Alternative Dispute Resolution Methods
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Questions and Answers

Which institution is primarily associated with resolving disputes related to international business transactions?

  • International Centre for Settlement of Investment Disputes (ICSID)
  • Stockholm Chamber of Commerce (SCC)
  • Permanent Court of Arbitration (PCA)
  • International Chamber of Commerce (ICC) (correct)

Which set of rules does ad hoc arbitration commonly employ?

  • London Court of International Arbitration Rules
  • International Chamber of Commerce Rules
  • UNCITRAL Rules (correct)
  • Madrid Arbitration Rules

What does the term 'expropriation' generally refer to in investment law?

  • A legal process to secure investments made by foreigners
  • A negotiation mechanism for trade disputes
  • A method for protecting against foreign competition
  • The transfer of property ownership by a state (correct)

Which of the following institutions does NOT primarily deal with investment disputes?

<p>World Bank (B)</p> Signup and view all the answers

What obligation does a host state have under the principle of 'full protection and security'?

<p>To prevent harm to investments by state organs (D)</p> Signup and view all the answers

What is the primary purpose of Bilateral Investment Treaties (BITs)?

<p>To define terms for private investment between states (B)</p> Signup and view all the answers

What does the principle of 'Most-Favoured-Nation (MFN) Treatment' ensure?

<p>Equal trade concessions across all trade partners (B)</p> Signup and view all the answers

What does 'Pacta Sunt Servanda' imply in international agreements?

<p>Agreements must be kept and upheld (B)</p> Signup and view all the answers

What is the maximum amount in dispute for expedited proceedings according to LCIA after January 1, 2021?

<p>US $3,000,000 (D)</p> Signup and view all the answers

Which of the following is NOT a requirement in the request for arbitration at the LCIA?

<p>Evidence and documentation supporting the claim (A)</p> Signup and view all the answers

When can the court make costs decisions during arbitration proceedings?

<p>At any time during the proceedings (C)</p> Signup and view all the answers

What is the default number of arbitrators appointed by LCIA if parties have not agreed otherwise?

<p>Sole arbitrator (C)</p> Signup and view all the answers

How long does a respondent have to provide a response to a request for arbitration in the Corte de Arbitraje de Madrid?

<p>15 days (B)</p> Signup and view all the answers

What condition must be satisfied for a third party to join a request in the pending proceeding?

<p>No-conflict control by the court (B)</p> Signup and view all the answers

What must be included in the statement of defense according to LCIA proceedings?

<p>A counterclaim (C)</p> Signup and view all the answers

What is the term for the fees and expenses of arbitrators as regulated in LCIA procedures?

<p>Arbitrator fees (C)</p> Signup and view all the answers

Interim measures may be ordered for which of the following reasons?

<p>To provide security for disputed amounts (A)</p> Signup and view all the answers

What does the LCIA registrar manage during arbitration?

<p>Administrative and judicial work (D)</p> Signup and view all the answers

What is considered a basis for revoking an arbitrator's appointment according to LCIA guidelines?

<p>Doubts about impartiality or independence (A)</p> Signup and view all the answers

What communication method is used for written communications in LCIA proceedings?

<p>Email or electronic means (B)</p> Signup and view all the answers

What is a key feature of the UNCITRAL Expedited Arbitration Rules introduced in 2021?

<p>The possibility of hearings being skipped if documentary evidence is sufficient. (D)</p> Signup and view all the answers

Which document is essential to initiate arbitration in the ICC?

<p>A request for arbitration submitted to the Secretariat. (B)</p> Signup and view all the answers

Under which circumstance can an ICC tribunal reject evidence?

<p>If the tribunal deems it unnecessary. (D)</p> Signup and view all the answers

What type of arbitration clause is considered pathological?

<p>A clause that lacks essential elements. (D)</p> Signup and view all the answers

What is a fundamental aspect of the UNCITRAL Rules on Transparency for Investor-State Arbitration?

<p>Public disclosure of essential non-confidential documents. (A)</p> Signup and view all the answers

Which of the following is NOT a type of evidence recognized in arbitration?

<p>Speculative evidence. (C)</p> Signup and view all the answers

What is the default number of arbitrators if parties do not agree otherwise in ICC arbitration?

<p>Three arbitrators. (D)</p> Signup and view all the answers

What governs the appointment of arbitrators under the UNCITRAL rules?

<p>Agreement among the parties or consultation with the appointing authority. (D)</p> Signup and view all the answers

Which of the following accurately represents the role of experts in arbitration?

<p>Experts are required to remain impartial and can assist with technical matters. (C)</p> Signup and view all the answers

Which scenario allows for the reopening of hearings before an arbitration award is finalized?

<p>It is necessary due to new evidence emerging. (D)</p> Signup and view all the answers

What does the principle of immediacy refer to in arbitration?

<p>The tribunal should see evidence directly related to the case. (B)</p> Signup and view all the answers

What is the purpose of an interim measure in arbitration?

<p>To provide immediate relief before the final award. (B)</p> Signup and view all the answers

What must a request for arbitration include in ICC procedures?

<p>Contact details and the parties involved along with dispute descriptions. (C)</p> Signup and view all the answers

What is one of the primary functions of the ICC International Court of Arbitration?

<p>To provide administrative support and assign arbitral tribunals. (C)</p> Signup and view all the answers

Flashcards

Fair and Equitable Treatment (FET)

A standard in most BITs that protects against arbitrary or discriminatory actions by the host state, ensuring fair and just treatment for investors.

Full Protection and Security

An obligation for the host state to protect investments from harm caused by state organs or private parties, ensuring physical, commercial, and legal security.

Expropriation

The act of a host state taking over private property for public use, requiring non-discrimination, public interest justification, due process, and adequate compensation.

Nationalisation

A specific form of expropriation where the state takes control of an entire industry or sector, requiring compensation.

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Most-Favoured-Nation (MFN) Treatment

A non-discriminatory policy requiring equal trade concessions to all partners, ensuring fair competition between nations.

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Pacta Sunt Servanda

A core principle of international law that emphasizes the binding nature of agreements, requiring parties to fulfill their commitments.

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ICSID Convention

A multilateral treaty backed by the World Bank, providing a forum to settle disputes between investors and states, promoting international investment.

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Bilateral Investment Treaties (BITs)

Agreements between two countries defining terms for private investment, guaranteeing safety and rights for foreign investors.

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Arbitration Fee

An initial payment made by the claimant to cover arbitration costs, typically a provisional payment.

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Costs Decisions

The court's decisions regarding costs are made at any stage during the arbitration proceedings.

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Final Costs

The final decision on costs is determined and finalized in the arbitration award.

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Expediated Proceedings

A type of arbitration designed for faster resolution, applicable when the dispute amount doesn't exceed a specific threshold.

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Request for Arbitration

A formal request initiating the arbitration process, submitted to the Registrar of the arbitration institution.

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Response to Request

The response to a request for arbitration, submitted by the respondent within a specific timeframe.

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Registrar

An individual or body responsible for managing the administrative and judicial aspects of an arbitration case.

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Written Communications

Communications between parties in arbitration are typically conducted electronically, using a designated electronic filing system.

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Designation of Arbitral Tribunal

The process of selecting arbitrators to oversee the arbitration process, with consideration given to the parties' agreement.

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Challenging an Arbitrator

The LCIA Court can revoke an arbitrator's appointment for various reasons, including impartiality concerns or if the arbitrator becomes unable to act.

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Seat of Arbitration

The location where the arbitration proceedings are held, typically London by default if not agreed upon by the parties. The law of the seat generally applies.

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Language of Arbitration

The language used for communication and documents in the arbitration, determined by agreement between the parties.

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Proceedings: Written Phase

The initial phase of the arbitration process involving the exchange of written statements of case and defense between the parties.

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Proceedings: Hearings

A crucial part of the arbitration process where hearings are held, involving oral questioning of witnesses and presentations of evidence.

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Interim and Conservatory Measures

Temporary measures taken by the court to protect the interests of the parties during the arbitration, such as securing disputed funds or preserving evidence.

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Legal capacity

Refers to the legal ability of a party to enter into an agreement, which is crucial for a valid arbitration agreement.

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Arbitration agreement

A written agreement indicating that any disputes arising from a specific contract or legal instrument will be settled through arbitration.

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Pathological clause

A clause in an arbitration agreement that is flawed due to ambiguity, poor drafting, or other deficiencies.

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Curable pathological clause

A pathological clause that can be fixed by clarifying or correcting its deficiencies.

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Incurable pathological clause

A pathological clause that cannot be repaired due to fundamental defects and renders the entire arbitration agreement invalid.

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Direct evidence

The evidence directly related to a claim, such as witness testimony.

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Circumstantial evidence

Evidence derived indirectly from deductions or inferences, like drawing conclusions from circumstantial clues.

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Full proof

Evidence that is sufficient to eliminate reasonable doubt regarding a claim or fact.

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Documentary proof

Written documents containing information relevant to the case, including public, private, or electronic records.

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Witness cross-examination

Oral statements made under oath by witnesses, who are obligated to tell the truth.

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Expert reports

Written reports by experts in specific fields who provide technical or specialized knowledge to the arbitral tribunal.

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Principle of immediacy

The principle that requires an arbitrator to directly observe or investigate relevant aspects of a case, such as physically visiting a location.

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UNCITRAL Arbitration Rules

A set of internationally-recognized arbitration rules developed by the United Nations Commission on International Trade Law.

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UNCITRAL Rules on Transparency for Treaty-Based Investor-State Arbitration

The UNCITRAL Rules aimed at increasing transparency in investor-state disputes by requiring public disclosure of key documents and hearings.

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UNCITRAL Expediated Arbitration Rules

A set of expedited arbitration rules designed to streamline proceedings for quicker resolutions.

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Study Notes

ADR (Alternative Dispute Resolution)

  • ADR is an alternative to traditional litigation, reducing costs and time.
  • Based on effectiveness, legal certainty, and proportionality.
  • Voluntary participation from parties.

ADR Methods

  • Hererocomposition: A third party makes a binding decision.
  • Arbitration: A neutral arbitrator makes a binding decision. It is private and confidential. Parties choose the arbitrator & rules.
  • Autocomposition: Parties reach a solution on their own. A third party can assist, but their decision isn't binding.
  • Negotiation: Parties discuss to reach an agreement.
  • Mediation: A neutral party facilitates the discussion.
  • Conciliation: A neutral party guides the discussion and suggests solutions.

Dispute Components in Negotiation

  • Problem: The core issue.
  • Positions: The initial demands.
  • Interests: The underlying needs behind positions.
  • Possible agreement: Identifying shared interests and risks to find a solution.
  • General elements in negotiation:
  • Motivation and needs of parties
  • Legitimacy of the process
  • Conflict management (communication)
  • Alternatives (BATNA)
  • Commitments from both sides

BATNA (Best Alternative To a Negotiated Agreement)

  • Best alternative if negotiations fail.
  • Provides leverage and sets a reservation point, minimum acceptable outcome.
  • ZOPA (Zone of Possible Agreement): The range where both parties' acceptable outcomes overlap.

Negotiation Types

  • Distributive: Competitive, win-lose.
  • Integrative: Collaborative, win-win.

Negotiation Steps (Harvard Law School)

  • Clarify needs and positions
  • Assess BATNA and reservation points
  • Focus on details to avoid misunderstandings

Traits of a Good Negotiator

  • Charisma, patience, honesty, good listening, persuasive, assertive, and problem-solving skills.

Common Negotiation Mistakes

  • Poor planning, accepting bad deals, competing over collaborating, and unethical behavior.

Conciliation vs Mediation

  • Conciliator: plays an active role, suggesting solutions.
  • Mediator: guides the discussion; parties reach solutions independently.

Conciliation Regulation

  • Spanish Act (15/2015), Articles 139-148. (Specific details not required)
  • Court procedure: Request filed at courthouse. Handled by a district judge or court secretary.

Mediation Process

  • Request for initiation: Both parties agree to mediate.
  • Briefings: Exchange of information.
  • Sessions: Proceedings of the mediation.
  • Conclusion: Agreement reached and enforced.

Mediation Agreement (Enforceability)

  • Can cover all or part of the issue.
  • Signed by all parties and mediator.
  • Copies are kept by each party and mediator.
  • To be enforceable, parties can legalise the agreement with a Notary Public.

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ADR Notes Midterm PDF

Description

This quiz explores the various methods of Alternative Dispute Resolution (ADR), including negotiation, mediation, arbitration, and more. Discover how these methods provide effective solutions while reducing the costs and time associated with traditional litigation. Test your understanding of key concepts and definitions in ADR.

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