issue #03, week 04. 23 January 2008
Prepared by TDM and Aloysius Gng (CEPMLP/Dundee)

TDM News Digest

provides a condensed overview of recent events of interest to the international arbitration community.

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Recent issues:

NEWS

2007 International Arbitration Survey "Corporate Attitudes and Practices: Recognition and Enforcement of Foreign Arbitral Awards"

http://www.law.qmul.ac.uk/2007Arbitrationsurvey.html

Closing date for this online phase of the survey is the 31st of January 2008.

The School of International Arbitration at Queen Mary University of London, with the support of PricewaterhouseCoopers LLP, is conducting the second International Arbitration Survey into the Attitudes of Corporations towards International Arbitration. The 2007 SIA/PwC International Arbitration Survey focuses on the Attitudes and Practices of Corporations towards Recognition and Enforcement of Foreign Arbitral Awards, Settlement and Value of Arbitral Awards and coincides with the 50th anniversary of the New York Convention. The Survey is conducted by Prof. Loukas Mistelis, Director of the School of International Arbitration, and Crina Baltag, PwC Research Fellow in International Arbitration with the School of International Arbitration.

The new Survey explores the experience and perceptions of corporations in order to obtain quantitative and qualitative data about recognition and enforcement world wide, as well as on the settlement process and whether arbitration is actually encouraging the settlement of disputes. The Survey will finally investigate the value of arbitral awards: whether the arbitral awards, as any other commodity, can be sold or exchanged by any means.

Another part of the Survey will deal with the experience and perception of Arbitration Institutions towards recognition, enforcement and value of arbitral awards, as well as on settlement.

The Survey will be conducted during a five-month period and comprises a quantitative (online questionnaire) phase in November 2007 – February 2008, followed by a qualitative one (interviews) in February - March 2008. The interviews are conducted by Prof. Loukas Mistelis, Crina Baltag and Stavros Brekoulakis, Lecturer in International Commercial Arbitration with the School of International Arbitration.

The questionnaire was finalized with the assistance of a Focus Group which included John Fellas, Paul Friedland, Matt Gearing, Paula Hodges, Daniel Kalderimis, Ed Kehoe, Simon Nesbitt, Guy Pendell, Robin Oldenstam, Javier Rubinstein, Kathleen Scanlon, Franz Schwarz, Audley Sheppard and Joe Tirado.

General Counsels and In-House Lawyers interested in participating in the 2007 SIA/PwC International Arbitration Survey may access the online questionnaire at www.law.qmul.ac.uk/2007Arbitrationsurvey.html or send an e-mail to Crina Baltag

Note: in TDM 5 (2006) we published International Arbitration: A Study into Corporate Attitudes and Practices

Introduction

PricewaterhouseCoopers in association with the School of International Arbitration, Queen Mary, University of London, has published a unique study looking into corporate attitudes and practices surrounding international arbitration.

With the growth and complexity of international trade and investment, the resolution of cross border disputes is becoming more and more sophisticated. Increasingly, parties are opting for international arbitration to resolve disputes as opposed to litigation through the national courts. International arbitration can provide distinct advantages over litigation through its more flexible processes and the wide enforceability of awards; yet there are disadvantages, particularly for the unwary.

This study into the views of in-house counsel at leading corporations around the world tests twelve perceptions around international arbitration and uses the empirical evidence from the research to either confirm or challenge these perceptions. The results provide valuable insights for any business that trades or invests abroad. The full academic report entitled "International Arbitration - Corporate Attitudes and Practices. 12 Perceptions Tested: Myths, Data and Analysis; Research Report" produced by Professor Dr. Loukas Mistelis has been published in Volume 15 of the American Review of International Arbitration.

Key findings:

  • A significant majority of corporations prefer international arbitration to resolve their cross border disputes
  • The advantages of international arbitration clearly outweigh the disadvantages
  • Corporations overwhelmingly favour the finality of arbitration awards
  • The tactical significance of some features of international arbitration, e.g. the choice of seat of arbitration may not be fully appreciated
  • A clear dispute resolution policy provides an important strategic advantage when negotiating dispute resolution clauses for cross border contracts
  • There is widespread support for regional arbitration institutions
  • Corporations are looking for arbitrators with an established reputation in the international arbitration community
  • Although international arbitration can sometimes be at least as expensive as transnational litigation, it may represent better value for money
  • With increasing awareness of international arbitration as a dispute resolution process, there is growing demand from corporations for more education on the tools and tactics of international arbitration
  • The outlook for international arbitration is extremely positive - 95% of corporations expect to continue using international arbitration

CEDR Audit suggests mediator pools are in danger of becoming stagnant

January 21, http://www.thelawyer.com/cgi-bin/item.cgi?id=130855&d=415&h=417&f=416

The 2007 CEDR Audit suggests mediator pools are in danger of becoming stagnant as users learn how to mediate unilaterally. The forecast for 2009, however, looks more encouraging.

The Centre for Effective Dispute Resolution (CEDR) Audit 2007, like the previous audits in 2003 and 2005, provides some useful indications of trends in the mediation market, in particular whether it is increasing or static, how mediators are chosen and, allied to that, the role of service providers.

What may be equally useful is to reflect upon what lies behind the current trends. Why has the commercial mediation market not grown more, why is the trend away from service providers and why is mediation in the hands of the few?

…

CNH Full Year Report [2007]

http://www.sys-con.com/read/489223.htm

CNH Global N.V. (NYSE: CNH) reported fourth quarter 2007 net income of $114 million, up compared to net income of $35 million in the prior year. Results include restructuring charges, net of tax, of $6 million in the fourth quarter of 2007, compared with $58 million in 2006.

…

In October [2007], CNH made its final submissions in a consolidated arbitration proceeding in London before the ICC International Court of Arbitration, the final ruling in which is still pending. Full year 2007 results were unfavorably impacted by $55 million due to changes in provisions.

…

Kuwait: Foreign investors may invest in 11 different sectors: KFIB

http://www.arabtimesonline.com/kuwaitnews/pagesdetails.asp?nid=11213&ccid=12

Director of the advertisement and information department at the Kuwait Foreign Investor Bureau (KFIB) Dr Hussein Safar said foreign investors may invest in 11 different sectors in Kuwait. Safar told KUNA among the 11 sectors are non-oil sectors and include infrastructure projects, banking, investment, insurance, information technology, programming, hospitals, medicine, land, sea and air transportation, tourism, hotels, entertainment, culture, media, marketing and publishing houses. He noted that the parliament's amendment of the tax law which lowered the percentage of taxes from 55 percent down to 15 percent is considered among the major encouraging factors to attract foreign investment. Foreign Investment Law (No 8/2001) proposes to regulate foreign investments in Kuwait. Under the new law it is intended to allow foreign investors to own up to 100 percent equity in Kuwaiti companies or ventures for special projects as determined by the Council of Ministers.

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UK: S&N sales discussions kicks off amidst uncertainty

January 17, http://www.beveragedaily.com/news/ng.asp?n=82635-scottish-newcastle-carlsberg-beer

Scottish & Newcastle has today begun talks with Heineken and Carlsberg over a potential 800 pence per share sale, though an imminent deadline and possible interest from competition authorities could yet endanger the deal.

…

BOLIVIA: Demand for World Bank Prez to Respect Bolivia's Withdrawal from Arbitration Court

January 16, http://boliviaoye.wordpress.com/2008/01/17/bolivia-demand-for-world-bank-prez-to-respect-bolivias -withdrawal-from-arbitration-court/

863 Citizen Groups Call on World Bank President to Respect Bolivia's Withdrawal From Arbitration Court. European Telecom International case against Bolivia should be blocked Independent review needed on investor-state arbitration, human rights, and global poverty

WASHINGTON, DC - January 16 - More than 800 citizens groups from 59 countries on every continent presented a petition on Tuesday, January 15 to World Bank President Robert B. Zoellick, expressing concerns about the International Center for the Settlement of Investment Disputes (ICSID), whose Administrative Council Mr. Zoellick chairs.

…

Singapore Legal Sector Onset of Liberalization, Says Singapore Company Incorporation Specialists

http://www.indiaprwire.com/pressrelease/financial-services/200801196780.htm

Adapting to changes as outcome of globalization is becoming imperative to sectors across the board and Singapore's legal sector stands as no exception. On 6 December 2007 the Government declared an in principle agreement to the recommendations of the review committee, headed by Justice V K Rajah, Law Minister S Jayakumar, to propose measures to enhance Singapore's position as an international center for the provision of legal services

Adapting to changes as outcome of globalization is becoming imperative to sectors across the board and Singapore's legal sector stands as no exception. On 6 December 2007 the Government declared an in principle agreement to the recommendations of the review committee, headed by Justice V K Rajah, Law Minister S Jayakumar, to propose measures to enhance Singapore's position as an international center for the provision of legal services.

The recommendations covered three main thrusts — liberalization, law education and disciplinary proceedings for errant lawyers. Liberalization of the sector emerges as the most significant recommendation of the committee in propelling forward the city state's ambition to become the legal hub of the region.

In Singapore, Foreign Law Firms (FLF) and foreign lawyers are regulated by the Legal Profession Act 2000 and associated rules. The present system is highly protective of the local law firms and has many prohibitions for foreign law firms. Foreign firm may only provide legal services in foreign law and not Singapore law. Lawyers, even if admitted locally, are not allowed to practice Singapore law while employed by a foreign law firm. Currently, foreign law firms in Singapore can only engage in offshore "high-end" work in the areas of intellectual property, international arbitration, finance and banking, and maritime laws.

Three key elements of the proposed liberalization are

Open international arbitration Foreign Law Firms may carry out in international commercial arbitration involving Singapore law to include work prior to a notice of arbitration being issued- whereby they can be involved in a case right from the stage when arbitration is contemplated- in the vetting and drafting of Singapore law agreements incorporating arbitration clauses, and advising parties on their legal rights and liabilities in such agreements both before and after the dispute is referred to arbitration. FLFs will practise Singapore law in the expanded areas of arbitration work through Singapore-qualified lawyers employed by the firm.

EJLV An enhanced Joint Legal Venture Scheme where the Foreign Law Firms will be able to directly hire Singapore-qualified lawyers to advice on Singapore law and share up to 49 per cent of the profits with its Singaporean partner firm in the permitted areas of cooperation.

QFLF Under a new Qualifying Foreign Law Firm Scheme, up to five licenses will be granted to foreign law firms to set up shop here. The Government will call for proposals and evaluate them based on criteria such as the firms' commitment to maintain a large outfit. However work pertaining to litigation, and domestic areas of law such as criminal law, retail conveyancing, family law, and administrative law will still be reserved as domains for Local Firms.

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PODCASTS

New episode IDN podcast: A conversation with Northrop Grumman's Assistant General Counsel, Europe, Wolf von Kumberg

International Dispute Negotiation (IDN) is presented by CPR as an example of the ways professionals from different countries and backgrounds approach dispute resolution. The podcast is intended to help listeners understand the risks of disputes and shed insight on optimal ways of accepting, mitigating, and managing those risks in the real world, whether through mediation, arbitration, or litigation that arises far from home. The host is Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas.

EVENTS

Frankfurt Investment Arbitration Moot Court
The Frankfurt Investment Arbitration Moot Court is the first international student competition focussing on investment protection. The students will present their arguments orally on 15 February 2008 before tribunals of arbitration and investment treaty specialists.
February 15 – 16 2008. Frankfurt am Main Chamber of Commerce and Industry, Germany
More information is available at www.investmentarbitrationmoot.com

'Meet the Mediators' - Cross-border disputes - 4 February

http://www.cedr.com/training/flyer.php?param=184

This event profiles leading mediators of international, cross-border disputes. It aims to provide clients with a greater insight into the mediators' approaches and styles and to address current issues relating to mediating within this sector.

Kindly hosted by leading international law firm Lovells, the evening starts with a brief introduction from Graham Massie, CEDR Director and Editor of The EU Mediation Atlas. Chairman, Francis Neate, former President of the IBA with a distinguished legal career including Slaughter & May and Schroders, will then pose questions to the panel and invite further questions from the floor. The evening will conclude with a drinks and canapé reception and informal networking.

Event - Mediation and Arbitration in International Commercial Disputes, 8-10 February

www.uialawasia2008.com

A seminar entitled "Mediation and Arbitration in International Commercial Disputes" is being held from 8-10 February 2008 in Jaipur, India. The seminar is jointly organised by the UIA - International Association of Lawyers and LAWASIA, with the support of the UIA - India Chapter.

The seminar will feature speakers and panelists who are all top experts from the UIA, LAWASIA and India. The approach will be essentially practical and interactive, allowing for questions and debate. A CD-ROM with the presentations and additional material will complete the information offered to the participants.

LCIL Lecture: Procedure and Remedies before Different International Courts and Tribunals - Convergence or Divergence?

http://www.lcil.cam.ac.uk/news/article.php?section=26&article=616

Date: Friday 15th February 2008, 13:00
Speaker : Dr Chester Brown, Legal Division, Foreign and Commonwealth Office
Time : Lecture starts at 1pm (with lunch, sponsored by Cambridge University Press, from 12:30pm)
Venue : Finley Library, Lauterpacht Centre, 5 Cranmer Road, Cambridge

The Centre's Friday Lunchtime Lectures are recognised by both the Law Society and the Bar Council as Continuing Professional Development (CPD) accredited courses.

Short overview of upcoming events

The above information is reproduced from the International Arbitration Planner by kind permission of Lovells (www.lovells.com and www.lovells.com/arbitration). More details on these and many other events can be found at www.arbitrationevents.com

MOVES / JOBS

The silks list in full: 98 new QCs

http://www.thelawyer.com/cgi-bin/item.cgi?id=130870&d=415&h=417&f=416

Ninety-eight lawyers have been made up to Queen's Counsel, the Lord Chancellor and Justice Secretary Jack Straw announced today (22 January).

The only solicitor to be made up to silk was Paul Mitchard, a partner of US law firm Skadden Arps Meagher & Flom and head of the firm's European international arbitration group.

Along with Mitchard, 97 barristers received the coveted title of Queen's Counsel, amongst them Alan Vaughan Lowe (Essex Court Chambers)

…

Terry Shumacher to Join Bernstein Shur's Manchester Office

January 15, http://bernsteinshur.com/news_detail.aspx?pressID=210

MANCHESTER, N.H. - Edward "Terry" Shumaker, a prominent New Hampshire attorney, is joining Bernstein Shur as a shareholder in its Manchester office, officials at the regional law firm announced today.

…

Shumaker is a panel arbitrator and mediator with the American Arbitration Association. He also is an approved mediator by the U.S. District Court in N.H., the New Hampshire Superior Court and the Human Rights Commission.

Gillian Lemaire joins Dewey & LeBoeuf Paris Office

http://www.deweyleboeuf.com/News/detail.aspx?news=6414

International law firm Dewey & LeBoeuf is pleased to announce the arrival of Gillian Lemaire, who joins the Paris office of the firm as senior counsel.

Gillian Lemaire is an international arbitration lawyer with many years of experience and is dual qualified in France and Scotland. She joins partner Eric Schwartz, a former Secretary General of the ICC International Court of Arbitration and senior counsel James Castello, with their team, including associate Sabine Konrad, who was recently appointed to the ICSID panel of arbitrators by Germany.

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First practising barrister joins CEDR Solve Direct mediator panel

http://www.cedr.com/index.php?location=/news/archive/20080114_297.htm

Stephen Bate of 5 Raymond Buildings becomes the first practising barrister to join CEDR's independent mediation service after an amendment to the Bar Code of Conduct last year that enables barristers to participate in the Direct scheme.

The CEDR Solve Direct mediator service enables direct appointments to be booked with a specific 36 mediators, who have agreed to work with CEDR Solve's quality assurance system for their independent mediations. This is in addition to the CEDR Solve mediation appointment referral panel of over 100 mediators.

…

President George W. Bush intends to appoint John M. Townsend ...

http://www.whitehouse.gov/news/releases/2008/01/20080117-4.html

President George W. Bush intends to appoint John M. Townsend, of the District of Columbia, to be a Member of the Panel of Arbitrators of the International Centre for Settlement of Investment Disputes, for the remainder of a six-year term expiring 06/19/08 and an additional six-year term.

ARTICLES

Resolving Disputes with Foreign Biodiesel Customers and Suppliers

By Richard Weiner, http://www.biodieselmagazine.com/article.jsp?article_id=2056

Many American biodiesel companies source their products and equipment from overseas suppliers. Some of them even sell biodiesel plants or equipment to customers in foreign countries. What many of these companies fail to realize is that a dispute between them and their foreign customer or supplier can have serious legal and financial consequences for their company.

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BOOKS

International Law Reports Volume 131

http://www.lcil.cam.ac.uk/news/article.php?section=25&article=632

Edited by Sir Elihu Lauterpacht and Professor Christopher Greenwood, the International Law Reports series is devoted to the regular and systematic reporting in English of decisions of international courts and arbitrators as well as judgments of national courts.

Volume 131 contains, amongst others, refugee cases from Australia, Canada, New Zealand and the United Kingdom, including the House of Lords decision in Roma Rights.