By Professor F. Peter Phillips ’87
This summer, New York Law School and the American Arbitration Association’s International Centre for Dispute Resolution jointly hosted an International Dispute Resolution “Boot Camp” in London. Expert speakers addressed a variety of cutting-edge topics, but a few themes dominated.
Here are five key takeaways:
1. Don’t involve American courts in international dispute resolution.
Doing so could leave your client with no recourse if the foreign party breaches the contract, especially if the foreign party has no assets in the United States that an American court could attach.
2. Instead, use private international arbitration to resolve disputes.
Arbitrators in the international arena are smart, sophisticated, and procedurally astute. Besides, by virtue of the New York Convention, courts in 153 countries have agreed to enforce an arbitral award in your favor. The same cannot be said for enforcement of judgments from American (or other countries’) courts.
3. Consider early and sophisticated mediation.
Disputes over contracts often arise from flaws in the deal. There are reliable business mediation centers in practically every market in the world and an international system for verifying mediator professionalism. Facilitated, planned, and early negotiation may serve to avoid delay, uncertainty and risk, as well as offering the possibility not only to salvage, but to improve, a valuable business relationship.
4. Study the leading international arbitration centers’ rules.
The International Chamber of Commerce, London Court of International Arbitration, International Centre for Dispute Resolution, International Institute for Conflict Prevention and Resolution, China International Economic and Trade Arbitration Commission, Hong Kong International Arbitration Center, Singapore International Arbitration Centre, and other organizations have promulgated rules to arbitrate commercial disputes quickly, fairly, and cheaply. Ignore them at your peril.
5. Consult with your client.
It’s the client’s deal, the client’s money, the client’s risk and the client’s business relationship. Lawyers can offer options for managing the formation of a deal and guidance on the risks and benefits of cross-border commercial dispute resolution, but in this field even more than others, strategy stems from business, not legal, sensitivities.