Intl Arbitration Outline[1] - Chapter 1 Introduction I.1.c...

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Chapter 1 – Introduction I.1.c – Arbitration and Mediation World Intellectual property Organization (WIPO) Guide to Mediation Mediation – 2 main ways mediators assist: 1) facilitative mediation – facilitate commo, perspective, etc 2) evaluative mediation – makes a non-binding assessment of the dispute Process: 1) Request Mediation 2) Appoint Mediator 3) Initial Contact btwn Mediator & Parties - meet, exchange documents 4) Later Meetings - agree to ground rules, gather information, develop options for settlement, look at options 5) Conclusion How does mediation differ from Arbitration? Arbitration – (3 Party) Parties cede decision-making power over the dispute to an arbitrator. Decisions are made based on an OBJECTIVE STANDARD. o How does arbitration differ from mediation? Objective standard Goal : a final judgment Authority: Can determine THE outcome. Mediation – (2/3 party) Non-Binding. Confidential. Parties retain responsibility & control of the dispute & do not cede the power to an intermediary a. Role of mediator is to assist parties in reaching their decisions. (1) Facilitative Mediation - mediator endeavors to facilitate communication btwn parties. (2) Evaluative Mediation - mediator provides a non-binding assessment or evaluation of the dispute and parties are free to accept or reject it. Advantages: - minimizes costs - parties maintain control over the process - speedy settlement - confidentiality Other forms of dispute settlement o Conciliation (Vienna): Settlement of a dispute in a friendly manner. If parties agree, parties can agree to allow conciliator to become the arbitrator. If it fails, the conciliator cannot become the arbitrator. o Med/Arb – Where parties go into mediation, but if mediation fails, the mediator becomes the arbitrator (umpire) and there is a small ‘trial.’ It allows parties to determine whether they like the future arbitrator, and cut out if they don’t like him. o Mini-Trial (Zurich) – One Umpire & 2 associate members (senior officers of the 2 companies) – can mediate, meet, listen to evidence, etc. The panel can make a settlement decision, or if the panel can’t agree, the umpire makes a decision. Outcome: JUDGMENT I.1.d – Technical Expertise o ICC Rules on Expertise In addition to an arbitration clause, parties should include in Ks an expertise clause for the appointment of an expert through the International Centre for Expertise. ICC Expertise Rules Art 8 §3. ICC Expert’s opinion is normally NOT binding (unless they agree it will be) I. 1.e – Adaptation of Contracts Frydman v. Cosmair Inc 1
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o Facts: Defendant, L’Oreal, entered into an agreement to arbitrate the value of plaintiffs’ Paravision shares. Later they also agreed to buy plaintiff’s Paravision holdings at a price to be determined by the arbitrator under 1592 of the French Civil Code. o
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Intl Arbitration Outline[1] - Chapter 1 Introduction I.1.c...

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