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OUTLINE - An introduction to commercial arbitration general...

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An introduction to commercial arbitration general introduction (1-34) arbitration and mediation- non binding procedure parties must voluntarily agree to accept it mediator is NOT a decision maker facilitative mediation- mediator endeavors to facilitate communication between the parties Evaluative mediation- mediator provides a non binding assessment or evaluation of the dispute. Confidential procedure Can be used at any stage of the dispute Mostly of unstructured nature- The agreement to mediate Starting the mediation Appointment of a mediator His role Qualifications Number of mediators Nationality Independence Differences with arbitration- Arbitration- outcome is decided in accordance with an objective standard, the applicable law. Mediation- outcome is decided by parties. Arbitration- party tries to convince the arbitrator of its case. Mediation- party tries to negotiate with the mediator or the other party. Steps of mediation- PGS 7-9 Adaptation of contracts- FRYDMAN V. COSMAIR INC. Dispute as to whether parties agreed to arbitrate Court needs to consider the state law that governed the contract formation. Reasoning- Price appraisal is different from an arbitral award and does not carry the weight of a judgment. Price appraisal- means of providing the price term to the contracting parties A price appraisal also thus cannot fall under the NY Convention. An action against this needs to be instituted in a trial level court. The USDC for the SDNY would lack jurisdiction because- The action does not fall under the convention No other basis for federal subject matter jurisdiction has been alleged.
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Arbitration and litigation American ALMOND PRODUCTS CO. V. CONSOLIDATED PECAN SALES CO. INC. PG 17 Dispute resolution and international agreements- Arbitration or litigation- PG 18-20 Institutional and ad hoc arbitration- Proceedings are administered by an organization usually in accordance with its own rules of arbitration. Incorporating by reference the institution’s rules in an international contract. Advantages of ICC Rules- PG 24 Selection of arbitrators Fees Administrative referee to ensure that all arbitrators including the party appointed one are truly independent. Professional administration Guide disputants Routine services- PG 26 Judicial deference to institutional arbitration- Favorable recognition of national courts Default award- Ability to proceed in the absence of a defaulting party In ad hoc it is more difficult to enforce a default award. Ad hoc- no formal administration by any established arbitral agencies instead the parties opt to create their own procedures.
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