Dispute Resolution International October 2009
Dispute Resolution International articles are now available online to members of the Arbitration, Consumer Litigation, Litigation, Mediation and Negligence and Damages Committees. To access the articles in this issue, you will need to sign in using your IBA username and password.
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Emerging Trends in International Litigation: Class Actions, Litigation Funding, and Punitive Damages
Greg L Fowler, Marc Shelley and Silvia Kim
The article explores recent international developments in areas that may impact product liability litigation, namely, class actions, litigation funding, contingency fees and punitive damages. It describes current legislation and legislative proposals and their potential impact on companies doing business internationally. The article concludes that in light of the level of the activity we are witnessing worldwide, companies doing business internationally must pay close attention to these developments and engage in the dialogue as legislative proposals are being considered and implemented, instead of taking a reactive-only approach.
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The Requirement of Equal Treatment with Respect to the Conduct of Hearings and Hearing Preparation in International Arbitration
Reza Mohtashami
Arbitrators have certain duties in conducting proceedings. Chief among them is the observance of the rules of due process which comprise two fundamental limbs: (i) the duty to treat parties fairly and equally; and (ii) to ensure that each party has an opportunity to present his case and deal with that of his opponent. However, these two elements may at times be in conflict. While it is obvious that to be ‘fair’ means to treat parties in equality, it also means that in certain circumstances an arbitrator may have to treat the parties on less than equal terms in order to ensure that the right to be heard is not rendered illusory. This paper considers several scenarios that typically arise in the context of hearings in international arbitration where arbitrators may need to consider whether to abandon the principle of strict equality of litigants to ensure that the parties are treated fairly and are granted a fair and reasonable opportunity to present their case.
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The Perils of Going Global: Personal Jurisdiction May Exist for Foreign Companies in US Courts
Lisa Savitt and Amelia Schmidt
This article will explore when courts in the United States can exercise personal jurisdiction over a non-US defendant. The article will explain the legal framework within which a US court determines whether it can exercise jurisdiction over a foreign defendant, and, in particular, foreign manufacturers sued for injuries caused by defective products. Finally, the article will highlight recent events within the US Congress that could change the ways US courts are obligated to look at the jurisdictional factors relating to foreign companies whose products find a way to the United States.
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Developments in Electronic Disclosure in International Arbitration
David Howell
The disclosure of electronic documents in international arbitration raises particular challenges, due to the nature and volume of electronically stored information. Arbitration is not litigation, and there is a wide agreement that ‘litigation-style discovery’ has no place in international arbitration. The 1999 IBA Rules on Evidence are broadly accepted as a benchmark for appropriate documentary disclosure international arbitration proceedings. A number of arbitration institutions and organisations have addressed, or are considering, guidelines, protocols and rule changes which can act as a useful prompt to arbitrators and to the parties and their counsel.
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Settling Sports Disputes by ADR: Some Major Sports Dispute Resolution Bodies Modelled on the Court of Arbitration for Sport
Ian Blackshaw
Sports disputes are on the increase, especially commercial ones, given the economic significance of sport globally; and the sporting world has embraced alternative forms of dispute resolution (ADR) to settle them. Given the success of the Court of Arbitration for Sport (CAS), which is based in Lausanne, Switzerland and has been operating for 25 years, a number of sports dispute resolution bodies, modelled on the CAS, have subsequently been established in various parts of the world. In this article, we will take a brief look at those in Canada, Japan, Switzerland and the United Kingdom and draw some general conclusions.
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The Mediation of Construction Disputes: Recent Research
Nicholas Gould
King’s College London and the Technology and Construction Court (TCC) undertook an evidence basis survey to gather objective data about the use, effectiveness and cost savings associated with mediations that settled construction industry litigation. From June 2006 until May 2008 parties to litigation in the London, Birmingham and Bristol TCC received a survey form. The aim was to find out in what circumstances mediation offers an effective and efficient alternative to litigation, as well as to determine whether and at what stage the court could or should encourage mediation. The results showed that 35 per cent of those cases that settled after commencing litigation in the TCC used mediation. The vast majority were undertaken as a result of the parties’ own initiative, with the parties also agreeing the identity of their mediator. Successful mediations were undertaken throughout the litigation timetable, saving costs of up to £300,000 with nine per cent of the cases saving more than that amount. The mediation of construction disputes in the TCC is clearly now an established, mature and invaluable dispute resolution tool.
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