid International Arbitration Center) as great options.
No matter where you are, ensuring your arbitrator is both well-versed in your industry and aligned on how to administer the case can make all the difference. It is typically the arbitrators themselves who set case schedules, limit discovery or motion practice as necessary, and make other judgment calls that shape the process.
We truly had a great time talking to our foreign counterparts about this, and we’re looking forward to getting more webinars calendared. Please write in with any questions or discussion points that interest you!