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A (Former) General Counsel’s View ofInternational Commercial Arbitration
Shanghai: International Arbitration Forum
David L. KreiderInternational ArbitratorHong Kong - Auckland
26 June 2014Mandarin Oriental Pudong
David L. Kreider, International Arbitrator
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Negotiating the Arbitration Clause
• Usually done at the last minute.
• Parties seldom have equal bargaining power.
• Pressure from commercial colleagues to avoid controversy.
• Too few (specialist) lawyers on the front end, may result in too many lawyers on the back end after a dispute has arisen.
David L. Kreider, International Arbitrator
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Common Drafting Mistakes
• Use of the permissive “may”, rather than the mandatory “… shall be referred to and finally resolved by arbitration”.
• Providing the incorrect name of the administering institution, e.g., “ … to be administered by the International Arbitration Centre of Singapore”. WRONG!
• An arbitration clause and a clause purporting to invoke the jurisdiction of a national court appear in the same contract.
• The arbitration clause designates an administering institution, but specifies that another institution’s rules will apply. Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR 936; [2009] SGCA 24.
David L. Kreider, International Arbitrator
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“There Are No Dead Ends in Life”天无绝人之路• My own real-life experience resolving a “pathological”
disputes clause.
• Even when parties are in dispute, reason and common sense may prevail in agreeing a substitute arbitral process (a “compromis” or “submission agreement”).
• Provide authoritative third-party publications and independent sources to educate your opposing party about possible alternatives.
• Visit the Singapore International Arbitration website and consider using the Model Arbitration Clause -- www.siac.org.sg.
David L. Kreider, International Arbitrator
Confidentiality
• Public disputes can soil your company’s brand and invite interference by government regulators and others.
• Include a confidentiality clause in your contract.
• Choose a “seat” in a neutral, arbitration-friendly jurisdiction where confidentiality is protected as the default position, e.g., Singapore.
• Make an application to include confidentiality undertakings in the initial procedural order, e.g., Hwang Model Procedural Order on Confidentiality.
5 David L. Kreider, International Arbitrator
Escalation Clauses
• Drafting complexity increases litigation risk and could delay the arbitration.
• Separates the problem from the people.
• Each step a pre-condition to arbitration.
• Short, clear deadlines.
• Include an institutional mediation protocol and appointment method.
• The Singapore International Mediation Center (“SIMC”) will formally open in November 2014, and is already accepting cases.
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Selecting The Arbitrator
• “Perhaps the single most determinative step in the arbitration”.
• Interviewing prospective arbitrators.
• Never discuss or seek to obtain the prospective arbitrator’s views on the substance of the dispute.
• Try to reach agreement on the nomination of the presiding arbitrator – you will by definition get an acceptable candidate!
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Thank you.
David L. KreiderInternational Arbitrator
Email: [email protected]
Chartered Arbitrator. Licensed attorney-at-law in New York, California, New Jersey,Florida, the District of Columbia, England and Wales, and Hong Kong.
David L. Kreider, International Arbitrator