shanghai int'l arbitration forum siac:shiac 26 june 2014

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A (Former) General Counsel’s View ofInternational Commercial Arbitration

Shanghai: International Arbitration Forum

David L. KreiderInternational ArbitratorHong Kong - Auckland

26 June 2014Mandarin Oriental Pudong

David L. Kreider, International Arbitrator

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Negotiating the Arbitration Clause

• Usually done at the last minute.

• Parties seldom have equal bargaining power.

• Pressure from commercial colleagues to avoid controversy.

• Too few (specialist) lawyers on the front end, may result in too many lawyers on the back end after a dispute has arisen.

David L. Kreider, International Arbitrator

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Common Drafting Mistakes

• Use of the permissive “may”, rather than the mandatory “… shall be referred to and finally resolved by arbitration”.

• Providing the incorrect name of the administering institution, e.g., “ … to be administered by the International Arbitration Centre of Singapore”. WRONG!

• An arbitration clause and a clause purporting to invoke the jurisdiction of a national court appear in the same contract.

• The arbitration clause designates an administering institution, but specifies that another institution’s rules will apply. Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR 936; [2009] SGCA 24.

David L. Kreider, International Arbitrator

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“There Are No Dead Ends in Life”天无绝人之路• My own real-life experience resolving a “pathological”

disputes clause.

• Even when parties are in dispute, reason and common sense may prevail in agreeing a substitute arbitral process (a “compromis” or “submission agreement”).

• Provide authoritative third-party publications and independent sources to educate your opposing party about possible alternatives.

• Visit the Singapore International Arbitration website and consider using the Model Arbitration Clause -- www.siac.org.sg.

David L. Kreider, International Arbitrator

Confidentiality

• Public disputes can soil your company’s brand and invite interference by government regulators and others.

• Include a confidentiality clause in your contract.

• Choose a “seat” in a neutral, arbitration-friendly jurisdiction where confidentiality is protected as the default position, e.g., Singapore.

• Make an application to include confidentiality undertakings in the initial procedural order, e.g., Hwang Model Procedural Order on Confidentiality.

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Escalation Clauses

• Drafting complexity increases litigation risk and could delay the arbitration.

• Separates the problem from the people.

• Each step a pre-condition to arbitration.

• Short, clear deadlines.

• Include an institutional mediation protocol and appointment method.

• The Singapore International Mediation Center (“SIMC”) will formally open in November 2014, and is already accepting cases.

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Selecting The Arbitrator

• “Perhaps the single most determinative step in the arbitration”.

• Interviewing prospective arbitrators.

• Never discuss or seek to obtain the prospective arbitrator’s views on the substance of the dispute.

• Try to reach agreement on the nomination of the presiding arbitrator – you will by definition get an acceptable candidate!

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Thank you.

David L. KreiderInternational Arbitrator

Email: arbitrator@davidkreider.com

Chartered Arbitrator. Licensed attorney-at-law in New York, California, New Jersey,Florida, the District of Columbia, England and Wales, and Hong Kong.

David L. Kreider, International Arbitrator