Dispute Resolution International

Dispute Resolution International is the journal of the IBA's Dispute Resolution Section. It provides in-depth discussion of current developments and topical issues in all areas of dispute resolution, including litigation, arbitration, mediation and other areas of alternative dispute resolution, as well as negligence and damages.

Dispute Resolution International is edited by Lawrence Schaner, founder of Schaner Dispute Resolution, Chicago. Lawrence is assisted by an Editorial Board comprising leading practitioners from around the world.

Dispute Resolution International is distributed to all members of the IBA Dispute Resolution Section, giving it a readership of approximately 4,000. It is published twice a year and was launched in May 2007. Non-member subscriptions to Dispute Resolution International are also available, and individual articles are available to purchase from the IBA shop.

If you are interested in contributing to Dispute Resolution International, please contact Lawrence Schaner at: LSchaner@schanerlegal.com or Paul Crick at paulcrick@mac.com.

If you are not a member of the IBA, you can find out more about how to join here.

If you are interested in advertising in Dispute Resolution International, our latest media pack is available here.

Recognition for Dispute Resolution International
The Role of the Tribunal Secretary in International Arbitration: A Call for a Uniform Standard, by Michael Polkinghorne and Charles B. Rosenberg, published in the October 2014 issue of Dispute Resolution International, has been awarded Outstanding Professional Article by the International Institute for Conflict Prevention and Resolution. The award recognises articles published by academics and other professionals that advance understanding in the field of alternative dispute resolution (ADR).

• ISSN 2075 5333  • Vol 11, Iss 1-2  • £83.50 per issue

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Latest Issue - Vol 12 No 1 May 2018

Multi-tier dispute resolution provisions have become commonplace in arbitration clauses around the world. These provisions provide that parties must undertake certain steps prior to commencing arbitration in an effort to resolve their disputes. Their objective is to ensure that parties only resort to arbitration once all efforts to settle have failed. Yet, while these provisions are popular and widespread in arbitration clauses, there are substantial risks associated with them. This article examines these risks and proposes solutions that can be deployed by transactional lawyers and arbitration practitioners to minimise them.

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The ability to enforce a judgment is a key consideration in any litigation strategy. As business and business litigation become increasingly international in scope, the ability to enforce a judgment across national boundaries is of increasing importance. In the United States, the multiple judicial systems among the states and territories, in addition to the federal system of courts, adds complexity to issues of enforcement for non-US judgment creditors. Recent divergent decisions in Pennsylvania (Standard Chartered Bank v Ahmad Hamad al Gosaibi and Brothers, et al, 99 A 3d 936 (Pa Super Ct 2014)) and the District of Columbia (Ahmad Hamad A Gosaibi & Brothers Company, et al v Standard Chartered Bank, 98 A 3d 998 (DC 2014)) may complicate recognition and enforcement even further as they come to opposing views on the full faith and credit to be given a judgment by a US sister state court recognising a foreign court judgment.

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This article explores the conflicts of legal cultures and systems that surface during enforcement proceedings for foreign arbitral awards. It first discusses the current international legal regime governing the enforcement of foreign arbitral awards. Then it examines the receptiveness of a civil law jurisdiction towards arbitral awards issued under common law, using Greece as a case study. For this analysis, a specific reference to maritime arbitral awards is appropriate given the position of Greece as a major shipping nation, which results in many enforcement proceedings of maritime arbitral awards. Apart from the general attitude of Greek courts towards foreign arbitral awards, two specific common law institutions that have been addressed by Greek jurisprudence are further analysed: punitive damages and anti-suit injunctions. This analysis aims to shed light on the stance of Greek courts towards arbitral awards hailing from common law systems and the difficulties faced in related enforcement proceedings.

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Recent reforms to arbitration law in Mexico have put private-public projects in a potentially hazardous position, which is illustrated by the recent competing outcomes in the parallel Comissa v Pemex proceedings before the Mexican National Supreme Court and Southern District Court of New York. With administrative rescission entrenched in Mexican law, this article addresses its impact on private-public projects under the Mexican legal system, with specific regard to its recently revised Hydrocarbon Law and its prescribed expectation to exhaust local remedies, against, more broadly, Mexico’s international investment arbitration obligations, namely those standards that protect against uncompensated expropriations, denials of justice, and unfair and inequitable treatment.

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The Arbitration and Conciliation (Amendment) Act, 2015 in India brought with it a novel amendment, one that restricted the timelines for conduct of arbitration proceedings seated in India to a period of one year. This timeline had also been made applicable to arbitrations governed by arbitration rules of international arbitral institutions. So far, section 29 A, which sets out this time limit, has faced increased backlash across users of arbitrations, including institutions, arbitrators and even practitioners, for being a rushed reform detached from the complex reality of dispute resolution.

This article argues that the imposition of time limits was a much-needed introduction in the Indian arbitration landscape, a landscape that was plagued by delayed proceedings and ‘evening arbitrations’. It seeks to draw a parallel with other jurisdictions where such time limits have been imposed and aims to explore how this provision has positively shaped the way arbitrations are conducted in India – a view that most authors have diverged from.

This article is divided into three parts: the first part outlines the scope, conceptual understanding and legislative intent of this provision. The second part analyses the issues pertaining to the procedural complexities and advantages of the provisions, by drawing an international comparative analysis. Finally, the article discusses how section 29A will act as a step to align India with international best practices and propel it to establish itself as a suitable venue for the conduct of arbitrations.

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Regulation (EC) 1206/2001 on cross-border cooperation for the taking of evidence promotes the use of videoconferencing or similar telecommunications technology in litigation. Most Member States recognise this tool in their procedural regulations. Other Member States simply accept it. There are only a few limits set forth in domestic legislation in terms of its use. Further, EU legal developments for videoconferencing have admitted video trials in limited circumstances and video interrogations under a European Investigation Order (EIO). It is foreseeable that the implementation of videoconferencing in the judicial system will continue to grow in years to come as technology provides better and faster means for courts to cooperate in cross-border disputes in the interest of justice. Video trials do not seem to be too futuristic.

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