ANNUAL REVIEW

Commercial Arbitration 2014

February 2014  |  LITIGATION & DISPUTE RESOLUTION

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Financier Worldwide canvasses the opinions of leading professionals around the world on the latest trends in commercial arbitration.

 

UNITED STATES

Camilo Cardozo

DLA Piper

"A great variety of factors influence a party’s decision whether to arbitrate rather than litigate its disputes, including the ability to exercise some control over choosing the individuals deciding the dispute, the nature of the dispute, the amount in controversy, and the expectation that in arbitration a dispute would be resolved quicker and cheaper than in litigation – although this is not necessarily always the case."

 

CANADA

Marko Vesely

Lawson Lundell LLP

"The factors that influence a party’s choice of arbitration over litigation in Canada are likely similar to those in other jurisdictions. First, parties can choose an arbitrator with the specific expertise or industry experience needed to adjudicate the dispute effectively. Second, arbitration ensures confidentiality of the process and the outcome. For parties with an ongoing business relationship, such as a mining joint venture, confidentiality can be a key concern."

 

BRAZIL

Ana Tereza Basilio

Basilio Advogados

"In my opinion, there are several reasons why parties are choosing arbitration over the state court. The two main reasons, in Brazil, of course are time and confidentiality. A case at the state court here can easily take over a decade, while arbitration takes around a year. Confidentiality is another major reason, because the process at the state court is usually public, what may bring serious problems to companies, especially when we are talking about sensitive cases, with commercial secrets."

 

MEXICO

Marco Tulio Venegas

Von Wobeser y Sierra, S.C.

"Over the past few decades, arbitration has been increasingly used in Mexico to settle large commercial disputes. Factors driving parties to submit their dispute to arbitration rather than litigation include the heavy case load of Mexican courts. Furthermore, national courts have proven to take a narrower approach to the interpretation of Mexican law and judicial processes are still formally exaggerated compared to arbitration."

 

COLOMBIA

Felipe Piquero

Esguerra Barrera Arriaga

"The use of arbitration in commercial contractual disputes has always been very common, mainly due to the efforts of the Chambers of Commerce in drafting and recommending the use of arbitral provisions. In public contract disputes, the use of arbitration has also become relatively common over the past 20 years. This trend started when legislative amendments showed a clear preference for arbitration."

 

ENGLAND & WALES

Zachary Segal

Dentons

"Although the choice of arbitration versus litigation should always be made on a case by case basis, arguably the single biggest advantage of arbitration is the enforceability of arbitral awards. An arbitral award given in England should, in theory, be enforced without too much difficulty in the courts of the 149 signatories to the New York Convention 1958. By comparison, enforcement of an English court judgment can be problematic outside of the EU."

 

SWITZERLAND

Dieter Hofmann

Walder Wyss Ltd

"Key factors influencing the parties’ choice of arbitration over litigation include the lack of trust in the counter party’s home jurisdiction and, hence, avoiding having to litigate a dispute in that jurisdiction; confidentiality of the arbitral proceedings; the chance to take part in the appointment of the tribunal and, hence, the opportunity to ensure that arbitrators have the background, expertise and experience necessary to deal with the dispute at hand; speedier proceedings; and the opportunity to choose the language of the proceedings."

 

LUXEMBOURG

Fabio Trevisan

Bonn Steichen & Partners

"The choice of arbitration over litigation is usually influenced by the elements of the potential dispute including the nature of the contract; any technical implications; the stakes of the dispute; the place where the contract is being performed; the fact that time may potentially be a major factor; the fact that absolute confidentiality may be required; and the costs the plaintiff is ready to bear in relation to the stakes."

 

PORTUGAL

José Carlos Soares Machado

SRS Legal

"In Portugal, parties usually choose arbitration because it is faster than judicial proceedings. Current judicial procedures can last several years, whereas through arbitration a decision is issued within nine to 12 months. Besides its swiftness, parties value the confidentiality of the arbitration procedure, a rule of law since 2012. Also, the ability to choose arbitrators, especially in very specific fields of business or law, is a factor that influences parties in their choice of arbitration."

 

SWEDEN

Krister Azelius

Advokatfirman Vinge KB

"In my opinion, one of the key benefits of arbitration is the chance to influence who will settle the dispute and the ability to customise what expert knowledge you need in a tribunal. Although Swedish courts have generally shortened their handling time over the last decade, arbitral proceedings are still normally quicker than court proceedings. Swedish parties are less likely to use extensive discovery than common law parties due to the fact that the Swedish Code of Judicial Procedure provides very limited possibility to obtain disclosure of specific documents."

 

TURKEY

Karen Akinci

Akinci Law

"Foreigners are not restricted from being a party to litigation in Turkey, however the litigation process in Turkey can take a substantially long time to get to final award and can become rather expensive. A number of appeals exist, each of which runs to months or years to completely finish. The representing lawyer has to be Turkish and a member of the Turkish Bar Association. The process of arbitration, however, is voluntary and based on party agreement."

 

HONG KONG

Monika Harrington

Gall

"Commercial parties are increasingly recognising the benefits of arbitration over litigation, including the confidentiality of the arbitration process and award, the flexibility of procedural matters, and the option for parties to agree to specific requirements for the selection of arbitrators, such as language skills and any necessary technical expertise. The enforceability of an arbitral award is a key advantage of the arbitration process, particularly for parties involved in cross-border disputes."

 

INDIA

H.S. Chandhoke

Luthra & Luthra Law Offices

"A prime reason parties choose arbitration over litigation is because of its nature as a private mechanism that they select and control. Pendency in court cases and the rigidity of court procedures frequently influence parties in choosing arbitration. Its confidential nature also makes arbitration more desirable. For parties belonging to diverse jurisdictions, arbitration offers neutrality both of law and venue."

 

SINGAPORE

Jamie Harrison

Addleshaw Goddard

"Generally, advocates of arbitration over litigation point to a number of key benefits of arbitration such as speed and efficiency, the ability to appoint arbitrators with sector or geographic market expertise, confidentiality of the proceedings, finality – given the limited ability to challenge awards – and the automatic enforceability of awards in New York Convention countries, without the need to begin separate enforcement proceedings."

 

VIETNAM

Nguyen Trung Nam

EPLegal

"First, in Vietnam, arbitration is much speedier than litigation at court. For example, one simple case usually takes more than six months – if the parties and also the court officials fully cooperate – and the same period of time at the appeal court. On the contrary, a case at institutional arbitration in Vietnam usually takes less than three months for final settlement. Arbitration is especially useful in comparison to traditional litigation in cross-border disputes for the fact that litigation involves judicial authorisation which is very time consuming."

 

UNITED ARAB EMIRATES

Joseph Durkin

Davidson & Co

"The UAE Civil Procedure Code governs arbitration in the UAE. The Civil Procedure Code does not expressly set out a duty of confidentiality in arbitration, however parties are free to incorporate a confidentiality clause within their arbitration agreements, which is normal practice. This is one of the primary influencing factors in parties choosing arbitration over conventional litigation."


CONTRIBUTORS

Davidson & Co

EPLegal

Addleshaw Goddard

Luthra & Luthra Law Offices

Gall

Akinci Law

Advokatfirman Vinge KB

SRS Legal

Bonn Steichen & Partners

Walder Wyss Ltd

Dentons

Esguerra Barrera Arriaga

Von Wobeser y Sierra, S.C.

Basilio Advogados

Lawson Lundell LLP

DLA Piper


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