Conflict Resolution

1
Conflict Resolution
2
Basic Forms of Conflict Resolution

• Litigation
• Alternate Forms of Dispute Resolution
• Negotiation
• Mediation
• Arbitration

3
Advantages of ADR over Litigation

• Less expensive
• Less time consuming
• Parties can choose the person who will preside
• Might prevent adverse publicity
• Preserve confidentiality
• Serves to preserve relationship between the
  parties

4
Problems with Arbitration

• Unpredictable Not required to follow previous
  cases
• Lack of legal training of some arbitrators.
• Absence of written opinions.
• No standard rules to follow
• No Discovery
• Limited or no appeal
• Fed. Arb. Act. Sec. 10
• Corruption, fraud or other undue means
• Arbitrator exhibited bias or corruption
• Refusal to postpone hearing, hear evidence
• Arbitrator exceeded his/her powers

5
Arbitration

• Resolution of a dispute by a neutral third
  party(s)
• Arbitrator not constrained by precedent, as is a
  judge.
• Award is legally binding.
• Limited of no Appeal (Finality)

6
Methods of Securing Arbitration

• Binding arbitration clause in contract
• More than 95 of collective bargaining agreements
  have such clauses.
• Statute
• Submission agreement
• A written contract which can be entered into at
  any time.

7
Methods of Securing Arbitration

• Court Annexed Arbtration
• Compulsory by court rule
• Lawsuits below a certain amount of damages
• (50,000.) must first be heard at an arbitration
• hearing.
• Automatic right of appeal to trial

8
International Dimensions of ADR

• ADR is highly favored internationally.
• New York Convention
• Makes arbitrators awards enforceable in losing
  partys country.
• U.S. policy favors arbitration of international
  disputes.

9
Federal Arbitration ActSection 3

• If any suit or proceeding be brought in any of
  the courts of the United States upon any issue
  referable to arbitration under an agreement in
  writing for such arbitration, the court shall
  onapplication of one of the parties stay the
  trial of the action until such arbitration has
  been had in accordance with the terms of the
  agreement,
• Title 9, US Code, Section 1-14, enacted February
  12, 1925

10
New York Convention

• United Nations Convention on the Recognition and
  Enforcement of Foreign Arbitral Awards
• (New York, 10 June 1958)

To date about 160 nations have adopted the
Convention
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Article I

• 1. This Convention shall apply to the
  recognition and enforcement of arbitral awards
  made in the territory of a State other than the
  State where the recognition and enforcement of
  such awards are sought, and arising out of
  differences between
• persons, whether physical or legal. It shall
  also apply to arbitral awards not considered as
  domestic awards in the State where their
  recognition and enforcement are sought.
• 
  
  

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Article II

• Each Contracting State shall recognize an
  agreement in writing under which the parties
  undertake to submit to arbitration all or any
  differences which have arisen or which may arise
  between them in respect of a defined legal
  relationship, whether contractual or not,
  concerning a subject matter capable of settlement
  by arbitration.

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Article III

• Each Contracting State shall recognize arbitral
  awards as binding and enforce them in accordance
  with the rules of procedure of the territory
  where the award is relied upon, under the
  conditions laid down in the following articles.
  There shall not be imposed substantially more
  onerous conditions or higher fees or charges on
  the recognition or enforcement of arbitral
  awards to which this Convention applies than are
  imposed on the recognition or enforcement of
  domestic arbitral awards.
  
  

14
Effects of New York Convention

• Attracts and protects foreign investment since
  efficient global trade requires effective
  international dispute resolution.
• Provides a reliable mechanism to enforce binding
  resolution of business disputes without
  interference from local courts.

15
Additional Conventions and Treaties

• Convention on the Settlement of Investment
  Disputes Between States and Nationals of
• Other States, "ICSID Convention" or
  "Washington Convention").
• North American Free Trade Agreement
• ("NAFTA").

16
Conventions and Treaties

• Inter-American Convention on International
  Commercial Arbitration ("Inter-American
  Convention") is yet another key multilateral
  convention. The United States and 18 other OAS
  countries are signatories

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Contractual Precaution

• 1. Insure all parties to contract are based in
  countries which are signatories of the N.Y
  Convention
• 2. Specify place of appeal and limit reasons to
  those listed in N.Y. Convention.
• 3. Examine court system of country to determine
  likelihood of court interference.
• (Russian Courts likely to interfere)

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• 4. Consider insurance to cover loses.
• 5. Select place of arbitration considering law
  governing conduct of the arbitration.

• Commonly used venues Paris London, Geneva
  Stockholm The Hague, Netherlands Vienna

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International Arbitration Associations

• American Arbitration Association (AAA)
• ICC International Court of Arbitration - The
  International Court of Arbitration of the
  International Chamber of Commerce
• (Paris, France).
• ICCA
• The International Council for Commercial
  Arbitration.

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• ICSID
• The International Centre for the Settlement of
  Investment Disputes, World Bank, Washington,
  USA. Created by the
• Washington Convention.
• LCIA
• The London Court of International Arbitration.
  
• Permanent Court of Arbitration
• (The Hague, The Netherlands)

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• UNCITRAL
• The United Nations Commission on International
  Trade Law (Vienna)
• WIPO
• The World Intellectual Property Organization
  (Geneva)

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Current Issues

• EEOC v Waffle House
• A private agreement between an employer and an
  employee to arbitrate employment related
  disputes does not prevent the the Equal
  Employment Opportunity Commission from pursuing
  victim-specific relief, i.e. back pay,
  reinstatement and monetary damages