Business Conflict Blog

Once again I have had the privilege of teaching the excellent students at New York Law School in International Commercial Dispute Resolution, and once again it has resulted in some superb pieces of written research.  Here is the work of Somya Kaushik, who will be graduating in a few weeks and, clearly, has a promising future in front of her.

Arbitration in India: The Internal Challenges, India as an International Arbitration Destination, and the Risk Analysis for Foreign Investors

Introduction:

In this research paper I will analyze and comment on India’s arbitration and jurisprudence from pre-colonization to post-colonization in 1947. In Part I, I will briefly discuss the goal and purpose of arbitration, for those who are unfamiliar with them, and I will delve into the history of India’s arbitration, including the major legislative acts and arbitration institutions. In Part II I will analyze and comment on the challenges that arbitration in India faces, as well as create. This section will illustrate some of the key issues in Indian arbitration, such as time efficiency, costliness, advantages and disadvantages of ad hoc arbitration in India, difficulties in award enforcements, and issues with public policy as a ground for appeal. Part III will move on to discuss India as an international arbitration destination, considering the strengths and weaknesses that come with Indian arbitration. Lastly, Part IV will provide a risk analysis guide for foreign investors seeking to invest in India’s market. This section will bring awareness to certain issues that may be easily overlooked regarding the judicial process in India and it will also consider the advantages of arbitration in India for foreign investors. Read more »

Tags: ADR Institutions, Arbitration

However effective and broadly adopted the Convention and Rules of the International Centre for Settlement of Investment Disputes (ICSID) have been, the ICSID Conciliation Rules have enjoyed very little respect and have seldom been used.

This is especially to be regretted, because ICSID arbitrations, though relatively few in number, are often time-consuming, recondite, expensive and magnets for ancillary proceedings.  It has also been observed that the outcomes of ICSID arbitrations are less predictable than ordinary international arbitrations, based on a shallow pool of precedent to assist adjudication of fundamental concepts.

Yet the ICSID Conciliation Rules, last amended in 2002, evidence fundamental misunderstandings of the mediation process as practiced by global companies.  They call for a Commission of Conciliators qualified by virtue of their “high moral character and recognized competence in the fields of law, industry or finance,” and making decisions by a majority vote.  Sessions of the Commission resemble hearings, with evidence taken.  Witnesses and experts are heard, and a report is prepared and filed with the Secretary-General of the Centre. Read more »

Tags: ADR Institutions, Mediation

It has long been broadly agreed that the most effective target for education and training in ADR is the lawyers who draft the deals.  Drafting a dispute resolution clause as an elegant risk allocation is surely the Holy Grail of commercial deals.  Model clauses are promulgated by many ADR organizations, but inept and hoary arbitration and forum selection provisions continue to be cut-and-pasted, to the dismay of litigators and the chagrin of their clients, who realize too late, once the train has hit them, what a mess their inattention caused.

The American Arbitration Association has done us all a great service in launching ClauseBuilder.org.  This tool presents the contract drafter with the same considerations that ADR professionals have urged for years, but in an electronic environment that results in an easy-to-use, easy-to-draft dispute resolution provisions. Read more »

Tags: ADR Institutions, conflict management, Lawyers

From the CPR Institute:

CPR’s Patent Mediation Task Force released its Effective Practices Protocol today endorsing the use of alternative dispute resolution (ADR) in patent disputes, an area in which the cost of litigation expenses have become astronomical. Read more »

Tags: ADR Institutions, conflict management, Mediation, systems design