Alternative Dispute Resolution: Basic Concepts

1. Alternative Dispute Resolution: Basic Concepts VICHAI ARIYANUNTAKA

2. Alternative Dispute Resolution V. Conventional (Traditional) Dispute Resolution ADR • Negotiation • Conciliation, Mediation • Arbitration Conventional(Traditional)Dispute Resolution • Litigation, Adjudication

3. “It is almost a truism to state that arbitration is better than litigation, conciliation better than arbitration, and prevention of legal disputes better than conciliation”. Clive Schmitthoff Export Trade, The Law and Practice of International Trade

4. Criteria of Effective Dispute Resolution Mechanism • Fairness • Neutrality • Expertise • Speediness • Expenses, cheap or costly

5. Criteria of Effective Dispute Resolution Mechanism (Continued) • Preservation of Relationship • Bad Publicity, open court with members of the press present • Effective Enforcement, particularly outside the court’s own jurisdiction

6. Reed Tradex Exhibition and Conference Co. Ltd. v. Miller Freeman (Thailand) Co. Ltd. “METALEX 2000” 16 – 19 NOVEMBER 2000 BITEC BANGNA “METALTECH” 16 – 19 NOVEMBER 2000 QUEEN SIRIKIT CONVENTION HALL

7. Alternative Dispute Resolution in IP Disputes • Roger Fisher “Getting to Yes” • Don’t Bargain Over Positions • Separate People from the Problem • Focus on Interests, Not Positions • Invent Options for Mutual Gains • Insisting on Objective Criteria • BATNA – Best alternative to negotiated agreement • Win/Win Solution

8. Seven-elements on negotiation • Interests • Options • Alternatives • Legitimacy • Communication • Relationship • Commitment

9. Conciliation • without prejudice, • confidentiality, • caucus • Beware of limitation period • Neutrality • Dealing with impasse

10. ARBITRATION • New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards 1958 (The New York Convention 1958) • Cambodia and the New York Convention • Accession: 5 January 1960 • Entry into force 4 April 1960 • Implementation and domestic law on arbitration • The UNCITRAL Model Law on Arbitration 1985 provides a world standard

11. Establishment of an Institutional Arbitration Centre in Phnom Penh • Ad Hoc Arbitration and Institutional Arbitration • Institutional Arbitration with its own rules: See UNCITRAL Conciliation Rules and UNCITRAL Arbitration Rules • Government sponsored private institution?

12. Establishment of an Institutional Arbitration Centre in Phnom Penh (Continued) • Some of the Arbitration Centres • ICC (International Chamber of Commerce) -Paris • London (London Court of International Arbitration) • AAA (American Arbitration Association) – New York • CIETAC (China International and Economic Trade Arbitration Commission) • Singapore (SIAC) Hong Kong (HIAC) Kuala Lumpur (AALCC) • Vietnam, Laos, Bangkok

13. MODEL CONCILIATION CLAUSE Where, in the event of a dispute arising out of or relating to this contract, the parties wish to seek an amicable settlement of that dispute by conciliation, the conciliation shall take place in accordance with the UNCITRAL Conciliation Rules as at present in force.

14. MODEL ARBITRATION CLAUSE Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force.

15. NEGOTIATION Professor Roger Fisher, Negotiation Project, Harvard Law School. “GETTING TO YES” paper back • Don’t bargain over position • Separate people from the problem • Focus on interests, not positions • Invent options for mutual gains • Insist on objective criteria

16. NEGOTIATION: Simulative Exercise • Know your “BATNA” • Best alternative to negotiated agreement • Seven Elements • Interests • Options • Alternatives • Legitimacy • Communication • Relationship • Commitment

17. Conciliation V. Mediation • Different role of a conciliator and a mediator • Active V. Passive • Judge as a mediator: Common Law takes different attitude from Civil Law • Adversarial system V. Inquisitorial System • Consent by parties

18. Guidelines: Opening statement by the mediator (Conciliator) • Introductions– conciliator to chair the meeting • Introduce yourself, Thank the parties for coming • Ask each party to introduce themselves- name, title and position • Explain your role and the Process • Role as a neutral, not a decision-maker, not to evaluate, not to give legal advice • Dealing with impasse • Maintenance of neutrality

19. Some Techniques in Conciliation • Request everybody to sign confidentiality Agreement • without prejudice agreement • Request consent to hold caucuses • Maintain neutrality: never in the affirmative, ask questions instead • Impasse: Go to the Balcony • Crack a joke! • Know your BATNA: Best Alternative to Negotiated Agreement

20. UNCITRAL’S Model Law on Conciliation • Adopted by the Commission on 24 June 2002 at the New York Session • Suspension of limitation period: An interesting issue • (1) When the conciliation proceedings commence, the running of the limitation period regarding the claim that is the subject matter of the conciliation is suspended. • (2) Where the conciliation proceedings have terminated without a settlement agreement, the limitation period resumes running from the time the conciliation ended without a settlement agreement.

21. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) • Apply to settlement of disputes between Members (of WTO) concerning their rights and obligations under various Agreements (covered agreements) made between them (Art. 1) • DSB: Dispute Settlement Body (Art. 2) • Prompt settlement of dispute essential to effective functioning of WTO and maintenance of a proper balance between rights and obligations of Members (Art. 3 para 3)

22. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) (Continued) Dispute Resolution Mechanism under WTO • Consultation (Art. 4) • Request in writing, give reasons, identify measures and legal basis (4) • Consultation shall be confidential, and without prejudice to future proceedings (6)

23. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) (Continued) • Good Offices, Conciliation and Mediation (Art. 5) • Parties may begin or terminate the procedure at any time (3) • Director-General may ex officio offer good offices, conciliation or mediation to assist Members to settle a dispute (6)

24. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) (Continued) • Establishment of Panels (Art. 6) • Request in writing to DSB, indicate whether consultations were held, identify the measures at issue, legal basis of complaint, terms of reference • Standard terms of reference “…to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the agreement.”

25. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) (Continued) • Composition of Panels (Art. 8) • Independence, experience and diverse background • Citizen of parties shall not serve (3) • Panel of 3, unless 5 is agreed upon (5) • Dispute between developing and developed country shall include at least one panelist from developing country (10)

26. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) (Continued) • Panelists serve in their individual capacities, not as government or organization representatives (9) • Panelists’ expenses borne by WTO budget (11)

27. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) (Continued) • Composition of Panels (Art. 8) • Independence, experience and diverse background • Citizen of parties shall not serve (3) • Panel of 3, unless 5 is agreed upon (5) • Panelists serve in their individual capacities, not as government or organization representatives (9) • Panelists’ expenses borne by WTO budget (11)

28. Thank YOU • FOR COMMENTS PLEASE CONTACT: ariyanuntaka@hotmail.com