Why Your Arbitration Agreement Matters: Anticipating Disputes in International Transactions
21 June 2005
On May 3, 2004 the District of Columbia Bar's International Dispute Resolution Committee and Project Finance Committee jointly sponsored a challenging program on "Why Your Arbitration Agreement Matters: Anticipating Disputes in International Transactions." The Program focused on issues to consider in the negotiation of arbitration agreements at the commencement of a transaction, rather than learning about important arbitration issues the hard way once a dispute has arisen. Consequently, the program was of interest to both transactional lawyers and the arbitration community. We therefore believe the Program will be of special interest to readers of Transnational Dispute Management. The speakers comprised a number of leading arbitration practitioners and project finance lawyers in the United States and the topics covered the range of questions that a deal lawyer and a litigator would discuss during negotiation of project documents, as follows.
- Mark Kantor, Washington, DC, and Panelists Generally
Choice of Arbitration Rules and Arbitral Institutions (Is there a practical difference among ad hoc UNCITRAL arbitration, AAA, ICC, ICSID, LCIA, etc.)
- John Pierce,Wilmer Cutler Pickering LLP, New York
Multi-Party Arbitration and Consolidation (since project financings and other complex transactions often have multiple inter-related contracts, advice regarding how multiparty and consolidated arbitrations actually proceed, as well as drafting advice)
- James Carter, Partner, Sullivan & Cromwell LLP, New York
Multi-Step Dispute Resolution Clauses (e.g., negotiation, mediation, then arbitration - the pitfalls)
- Charles Molineaux, Washington, DC
Tailoring the Arbitration Agreement to Specific Needs of the Transaction (e.g., an anticipated need for interim measures or an expedited award, for a specialized tribunal, for a particular discovery framework, for limitations on types or measures of damages, etc.)
- Michael Abbey, Associate General Counsel, OPIC
Unilateral Opt-in/Opt-out Clauses and Similar Issues Tailored to Identity of Parties (transaction-specific issues such as the recent proposal by OPIC and others for a right to opt-in/opt-out between courts and arbitration at the choice of OPIC; other transaction-specific concepts as proposed by panelists)
- Mark Kantor, Washington, DC, and Panelists generally
The Function and Limits of a Party-Appointed Arbitrator (the ideal and reality of impartiality)
- Dana Freyer, Partner, Skadden, Arps, Slate, Meagher & Flom LLP, New York
Early Coordination between Deal Lawyers and Litigators (the role, if any, of litigators in helping structure the arbitration agreement)
- David Kay, OBE, Partner, Gardner, Carton & Douglas, Chicago
Special Considerations for Transactions with State-Owned Entities, including the possible interaction of the arbitration agreement with a bilateral investment treaty (recent ICSID cases dealing with "fork-in-the-road requirements and contract clause vs. BIT arbitration)
- Michael Nolan, Partner, Milbank, Tweed, Hadley & McCloy LLP, Washington, DC
Choice of Situs (is there a real difference among the better known arbitral jurisdictions such as Stockholm, London, Switzerland, France, Austria, US, Singapore, etc.)
- Ken Hansen, Partner, Chadbourne & Park LLP, Washington, DC
Transactional issues that litigators giving drafting advice to deal lawyers do not understand
We are pleased to publish the transcript of this Program on Transnational Dispute Management. If readers have questions about the Program or the activities of the DC Bar International Dispute Resolution Committee, we encourage you to contact Mark Kantor, Committee Chair, or Jean Kalicki of Arnold & Porter.
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