위키배움터 kowikiversity https://ko.wikiversity.org/wiki/%EC%9C%84%ED%82%A4%EB%B0%B0%EC%9B%80%ED%84%B0:%EB%8C%80%EB%AC%B8 MediaWiki 1.47.0-wmf.15 first-letter 미디어 특수 토론 사용자 사용자토론 위키배움터 위키배움터토론 파일 파일토론 미디어위키 미디어위키토론 틀 틀토론 도움말 도움말토론 분류 분류토론 포털 포털토론 TimedText TimedText talk 모듈 모듈토론 행사 행사토론 102 71 36415 34814 2026-08-12T22:40:30Z Bykim2012 1312 36415 wikitext text/x-wiki {{상태상자|진행시작|대학 강의|법학}} * [[/법학 기초]] * [[/헌법]] * [[/민법]] * [[/형법]] * [[/지식재산권법]] * [[/미국변호사시험]] * [[/국제중재]] [[분류:법학]] jgzn5gp759xn6q219tghjrnj8rsaxe0 102 5240 36414 2026-08-12T22:39:49Z Bykim2012 1312 새 문서: == 생명, 신체에 대한 범죄 (5가지)== * 살인죄 * 상해죄/폭행죄 * 과실치사죄/과실치상죄 * 유기죄 == 자유에 대한 범죄(4가지)== * 협박죄 * 강요죄 * 약취유인죄 * 체포감금죄 (장소이전의자유침해) == 명예에 대한 범죄 (3가지)== * 명예훼손죄 (공연히 사실적시 혹은 허위, cf. 모욕죄) * 신용훼손죄 * 강간강제추행죄 == 평온에 대한 범죄 (2가지)== * 주거침입죄 * 비밀침해죄 36414 wikitext text/x-wiki == 생명, 신체에 대한 범죄 (5가지)== * 살인죄 * 상해죄/폭행죄 * 과실치사죄/과실치상죄 * 유기죄 == 자유에 대한 범죄(4가지)== * 협박죄 * 강요죄 * 약취유인죄 * 체포감금죄 (장소이전의자유침해) == 명예에 대한 범죄 (3가지)== * 명예훼손죄 (공연히 사실적시 혹은 허위, cf. 모욕죄) * 신용훼손죄 * 강간강제추행죄 == 평온에 대한 범죄 (2가지)== * 주거침입죄 * 비밀침해죄 bcxycrhwhati5bm65qy1210o0e4he7d 102 5241 36416 2026-08-12T22:41:27Z Bykim2012 1312 새 문서: =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분... 36416 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) mcxho1lk3ay018nzlrpxs4ib74b9qtr 36417 36416 2026-08-12T22:42:19Z Bykim2012 1312 /* 소개 */ 36417 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS t1onx6oelykkyzxtlvn1r45ecz1yr3m 36418 36417 2026-08-12T22:43:00Z Bykim2012 1312 36418 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion t82hi2cp6nnint30i2w6vd246kavpwm 36419 36418 2026-08-12T22:49:01Z Bykim2012 1312 36419 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= =Proof and Procedure in Common Law= =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= =Arbitration Under Investment Treaties= =Interactive Session= lopw5rv7ezcxz1s9hees4hpbwtx5nwo 36420 36419 2026-08-12T22:49:19Z Bykim2012 1312 /* Interactive Session */ 36420 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= =Proof and Procedure in Common Law= =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= =Arbitration Under Investment Treaties= =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. oglaln4t2u6dxresmbtdubhei9aaki0 36421 36420 2026-08-12T22:50:06Z Bykim2012 1312 /* Arbitration Under Investment Treaties */ 36421 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= =Proof and Procedure in Common Law= =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= =Arbitration Under Investment Treaties= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. htoax5l5w1xdbiprdnmx4cqylbobmu1 36422 36421 2026-08-12T22:50:42Z Bykim2012 1312 /* KCAB 국제중재 판정사례 */ 36422 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= =Proof and Procedure in Common Law= =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= The Arbitration Agreement Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration under KCAB Rules/International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. Conducted in Claimant's Country: "All disputes in relation to this contract shall be finally settled by arbitration in this country of the claimant. In case the claimant is (a Korean Company), the arbitration shall be held at the KCAB. In case the claimant is (a Chinese Company), the arbitration shall be held at the CIETAC" Request for Arbitration The request shall contain the following information Name in full, description and addresses of each of the parties A description of the nature and circumstances of the dispute giving rise to the claims The relief sought of any amounts claimed Composition of Arbitral Tribunal Parties may, by their agreement, appoint arbitrator(s) or the method of appointment. The number of arbitrators, a Sole Arbitrator or three Arbitrators Appointment by Secretariat Three Arbitrators shall be appointed taking into consideration the size, complexity or the factors of the dispute General Provisions Arbitrators acting under the Rules shall be and remain at all times, impartial and independent. Prior to accepting appointment: a prospective arbitrator shall disclose in writing to the Secretariat, any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Arbitral Awards The arbitral award shall have the same effect on the parties as the final and conclusive judgment of the Court. The enforcement of an foreign arbitral award shall be granted by the judgment of a Court (Provisions on the New York Convention, 1958) Case Study Main Issues: Breach of Contract Claimant is alleging that Respondent has a responsibility for the damages. • Claimant: There were product defects or quality claims such as inferior parts and excessive noise etc. Claim on loss caused by slow sales of 950 sets in quality problem among totally supplied 2,000 sets. The Claimant also alleges that the Respondent should compensate for all damages incurred by them. Respondent: Not by quality problem, but by the Claimant incapability for distribution and unfavorable external factors such as brand in the market. There was an agreement that in case of 5% or more of defects among the goods supplied by the Respondent. As to the Respondent's assertion that sales contract terms, must be construed as consistent with course of performance and dealing. Considering the circumstances: The main commercial risks in international trade relate to; Goods not matching the requirements of the order, goods which are unsatisfactory because they are of poor quality, poor value. The testing results of the defects in the chip processor and the conclusion are different. The evaluative defect is not clear about the object of comparison that is objective in standard and the measuring method is different from a common one. Any claims by Buyer of whatever nature arising under this contract shall be made by e-mail within three months after arrival of the goods at the destination specified in the Bills of Lading. Full particulars of such claim shall be made in writing, and forwarded by registered mail to Seller within 30 days after claim notice. Buyer must submit with particulars authorized Surveyor's Reports when the quality or quantity of the goods delivered is in dispute. CISG should be applicable The applicable laws to find the facts of this case and to provide legal interpretation and construction, including the burden of proof, good faith principle and consideration of equity, shall be the body of CISG. CISG 38(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances CISG 39(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. CASE: Performance of the Sales Contract Summary of Relief Sought 1. The Respondent shall pay to the Claimant the sum ofUS$425,730 with interest thereon from March 9, 2010 . 2. The Respondent shall compensate the Claimant for lost profits arising from the need to re-allocate Claimant's purchase of the subject goods. Reasons for Award 1. Basic Facts relating to the Disputes According to Claimant's Exhibits A and B and Respondent's Exhibit 4, the Claimant and the Respondent have agreed that all disputes in connection with the subject sales contracts shall be finally settled by arbitration before the KCAB in accordance with the Arbitration Rules. The principal issues of this case whether the Sales Contract has indeed been established and if so, who shall be liable for the consequences in the event of failure to perform the Sales Contract. The scope of such liability and quantum of damages . The Respondent's act to have returned the Sales Contract via facsimile stating thereon "Not Confirm", an ambiguous expression, as a firm expression to reject the modified offer by the Claimant in the international transaction. The Respondent may not avoid the responsibility arising out of its non-performance of the Sales Contract. The compensation of actual damages, it is not necessarily true that there shall be no causal link between any damages incurred by the Claimant. The Tribunal determines that the Sales Contract has indeed been established. Both parties were duly obliged to faithfully perform their respective contractual obligations. The Respondent, having been alerted to the seriousness of its liability which may be triggered due to its non-performance of the Sales Contract, attempted to find a way out for indulgence. This award is prepared by the Tribunal in both the Korean and English language so that both versions may have force as the duly authenticated award. There should be any discrepancy of this award, the Korean version shall prevail as a matter of the laws of Korea. The judgment upon this award may be entered in any court having proper jurisdiction. =Arbitration Under Investment Treaties= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. a5n93s15hs902i9naoahcpcop7wlb1s 36423 36422 2026-08-12T22:51:29Z Bykim2012 1312 /* Proof and Procedure in Common Law */ 36423 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= =Proof and Procedure in Common Law= This presentation will cover a broad range of basic rules of procedure and evidence in common law jurisdictions. Emphasis will be placed on the how these rules apply to international disputes. Civil Trials in Common Law Jurisdictions A. Overview of Trials in Common Law Jurisdictions.. (커먼로 관할에서의 소송절차 개관) 1. The Actors (소송의 주체) a. Plaintiff. (원고) b. Defendant. (피고) c. Judge. (판사) d. Fact Finder. (사실관계 판단자) The jury; if no jury, then the judge 2. The Trial. (재판 심리) The parties submit evidence in support of their claims or defenses. After a party submits evidence, the other party has an opportunity to challenge the veracity or authenticity of the evidence. In common law jurisdictions, only the plaintiff and defendant are active in submitting and challenging the a、ridence; the judge and fact finder are mostly passive observers during the trial. 3. The Ruling. (판결, 결정) After all evidence is submitted at trial, the fact finder makes findings of fact based on the evidence. The fact finder rules that one party’s rendition of the facts is more credible than the other party’s rendition. Then that factual finding is applied to the law. B. Commencing a Civil Lawsuit. (민사소송의 개시 ) 1. Filing a Complaint. (소장 접수) A civil action starts when the plaintiff files a complaint with the court. The complaint is a statement of facts stating the plaintiff’s legal c1aim. 2. Serving Notice. (소장 및 소송고지서의 송달) After receiving the complaint, the court will issue a summons. this is an order for the defendant to answer the complaint. The plaintiff (not the court) has the duty to serve a copy of the complaint and summons on the defendant. The summons and complaint serve as notice of the lawsuit and must be properly served on the defendant before the civil action can proceed. C. The Pleadings. (소장 및 답변서 진 차) Pleadings are the parties’ initial statements of their case to the court and to each other. 1. Complaint. (소장) The complaint is the initial pleading and is filed by the plaintiff. 2. Answer. ( 답변서) The defendant’s pleading is the answer. In the answer, the defendant must admit or deny any factual allegations in the complaint. The defendant may also raise affirmative defenses or grounds for dismissal. 3. Counter-Claims. (반소장) The defendant may a1so state claims against the plaintiff. These claims are called counterclaims and 、‘ìill be tried in the same proceeding‘ The plaintiff must thereafter file an answer in response to the defendant’s counter claims. 4. Cross-Claims. (피고상호 청구) If there are multiple defendants, a defendant with a claim against another defendant may file those claims with the court. One defendant’s allegations against another defendant are called cross claims. 5. Impleader. 제3자 소송참가) If the defendant alleges that another partY IS wholly or partially liable for the plaintiff’s claim, he may request to have that third party joined in the law suit. This procedure is called ímpleader. 6. Strategy and Pleadings. The scope of the plaintiff’s case and the defendant's defenses are determined by the content of the pleadings. Neither plaintiff nor defendant can present a claim or affirmative defense at trial that is not contained in the pleadings. 7. Amending the Pleadings. (주장, 항변의 변경) The parties can amend the pleadings to add allegations or defenses at the early stages of the proceedings. The court has discretion to allow amendments and may not accept amendments once the trial has commenced. D. Early Defenses. (조기 제출 항변 사유) The defendant may raise any of the following defenses in the answer or by a special procedure called a motion. 1. Improper Service of Process. (부적법 송달) An action will be dismissed if the plaintiff improperly served the complaint on the defendant. The plaintiff may be able to serve process again if the timeline for service of process has not yet expired or the court grants a time extension for service. 2. Failure to State a Cause of Action. (법적 정 인 부존재) An action will be dismissed if the plaintiff’s allegations, even if true, do not state a cause of action which the law recognized or provides a remedy. 3. Lack of Personal Jurisdiction. (인적 관할 부존재) An action must be dismissed if the court does not have personal jurisdiction over the defendant. Personal jurisdiction is proper under the following circumstances: (적 법한 인적사유들) a. Personal Service of Process in State. (법원 지역에 있는 피고에 [H 한 직 접 교부) If the plaintiff personally serves the summons and complaint on the defendant in the state where the court is located, personal jurisdiction is satisfied. b. Defendant is a State Domiciliary. (피고가 법원 관할 지역내 거주자) A court’s Personal jurisdiction is always satisfied as to domicìlìary (citizen) of the state where is court is located. c. Defendant is a Corporation Doing Business in State. (회사의 해당 주에서 설립허가받거나 주된 영업을 하고 있음) A corporation that is licensed in a state or that does substantial business in a state can be sued on any claim in that state. d. Defendant Consents to Personal Jurisdiction. (피고가 관할메 동의) Personal jurisdiction is proper if the defendant voluntarily appears or contractually agrees to appear for trial in the state. e. Defendant has Sufficient Minimum Contacts. (피고가 해 당 주에 죄소연 점 있을 것) If a defendant is not located in the state where she has been sued, the U.S. Supreme Court has developed a “ Minimum Contacts" test to determine if personal jurisdiction would still be proper. (Complicated Legal Analysis) f. In Rem Jurisdiction. (물적 판할 소재지) If the lawsuit relates only to possession or ownership of property, then jurisdiction is proper in the state where the property is located even if personal jurisdiction over the defendant is not otherwise satisfied. 4. Lack of Subject Matter Jurisdiction. (사물관할 부존재) A lawsuit must be dismissed if the court does not have the authority to hear the type of dispute the plaintiff has Initiated. 5. Affirmative Defenses. (각하항번사유) The defendant may also motion to dismiss a case based on any of the following defenses: a. State of Limitations. (소멸시효 완성) The time limit for filing the plaintiff’s action had passed at the time the plaintiff filed. b. Payment of Debt. (변제) The plaintiff’s complaint alleges that the defendant owes adebt， but the defendant has proof that she already paid the debt. c. Arbitration Resolved. (중재 성립) The defendant can prove that the issue has already been resolved in arbitration. d. Release by Plaintiff. (면제) The defendant can prove that the plaintiff has already contractually released the defendant (SETTLEMENT) e. Res Judicata. (기판력) The case or issue has already been resolved at trial. f. Infancy of Defendant. (피고의 미성년, 의사무능력) The defendant is an infant and incompetent to stand trial. g. Bankruptcy Discharge. (파산) The claim is for payment of a debt, and the debt has already been discharged in bankruptcy. h. Statute of Frauds. (특정 계약에서 서면부존재) The claim is based on a contract that must be in writing to be enforceable, and there is no such written document E. Preparing for Trial. (제판준비잘차) Once all of the pleadings are submitted, the court will set a trial date and outline a schedule for discovery. 1. Discovery. (증거개시 제도) Discovery is the process whereby the parties collect evidence from each other and determine the strength of the other's party’s case. Civil Procedure law allows each party to request information from the other party that relates to the case. The scope of discovery is very broad, and each party is generally obligated to give the other party any evidence requested. The court has GREAT discretion is ordering a party to comply with discovery requests. In extreme cases, the court may penalize a non-cooperative party with a monetary fine, brief detention， or even declare the other party the victor of the case! a. Disclosure Devices. (개시 수단, 방법) i. Initial Disclosures. (개시 시작) Before formal discovery begins, the parties are required to disclose the location of documents that are relevant to the case. The parties are also required to describe any documents or other evidence that is likely to be used by EITHER PARTY at trial-e.g.， contracts, tìt1e documents, insurance contracts, etc. ii. Depositions. (진술 녹취) These are formal, recorded intervieWS of the other party or witnesses. The purpose Ís to 1earn more about the case or the existence of evidence. A deposed witness MUST tell the truth or she can be punished criminally. iii. Interrogatories. (서면 질의) These are written questions submitted to the other party or a witness. The recipient must answer the written questions m wntmg. iv. Documents Requests. (서면 요구) A document request COMPELS the recipient to submit copies of all documents that match the r，equesting party's request‘ v. Medical Exams. (으| 학적 검사) A party can request other person to be examined. vi. Requests for Admission. (사실인정 요구) A party can ask the other party to admit to certain facts. b. Objections to Disclosure. (증거개시에 대한 이의) The parties generally try to work it out on their own. lf they cannot, one of them will motion the court. The requesting party wiU file a motion to compel and the objecting party will seek a protective order. C. Remedies for Failure to Disclose. (종거개시 거부에 대한 구제) Civil or criminal contempt of court; in some extreme circumstances, the court may terminate the case by ruling in favor of the non-offending party. 2. Settlement Negotiations. (화해어l 의한 분쟁 종결) Parties are encouraged to negotiate a settlement of their dispute outside of court. Once the parties have agreed to a settlement， they typically sign accord or settlement agr야ment. The agreement is pay some money or take some action in exchange for the other party promising to drop the case and not sue again (accord). F. Judgments before Trial. (심 리전 재판) 1. Summary Judgment. (심 리전 판결) Either party may, before the presentation of evidence commenιes at trial, motion the court for summary judgment. The court w피then review the documents， affidavits, and other evidence to determine whether there is any issue of fact requiring a trial. If the e、ridence so strongly favors one party that reasonable jurors could not differ in opinion, then the court will enter summary judgment on the case. 2. Default. (으|제자백 또는 각하결정) If the defendant fails to answer the summons and complaint or if either party fails to aetively participate in the trial, the court will make an order of default. Afterwards, the non-defaulting party may request the court to enter judgment by default in her favor. G. The Trial. (재판 심리) Once the parties have finished collecting their evidence, they go trial. At trial, the parties use evidence to convince the jury that their assertions are true and that their opponent’s assertions lack merit. 1. Role of Judge. (판사 역할) The judge determines all motions, administers the proceedings according to the rules of procedure, ensures the parties present evidence according to the rules of evidence, and instructs the jury on the relevant law. 2. Role of the Lawyers. (변호사 댁 The lawyers try to convince the jury (or fact finder) that their client should win the case. Lawyers do this by presenting evidence, questioning witnesses, and attacking the credibility of the other party’s evidence or witnesses (impeachment). 3. Role of Jury. (배심원 역할) In most cases, the fact finder is the jury, a group of‘ unbiased citizens. The parties may agree to try the case without a jury. If so, the judge is the fact finder. In either case, the fact finder must decide every element or issue of the plaintiff’s claims and the defendant’s defenses. Factual findings must be based only on ADMISSIBLE evidence presented at trial. H. Evidence (증거). 1. Purpose of Evidence. (증거제줄 목적) The parties present evidence in order to convince the fact finder that their factual allegations or defenses are credible/true. The fact finder can base its findings only on the evidence properly admitted at trial. 2. Relevance. (관련성) The most important rule of evidence is this: only relevant evidence is admissible‘ Evidence is relevant if it had tendency to make a t would be without the evidence. 3. Judge Discretion. (판사 재량) The judge is the referee in the jury trial. As such, the judge must make sure that the parties observe the rules of evidence. The judge can exclude evidence if the rules of evidence require it. Also, the judge may exclude some admissible evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion or undue delay of the trial. 4. Methods of Presenting Evidence. (증거 종류) There are a number of ways to present evidence at trial: a. Witness Testimony. (일반 종류) Non-expert witnesses are allowed to testify regarding facts they witnessed first hand. They may also testify regarding their opinion of a party or the reputation of a party. b. Expert Witness Testimony. (전문가 증언) Parties often present the testimony of an expert witness. The court must first ensure that the witness is qualified as an expert before he or she is allowed to testify at trial. c. Hearsay. (전문증거 배제) There are very strict limits on how statements or documents made outside of court can be presented in court. These rules are complicated, but the goal is to keep unreliable evidence out of trial. d. Impeachment. (탄핵증거) Either party may attack the credibility of a witness. This is usual1y done by showing that the witness’s testimony is unreliable or false. e. Documentary Evidence Rules. (증거능력) Before entering documents, pictures, or other re:cording into evidence, the party must first establish that the document or recording is in fact what she purports it to be 5. Excluding Inadmissible Evidence. (증거배제방법) a. An Objection. (증거이의) If a party believes that evidence presented by the other party is improper, he must immediately state his objection to the court. The judge wiU then rule whether to allow the evidence or exclude it. b. A Motion to Dismiss. (사전증거이으1) Often a party will know in advance that the other partY wishes to present disputed evidenceIn this case, the party can motion the court to exclude the evidence before trial. The judge must exclude the evidence if it is improper under the rules of evidence. c. A Limiting Instruction. (증거배제 지시) If a party does present improper evidence, the judge must order the evidence improper and instruct the jury to 19 nor응 the evidence. If there is no jury, the judge MUST NOT consider that evidence when making the final decision in the case. I. Judgments (판결) 1. Judge Instructs the Jury on the Law and Instructs them to Reach a Finding on Each Element of the Cause of Action. After the presentation of evidence, the judge will instruct the jury on the law. Usually, this means that the judge will explain every legal element of the plaintiff’s claim, and then tells the jury to weigh the evidence as to every element. Also, the judge will instruct the jury to ignore any evidence that was improperly mentioned or introduced. 2. Judge is Bound by Jury Determinations. The judge is bound by the jury determinations UNLESS one of the parties moves for Judgment Notwithstanding the Verdict (JNOV). By using this motion, a party argues that the jury’s determination is against the clear weight of the evidence. If the court grants the motion, it essentially reverses the jury’s determination on the contested is없le(s) of fact. J. Res Judicata. (기판력) Courts CANNOT and WILL NOT re-try issues of 훨학 that have already been determined at trial. 1. Claim Preclusion. (청구원인에 대한 기판력) Once a lawsuit has come to final judgment, the plaintiff‘ cannot sue the defendant on any claim arising from the same transaction or occurrence that gave rise to the lawsuit. 2. Issue Preclusion. (이슈에 대한 기판력) Once a fact finder has determined an issue of fact at trial, that fact will not be tried again if the issue is rele、'ant in a future lawsuit. K. Appeals. (항소절차) Once the trial has reached a final judgment, the unsuccessful party may appeal any decision or ruling of the trial court, but only if they objected to it at trial. 1. Timely Appeal. (항소제기 지 간) In most jurisdictions, an appeal must be filed within 30 days from the date of the judgment. 2. Role of Appeals Court. (항소심의 심 리 범위) Courts of appeals will fully review lower courts determinations of law (issues of law)‘ Appeals courts will only review a trial court’s finding of fact if it is clearly erroneous (clearly against the evidence). L. Enforcement. (앙제집행) Courts can only render judgments; they have no power to enforce their judgments. In most cases, the losing party wi1l voluntarily pay the judgment. If not, the victorious party must find a way to enforce the judgment. 1. Role of the Government. (경잘의 집행권한) Court judgments are enforced through an order of execution. Execution is issued by the court and delivered to executive branch officials (usually police), who order the losing party to pay the judgment. Otherwise, the police attach or seize property and hold a sale of the debtor피 property to satisfy the judgment amount. 2. Sufficient Assets? (집행 불능 경우 및 불능재산) If the judgment debtor has insufficient assets to pay the judgment, then the victorious party in court will go unpaid. In some states, some assets such as the family home, one car, pension benefits, etc. are exempt property and, thus, cannot be levied to satisfy a debt. =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= The Arbitration Agreement Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration under KCAB Rules/International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. Conducted in Claimant's Country: "All disputes in relation to this contract shall be finally settled by arbitration in this country of the claimant. In case the claimant is (a Korean Company), the arbitration shall be held at the KCAB. In case the claimant is (a Chinese Company), the arbitration shall be held at the CIETAC" Request for Arbitration The request shall contain the following information Name in full, description and addresses of each of the parties A description of the nature and circumstances of the dispute giving rise to the claims The relief sought of any amounts claimed Composition of Arbitral Tribunal Parties may, by their agreement, appoint arbitrator(s) or the method of appointment. The number of arbitrators, a Sole Arbitrator or three Arbitrators Appointment by Secretariat Three Arbitrators shall be appointed taking into consideration the size, complexity or the factors of the dispute General Provisions Arbitrators acting under the Rules shall be and remain at all times, impartial and independent. Prior to accepting appointment: a prospective arbitrator shall disclose in writing to the Secretariat, any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Arbitral Awards The arbitral award shall have the same effect on the parties as the final and conclusive judgment of the Court. The enforcement of an foreign arbitral award shall be granted by the judgment of a Court (Provisions on the New York Convention, 1958) Case Study Main Issues: Breach of Contract Claimant is alleging that Respondent has a responsibility for the damages. • Claimant: There were product defects or quality claims such as inferior parts and excessive noise etc. Claim on loss caused by slow sales of 950 sets in quality problem among totally supplied 2,000 sets. The Claimant also alleges that the Respondent should compensate for all damages incurred by them. Respondent: Not by quality problem, but by the Claimant incapability for distribution and unfavorable external factors such as brand in the market. There was an agreement that in case of 5% or more of defects among the goods supplied by the Respondent. As to the Respondent's assertion that sales contract terms, must be construed as consistent with course of performance and dealing. Considering the circumstances: The main commercial risks in international trade relate to; Goods not matching the requirements of the order, goods which are unsatisfactory because they are of poor quality, poor value. The testing results of the defects in the chip processor and the conclusion are different. The evaluative defect is not clear about the object of comparison that is objective in standard and the measuring method is different from a common one. Any claims by Buyer of whatever nature arising under this contract shall be made by e-mail within three months after arrival of the goods at the destination specified in the Bills of Lading. Full particulars of such claim shall be made in writing, and forwarded by registered mail to Seller within 30 days after claim notice. Buyer must submit with particulars authorized Surveyor's Reports when the quality or quantity of the goods delivered is in dispute. CISG should be applicable The applicable laws to find the facts of this case and to provide legal interpretation and construction, including the burden of proof, good faith principle and consideration of equity, shall be the body of CISG. CISG 38(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances CISG 39(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. CASE: Performance of the Sales Contract Summary of Relief Sought 1. The Respondent shall pay to the Claimant the sum ofUS$425,730 with interest thereon from March 9, 2010 . 2. The Respondent shall compensate the Claimant for lost profits arising from the need to re-allocate Claimant's purchase of the subject goods. Reasons for Award 1. Basic Facts relating to the Disputes According to Claimant's Exhibits A and B and Respondent's Exhibit 4, the Claimant and the Respondent have agreed that all disputes in connection with the subject sales contracts shall be finally settled by arbitration before the KCAB in accordance with the Arbitration Rules. The principal issues of this case whether the Sales Contract has indeed been established and if so, who shall be liable for the consequences in the event of failure to perform the Sales Contract. The scope of such liability and quantum of damages . The Respondent's act to have returned the Sales Contract via facsimile stating thereon "Not Confirm", an ambiguous expression, as a firm expression to reject the modified offer by the Claimant in the international transaction. The Respondent may not avoid the responsibility arising out of its non-performance of the Sales Contract. The compensation of actual damages, it is not necessarily true that there shall be no causal link between any damages incurred by the Claimant. The Tribunal determines that the Sales Contract has indeed been established. Both parties were duly obliged to faithfully perform their respective contractual obligations. The Respondent, having been alerted to the seriousness of its liability which may be triggered due to its non-performance of the Sales Contract, attempted to find a way out for indulgence. This award is prepared by the Tribunal in both the Korean and English language so that both versions may have force as the duly authenticated award. There should be any discrepancy of this award, the Korean version shall prevail as a matter of the laws of Korea. The judgment upon this award may be entered in any court having proper jurisdiction. =Arbitration Under Investment Treaties= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. qadppopq3evm9wif53u7e8pd9zt3xre 36424 36423 2026-08-12T22:52:00Z Bykim2012 1312 /* Recognition and Enforcement of Awards */ 36424 wikitext text/x-wiki =국제중재동향= 1. 대한상사중재원의 국제중재 현황 2. UNCITRAL 모델중재법 개정 부분 3. UNCITRAL 모델중재규칙 개정 부분 4. 남북상사중재 5. 투자중재 6. 경제자유구역 상사중재 및 지역중재센터 =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= This class is aiming at introducing students to the general role of the Korean Court in arbitration, and improving the students' understanding of the practical issues as to setting aside of arbitral awards(domestic awards) or refusing the enforcement of arbitral awards(mainly foreign awards) through reviewing the Korean Courts' decisions. =Proof and Procedure in Common Law= This presentation will cover a broad range of basic rules of procedure and evidence in common law jurisdictions. Emphasis will be placed on the how these rules apply to international disputes. Civil Trials in Common Law Jurisdictions A. Overview of Trials in Common Law Jurisdictions.. (커먼로 관할에서의 소송절차 개관) 1. The Actors (소송의 주체) a. Plaintiff. (원고) b. Defendant. (피고) c. Judge. (판사) d. Fact Finder. (사실관계 판단자) The jury; if no jury, then the judge 2. The Trial. (재판 심리) The parties submit evidence in support of their claims or defenses. After a party submits evidence, the other party has an opportunity to challenge the veracity or authenticity of the evidence. In common law jurisdictions, only the plaintiff and defendant are active in submitting and challenging the a、ridence; the judge and fact finder are mostly passive observers during the trial. 3. The Ruling. (판결, 결정) After all evidence is submitted at trial, the fact finder makes findings of fact based on the evidence. The fact finder rules that one party’s rendition of the facts is more credible than the other party’s rendition. Then that factual finding is applied to the law. B. Commencing a Civil Lawsuit. (민사소송의 개시 ) 1. Filing a Complaint. (소장 접수) A civil action starts when the plaintiff files a complaint with the court. The complaint is a statement of facts stating the plaintiff’s legal c1aim. 2. Serving Notice. (소장 및 소송고지서의 송달) After receiving the complaint, the court will issue a summons. this is an order for the defendant to answer the complaint. The plaintiff (not the court) has the duty to serve a copy of the complaint and summons on the defendant. The summons and complaint serve as notice of the lawsuit and must be properly served on the defendant before the civil action can proceed. C. The Pleadings. (소장 및 답변서 진 차) Pleadings are the parties’ initial statements of their case to the court and to each other. 1. Complaint. (소장) The complaint is the initial pleading and is filed by the plaintiff. 2. Answer. ( 답변서) The defendant’s pleading is the answer. In the answer, the defendant must admit or deny any factual allegations in the complaint. The defendant may also raise affirmative defenses or grounds for dismissal. 3. Counter-Claims. (반소장) The defendant may a1so state claims against the plaintiff. These claims are called counterclaims and 、‘ìill be tried in the same proceeding‘ The plaintiff must thereafter file an answer in response to the defendant’s counter claims. 4. Cross-Claims. (피고상호 청구) If there are multiple defendants, a defendant with a claim against another defendant may file those claims with the court. One defendant’s allegations against another defendant are called cross claims. 5. Impleader. 제3자 소송참가) If the defendant alleges that another partY IS wholly or partially liable for the plaintiff’s claim, he may request to have that third party joined in the law suit. This procedure is called ímpleader. 6. Strategy and Pleadings. The scope of the plaintiff’s case and the defendant's defenses are determined by the content of the pleadings. Neither plaintiff nor defendant can present a claim or affirmative defense at trial that is not contained in the pleadings. 7. Amending the Pleadings. (주장, 항변의 변경) The parties can amend the pleadings to add allegations or defenses at the early stages of the proceedings. The court has discretion to allow amendments and may not accept amendments once the trial has commenced. D. Early Defenses. (조기 제출 항변 사유) The defendant may raise any of the following defenses in the answer or by a special procedure called a motion. 1. Improper Service of Process. (부적법 송달) An action will be dismissed if the plaintiff improperly served the complaint on the defendant. The plaintiff may be able to serve process again if the timeline for service of process has not yet expired or the court grants a time extension for service. 2. Failure to State a Cause of Action. (법적 정 인 부존재) An action will be dismissed if the plaintiff’s allegations, even if true, do not state a cause of action which the law recognized or provides a remedy. 3. Lack of Personal Jurisdiction. (인적 관할 부존재) An action must be dismissed if the court does not have personal jurisdiction over the defendant. Personal jurisdiction is proper under the following circumstances: (적 법한 인적사유들) a. Personal Service of Process in State. (법원 지역에 있는 피고에 [H 한 직 접 교부) If the plaintiff personally serves the summons and complaint on the defendant in the state where the court is located, personal jurisdiction is satisfied. b. Defendant is a State Domiciliary. (피고가 법원 관할 지역내 거주자) A court’s Personal jurisdiction is always satisfied as to domicìlìary (citizen) of the state where is court is located. c. Defendant is a Corporation Doing Business in State. (회사의 해당 주에서 설립허가받거나 주된 영업을 하고 있음) A corporation that is licensed in a state or that does substantial business in a state can be sued on any claim in that state. d. Defendant Consents to Personal Jurisdiction. (피고가 관할메 동의) Personal jurisdiction is proper if the defendant voluntarily appears or contractually agrees to appear for trial in the state. e. Defendant has Sufficient Minimum Contacts. (피고가 해 당 주에 죄소연 점 있을 것) If a defendant is not located in the state where she has been sued, the U.S. Supreme Court has developed a “ Minimum Contacts" test to determine if personal jurisdiction would still be proper. (Complicated Legal Analysis) f. In Rem Jurisdiction. (물적 판할 소재지) If the lawsuit relates only to possession or ownership of property, then jurisdiction is proper in the state where the property is located even if personal jurisdiction over the defendant is not otherwise satisfied. 4. Lack of Subject Matter Jurisdiction. (사물관할 부존재) A lawsuit must be dismissed if the court does not have the authority to hear the type of dispute the plaintiff has Initiated. 5. Affirmative Defenses. (각하항번사유) The defendant may also motion to dismiss a case based on any of the following defenses: a. State of Limitations. (소멸시효 완성) The time limit for filing the plaintiff’s action had passed at the time the plaintiff filed. b. Payment of Debt. (변제) The plaintiff’s complaint alleges that the defendant owes adebt， but the defendant has proof that she already paid the debt. c. Arbitration Resolved. (중재 성립) The defendant can prove that the issue has already been resolved in arbitration. d. Release by Plaintiff. (면제) The defendant can prove that the plaintiff has already contractually released the defendant (SETTLEMENT) e. Res Judicata. (기판력) The case or issue has already been resolved at trial. f. Infancy of Defendant. (피고의 미성년, 의사무능력) The defendant is an infant and incompetent to stand trial. g. Bankruptcy Discharge. (파산) The claim is for payment of a debt, and the debt has already been discharged in bankruptcy. h. Statute of Frauds. (특정 계약에서 서면부존재) The claim is based on a contract that must be in writing to be enforceable, and there is no such written document E. Preparing for Trial. (제판준비잘차) Once all of the pleadings are submitted, the court will set a trial date and outline a schedule for discovery. 1. Discovery. (증거개시 제도) Discovery is the process whereby the parties collect evidence from each other and determine the strength of the other's party’s case. Civil Procedure law allows each party to request information from the other party that relates to the case. The scope of discovery is very broad, and each party is generally obligated to give the other party any evidence requested. The court has GREAT discretion is ordering a party to comply with discovery requests. In extreme cases, the court may penalize a non-cooperative party with a monetary fine, brief detention， or even declare the other party the victor of the case! a. Disclosure Devices. (개시 수단, 방법) i. Initial Disclosures. (개시 시작) Before formal discovery begins, the parties are required to disclose the location of documents that are relevant to the case. The parties are also required to describe any documents or other evidence that is likely to be used by EITHER PARTY at trial-e.g.， contracts, tìt1e documents, insurance contracts, etc. ii. Depositions. (진술 녹취) These are formal, recorded intervieWS of the other party or witnesses. The purpose Ís to 1earn more about the case or the existence of evidence. A deposed witness MUST tell the truth or she can be punished criminally. iii. Interrogatories. (서면 질의) These are written questions submitted to the other party or a witness. The recipient must answer the written questions m wntmg. iv. Documents Requests. (서면 요구) A document request COMPELS the recipient to submit copies of all documents that match the r，equesting party's request‘ v. Medical Exams. (으| 학적 검사) A party can request other person to be examined. vi. Requests for Admission. (사실인정 요구) A party can ask the other party to admit to certain facts. b. Objections to Disclosure. (증거개시에 대한 이의) The parties generally try to work it out on their own. lf they cannot, one of them will motion the court. The requesting party wiU file a motion to compel and the objecting party will seek a protective order. C. Remedies for Failure to Disclose. (종거개시 거부에 대한 구제) Civil or criminal contempt of court; in some extreme circumstances, the court may terminate the case by ruling in favor of the non-offending party. 2. Settlement Negotiations. (화해어l 의한 분쟁 종결) Parties are encouraged to negotiate a settlement of their dispute outside of court. Once the parties have agreed to a settlement， they typically sign accord or settlement agr야ment. The agreement is pay some money or take some action in exchange for the other party promising to drop the case and not sue again (accord). F. Judgments before Trial. (심 리전 재판) 1. Summary Judgment. (심 리전 판결) Either party may, before the presentation of evidence commenιes at trial, motion the court for summary judgment. The court w피then review the documents， affidavits, and other evidence to determine whether there is any issue of fact requiring a trial. If the e、ridence so strongly favors one party that reasonable jurors could not differ in opinion, then the court will enter summary judgment on the case. 2. Default. (으|제자백 또는 각하결정) If the defendant fails to answer the summons and complaint or if either party fails to aetively participate in the trial, the court will make an order of default. Afterwards, the non-defaulting party may request the court to enter judgment by default in her favor. G. The Trial. (재판 심리) Once the parties have finished collecting their evidence, they go trial. At trial, the parties use evidence to convince the jury that their assertions are true and that their opponent’s assertions lack merit. 1. Role of Judge. (판사 역할) The judge determines all motions, administers the proceedings according to the rules of procedure, ensures the parties present evidence according to the rules of evidence, and instructs the jury on the relevant law. 2. Role of the Lawyers. (변호사 댁 The lawyers try to convince the jury (or fact finder) that their client should win the case. Lawyers do this by presenting evidence, questioning witnesses, and attacking the credibility of the other party’s evidence or witnesses (impeachment). 3. Role of Jury. (배심원 역할) In most cases, the fact finder is the jury, a group of‘ unbiased citizens. The parties may agree to try the case without a jury. If so, the judge is the fact finder. In either case, the fact finder must decide every element or issue of the plaintiff’s claims and the defendant’s defenses. Factual findings must be based only on ADMISSIBLE evidence presented at trial. H. Evidence (증거). 1. Purpose of Evidence. (증거제줄 목적) The parties present evidence in order to convince the fact finder that their factual allegations or defenses are credible/true. The fact finder can base its findings only on the evidence properly admitted at trial. 2. Relevance. (관련성) The most important rule of evidence is this: only relevant evidence is admissible‘ Evidence is relevant if it had tendency to make a t would be without the evidence. 3. Judge Discretion. (판사 재량) The judge is the referee in the jury trial. As such, the judge must make sure that the parties observe the rules of evidence. The judge can exclude evidence if the rules of evidence require it. Also, the judge may exclude some admissible evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion or undue delay of the trial. 4. Methods of Presenting Evidence. (증거 종류) There are a number of ways to present evidence at trial: a. Witness Testimony. (일반 종류) Non-expert witnesses are allowed to testify regarding facts they witnessed first hand. They may also testify regarding their opinion of a party or the reputation of a party. b. Expert Witness Testimony. (전문가 증언) Parties often present the testimony of an expert witness. The court must first ensure that the witness is qualified as an expert before he or she is allowed to testify at trial. c. Hearsay. (전문증거 배제) There are very strict limits on how statements or documents made outside of court can be presented in court. These rules are complicated, but the goal is to keep unreliable evidence out of trial. d. Impeachment. (탄핵증거) Either party may attack the credibility of a witness. This is usual1y done by showing that the witness’s testimony is unreliable or false. e. Documentary Evidence Rules. (증거능력) Before entering documents, pictures, or other re:cording into evidence, the party must first establish that the document or recording is in fact what she purports it to be 5. Excluding Inadmissible Evidence. (증거배제방법) a. An Objection. (증거이의) If a party believes that evidence presented by the other party is improper, he must immediately state his objection to the court. The judge wiU then rule whether to allow the evidence or exclude it. b. A Motion to Dismiss. (사전증거이으1) Often a party will know in advance that the other partY wishes to present disputed evidenceIn this case, the party can motion the court to exclude the evidence before trial. The judge must exclude the evidence if it is improper under the rules of evidence. c. A Limiting Instruction. (증거배제 지시) If a party does present improper evidence, the judge must order the evidence improper and instruct the jury to 19 nor응 the evidence. If there is no jury, the judge MUST NOT consider that evidence when making the final decision in the case. I. Judgments (판결) 1. Judge Instructs the Jury on the Law and Instructs them to Reach a Finding on Each Element of the Cause of Action. After the presentation of evidence, the judge will instruct the jury on the law. Usually, this means that the judge will explain every legal element of the plaintiff’s claim, and then tells the jury to weigh the evidence as to every element. Also, the judge will instruct the jury to ignore any evidence that was improperly mentioned or introduced. 2. Judge is Bound by Jury Determinations. The judge is bound by the jury determinations UNLESS one of the parties moves for Judgment Notwithstanding the Verdict (JNOV). By using this motion, a party argues that the jury’s determination is against the clear weight of the evidence. If the court grants the motion, it essentially reverses the jury’s determination on the contested is없le(s) of fact. J. Res Judicata. (기판력) Courts CANNOT and WILL NOT re-try issues of 훨학 that have already been determined at trial. 1. Claim Preclusion. (청구원인에 대한 기판력) Once a lawsuit has come to final judgment, the plaintiff‘ cannot sue the defendant on any claim arising from the same transaction or occurrence that gave rise to the lawsuit. 2. Issue Preclusion. (이슈에 대한 기판력) Once a fact finder has determined an issue of fact at trial, that fact will not be tried again if the issue is rele、'ant in a future lawsuit. K. Appeals. (항소절차) Once the trial has reached a final judgment, the unsuccessful party may appeal any decision or ruling of the trial court, but only if they objected to it at trial. 1. Timely Appeal. (항소제기 지 간) In most jurisdictions, an appeal must be filed within 30 days from the date of the judgment. 2. Role of Appeals Court. (항소심의 심 리 범위) Courts of appeals will fully review lower courts determinations of law (issues of law)‘ Appeals courts will only review a trial court’s finding of fact if it is clearly erroneous (clearly against the evidence). L. Enforcement. (앙제집행) Courts can only render judgments; they have no power to enforce their judgments. In most cases, the losing party wi1l voluntarily pay the judgment. If not, the victorious party must find a way to enforce the judgment. 1. Role of the Government. (경잘의 집행권한) Court judgments are enforced through an order of execution. Execution is issued by the court and delivered to executive branch officials (usually police), who order the losing party to pay the judgment. Otherwise, the police attach or seize property and hold a sale of the debtor피 property to satisfy the judgment amount. 2. Sufficient Assets? (집행 불능 경우 및 불능재산) If the judgment debtor has insufficient assets to pay the judgment, then the victorious party in court will go unpaid. In some states, some assets such as the family home, one car, pension benefits, etc. are exempt property and, thus, cannot be levied to satisfy a debt. =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= The Arbitration Agreement Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration under KCAB Rules/International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. Conducted in Claimant's Country: "All disputes in relation to this contract shall be finally settled by arbitration in this country of the claimant. In case the claimant is (a Korean Company), the arbitration shall be held at the KCAB. In case the claimant is (a Chinese Company), the arbitration shall be held at the CIETAC" Request for Arbitration The request shall contain the following information Name in full, description and addresses of each of the parties A description of the nature and circumstances of the dispute giving rise to the claims The relief sought of any amounts claimed Composition of Arbitral Tribunal Parties may, by their agreement, appoint arbitrator(s) or the method of appointment. The number of arbitrators, a Sole Arbitrator or three Arbitrators Appointment by Secretariat Three Arbitrators shall be appointed taking into consideration the size, complexity or the factors of the dispute General Provisions Arbitrators acting under the Rules shall be and remain at all times, impartial and independent. Prior to accepting appointment: a prospective arbitrator shall disclose in writing to the Secretariat, any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Arbitral Awards The arbitral award shall have the same effect on the parties as the final and conclusive judgment of the Court. The enforcement of an foreign arbitral award shall be granted by the judgment of a Court (Provisions on the New York Convention, 1958) Case Study Main Issues: Breach of Contract Claimant is alleging that Respondent has a responsibility for the damages. • Claimant: There were product defects or quality claims such as inferior parts and excessive noise etc. Claim on loss caused by slow sales of 950 sets in quality problem among totally supplied 2,000 sets. The Claimant also alleges that the Respondent should compensate for all damages incurred by them. Respondent: Not by quality problem, but by the Claimant incapability for distribution and unfavorable external factors such as brand in the market. There was an agreement that in case of 5% or more of defects among the goods supplied by the Respondent. As to the Respondent's assertion that sales contract terms, must be construed as consistent with course of performance and dealing. Considering the circumstances: The main commercial risks in international trade relate to; Goods not matching the requirements of the order, goods which are unsatisfactory because they are of poor quality, poor value. The testing results of the defects in the chip processor and the conclusion are different. The evaluative defect is not clear about the object of comparison that is objective in standard and the measuring method is different from a common one. Any claims by Buyer of whatever nature arising under this contract shall be made by e-mail within three months after arrival of the goods at the destination specified in the Bills of Lading. Full particulars of such claim shall be made in writing, and forwarded by registered mail to Seller within 30 days after claim notice. Buyer must submit with particulars authorized Surveyor's Reports when the quality or quantity of the goods delivered is in dispute. CISG should be applicable The applicable laws to find the facts of this case and to provide legal interpretation and construction, including the burden of proof, good faith principle and consideration of equity, shall be the body of CISG. CISG 38(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances CISG 39(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. CASE: Performance of the Sales Contract Summary of Relief Sought 1. The Respondent shall pay to the Claimant the sum ofUS$425,730 with interest thereon from March 9, 2010 . 2. The Respondent shall compensate the Claimant for lost profits arising from the need to re-allocate Claimant's purchase of the subject goods. Reasons for Award 1. Basic Facts relating to the Disputes According to Claimant's Exhibits A and B and Respondent's Exhibit 4, the Claimant and the Respondent have agreed that all disputes in connection with the subject sales contracts shall be finally settled by arbitration before the KCAB in accordance with the Arbitration Rules. The principal issues of this case whether the Sales Contract has indeed been established and if so, who shall be liable for the consequences in the event of failure to perform the Sales Contract. The scope of such liability and quantum of damages . The Respondent's act to have returned the Sales Contract via facsimile stating thereon "Not Confirm", an ambiguous expression, as a firm expression to reject the modified offer by the Claimant in the international transaction. The Respondent may not avoid the responsibility arising out of its non-performance of the Sales Contract. The compensation of actual damages, it is not necessarily true that there shall be no causal link between any damages incurred by the Claimant. The Tribunal determines that the Sales Contract has indeed been established. Both parties were duly obliged to faithfully perform their respective contractual obligations. The Respondent, having been alerted to the seriousness of its liability which may be triggered due to its non-performance of the Sales Contract, attempted to find a way out for indulgence. This award is prepared by the Tribunal in both the Korean and English language so that both versions may have force as the duly authenticated award. There should be any discrepancy of this award, the Korean version shall prevail as a matter of the laws of Korea. The judgment upon this award may be entered in any court having proper jurisdiction. =Arbitration Under Investment Treaties= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. ih3y6alvmb35ae3r8sf4appb7k6kwbz 36425 36424 2026-08-12T23:00:52Z Bykim2012 1312 /* 국제중재동향 */ 36425 wikitext text/x-wiki =도입= 1. 분쟁은 피하기 어렵다 * 사회와 비즈니스가 복잡해지면서 이해관계와 사실관계에 대한 시각 차이로 갈등과 분쟁이 발생한다. * 소송은 대표적인 해결 방법이지만 항소·상고까지 가면 수년이 걸리고 경제적·감정적 비용도 크다. 2. 중재란 무엇인가 * 법적 의미의 중재는 당사자 간 합의에 따라 법원의 재판 대신 중재인의 판정으로 분쟁을 해결하는 절차다. * 일상적으로 말하는 ‘중재’와 달리, 법적 중재의 판정은 법적 구속력을 가진다. * 협상이나 알선은 당사자의 합의에 의존하지만, 중재판정은 법적 효력이 있다는 점이 다르다. 3. 중재의 주요 장점 * 당사자 자율성: 중재인, 언어, 준거법, 절차 등을 당사자의 합의에 따라 정할 수 있다. * 신속성: 일반적인 소송과 달리 원칙적으로 단심으로 끝나므로 시간과 비용을 줄일 수 있다. * 전문성: 당사자가 해당 분야의 전문지식과 경험을 가진 중재인을 직접 선정할 수 있다. * 비공개성: 중재는 원칙적으로 비공개이므로 기업의 영업비밀이나 평판 보호에 유리하다. 4. 국제분쟁에서 특히 유용하다 * 한국 기업이 해외 기업과 분쟁을 벌일 경우 상대국 법원에서 현지 언어와 법률에 따라 소송하는 것은 큰 부담이 될 수 있다. * 국제중재를 이용하면 상대방 국가의 법원에서 직접 소송하는 부담을 줄일 수 있다. * 중재판정은 뉴욕협약에 따라 다수 국가에서 승인·집행될 수 있어 국제거래에서 중요한 장점이 있다. 5. 가장 중요한 전제: 중재합의 * 중재를 이용하려면 당사자 간 중재합의가 반드시 필요하다. * 일반적으로 계약서의 '''중재조항(arbitration clause)'''으로 미리 정해 둔다. * 사전에 중재합의가 없다면 일방적으로 중재절차를 시작하기 어렵다. * 따라서 국제거래 계약을 체결할 때 분쟁해결 방법을 미리 정하는 것이 중요하다. 6. 중소기업·소상공인이 특히 주의할 점 * 실제 국제분쟁 상담 사례에서는 계약서 자체가 없거나 분쟁해결조항이 빠져 있는 경우가 적지 않다. * 계약 체결 당시에는 거래를 빨리 시작하는 데 집중하기 쉽지만, 분쟁이 발생하면 이러한 준비 부족이 큰 위험으로 돌아올 수 있다. * 전문적인 계약 작성이 어렵다면 중재원이 제공하는 표준 중재조항을 활용하는 것이 권장된다. =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= This class is aiming at introducing students to the general role of the Korean Court in arbitration, and improving the students' understanding of the practical issues as to setting aside of arbitral awards(domestic awards) or refusing the enforcement of arbitral awards(mainly foreign awards) through reviewing the Korean Courts' decisions. =Proof and Procedure in Common Law= This presentation will cover a broad range of basic rules of procedure and evidence in common law jurisdictions. Emphasis will be placed on the how these rules apply to international disputes. Civil Trials in Common Law Jurisdictions A. Overview of Trials in Common Law Jurisdictions.. (커먼로 관할에서의 소송절차 개관) 1. The Actors (소송의 주체) a. Plaintiff. (원고) b. Defendant. (피고) c. Judge. (판사) d. Fact Finder. (사실관계 판단자) The jury; if no jury, then the judge 2. The Trial. (재판 심리) The parties submit evidence in support of their claims or defenses. After a party submits evidence, the other party has an opportunity to challenge the veracity or authenticity of the evidence. In common law jurisdictions, only the plaintiff and defendant are active in submitting and challenging the a、ridence; the judge and fact finder are mostly passive observers during the trial. 3. The Ruling. (판결, 결정) After all evidence is submitted at trial, the fact finder makes findings of fact based on the evidence. The fact finder rules that one party’s rendition of the facts is more credible than the other party’s rendition. Then that factual finding is applied to the law. B. Commencing a Civil Lawsuit. (민사소송의 개시 ) 1. Filing a Complaint. (소장 접수) A civil action starts when the plaintiff files a complaint with the court. The complaint is a statement of facts stating the plaintiff’s legal c1aim. 2. Serving Notice. (소장 및 소송고지서의 송달) After receiving the complaint, the court will issue a summons. this is an order for the defendant to answer the complaint. The plaintiff (not the court) has the duty to serve a copy of the complaint and summons on the defendant. The summons and complaint serve as notice of the lawsuit and must be properly served on the defendant before the civil action can proceed. C. The Pleadings. (소장 및 답변서 진 차) Pleadings are the parties’ initial statements of their case to the court and to each other. 1. Complaint. (소장) The complaint is the initial pleading and is filed by the plaintiff. 2. Answer. ( 답변서) The defendant’s pleading is the answer. In the answer, the defendant must admit or deny any factual allegations in the complaint. The defendant may also raise affirmative defenses or grounds for dismissal. 3. Counter-Claims. (반소장) The defendant may a1so state claims against the plaintiff. These claims are called counterclaims and 、‘ìill be tried in the same proceeding‘ The plaintiff must thereafter file an answer in response to the defendant’s counter claims. 4. Cross-Claims. (피고상호 청구) If there are multiple defendants, a defendant with a claim against another defendant may file those claims with the court. One defendant’s allegations against another defendant are called cross claims. 5. Impleader. 제3자 소송참가) If the defendant alleges that another partY IS wholly or partially liable for the plaintiff’s claim, he may request to have that third party joined in the law suit. This procedure is called ímpleader. 6. Strategy and Pleadings. The scope of the plaintiff’s case and the defendant's defenses are determined by the content of the pleadings. Neither plaintiff nor defendant can present a claim or affirmative defense at trial that is not contained in the pleadings. 7. Amending the Pleadings. (주장, 항변의 변경) The parties can amend the pleadings to add allegations or defenses at the early stages of the proceedings. The court has discretion to allow amendments and may not accept amendments once the trial has commenced. D. Early Defenses. (조기 제출 항변 사유) The defendant may raise any of the following defenses in the answer or by a special procedure called a motion. 1. Improper Service of Process. (부적법 송달) An action will be dismissed if the plaintiff improperly served the complaint on the defendant. The plaintiff may be able to serve process again if the timeline for service of process has not yet expired or the court grants a time extension for service. 2. Failure to State a Cause of Action. (법적 정 인 부존재) An action will be dismissed if the plaintiff’s allegations, even if true, do not state a cause of action which the law recognized or provides a remedy. 3. Lack of Personal Jurisdiction. (인적 관할 부존재) An action must be dismissed if the court does not have personal jurisdiction over the defendant. Personal jurisdiction is proper under the following circumstances: (적 법한 인적사유들) a. Personal Service of Process in State. (법원 지역에 있는 피고에 [H 한 직 접 교부) If the plaintiff personally serves the summons and complaint on the defendant in the state where the court is located, personal jurisdiction is satisfied. b. Defendant is a State Domiciliary. (피고가 법원 관할 지역내 거주자) A court’s Personal jurisdiction is always satisfied as to domicìlìary (citizen) of the state where is court is located. c. Defendant is a Corporation Doing Business in State. (회사의 해당 주에서 설립허가받거나 주된 영업을 하고 있음) A corporation that is licensed in a state or that does substantial business in a state can be sued on any claim in that state. d. Defendant Consents to Personal Jurisdiction. (피고가 관할메 동의) Personal jurisdiction is proper if the defendant voluntarily appears or contractually agrees to appear for trial in the state. e. Defendant has Sufficient Minimum Contacts. (피고가 해 당 주에 죄소연 점 있을 것) If a defendant is not located in the state where she has been sued, the U.S. Supreme Court has developed a “ Minimum Contacts" test to determine if personal jurisdiction would still be proper. (Complicated Legal Analysis) f. In Rem Jurisdiction. (물적 판할 소재지) If the lawsuit relates only to possession or ownership of property, then jurisdiction is proper in the state where the property is located even if personal jurisdiction over the defendant is not otherwise satisfied. 4. Lack of Subject Matter Jurisdiction. (사물관할 부존재) A lawsuit must be dismissed if the court does not have the authority to hear the type of dispute the plaintiff has Initiated. 5. Affirmative Defenses. (각하항번사유) The defendant may also motion to dismiss a case based on any of the following defenses: a. State of Limitations. (소멸시효 완성) The time limit for filing the plaintiff’s action had passed at the time the plaintiff filed. b. Payment of Debt. (변제) The plaintiff’s complaint alleges that the defendant owes adebt， but the defendant has proof that she already paid the debt. c. Arbitration Resolved. (중재 성립) The defendant can prove that the issue has already been resolved in arbitration. d. Release by Plaintiff. (면제) The defendant can prove that the plaintiff has already contractually released the defendant (SETTLEMENT) e. Res Judicata. (기판력) The case or issue has already been resolved at trial. f. Infancy of Defendant. (피고의 미성년, 의사무능력) The defendant is an infant and incompetent to stand trial. g. Bankruptcy Discharge. (파산) The claim is for payment of a debt, and the debt has already been discharged in bankruptcy. h. Statute of Frauds. (특정 계약에서 서면부존재) The claim is based on a contract that must be in writing to be enforceable, and there is no such written document E. Preparing for Trial. (제판준비잘차) Once all of the pleadings are submitted, the court will set a trial date and outline a schedule for discovery. 1. Discovery. (증거개시 제도) Discovery is the process whereby the parties collect evidence from each other and determine the strength of the other's party’s case. Civil Procedure law allows each party to request information from the other party that relates to the case. The scope of discovery is very broad, and each party is generally obligated to give the other party any evidence requested. The court has GREAT discretion is ordering a party to comply with discovery requests. In extreme cases, the court may penalize a non-cooperative party with a monetary fine, brief detention， or even declare the other party the victor of the case! a. Disclosure Devices. (개시 수단, 방법) i. Initial Disclosures. (개시 시작) Before formal discovery begins, the parties are required to disclose the location of documents that are relevant to the case. The parties are also required to describe any documents or other evidence that is likely to be used by EITHER PARTY at trial-e.g.， contracts, tìt1e documents, insurance contracts, etc. ii. Depositions. (진술 녹취) These are formal, recorded intervieWS of the other party or witnesses. The purpose Ís to 1earn more about the case or the existence of evidence. A deposed witness MUST tell the truth or she can be punished criminally. iii. Interrogatories. (서면 질의) These are written questions submitted to the other party or a witness. The recipient must answer the written questions m wntmg. iv. Documents Requests. (서면 요구) A document request COMPELS the recipient to submit copies of all documents that match the r，equesting party's request‘ v. Medical Exams. (으| 학적 검사) A party can request other person to be examined. vi. Requests for Admission. (사실인정 요구) A party can ask the other party to admit to certain facts. b. Objections to Disclosure. (증거개시에 대한 이의) The parties generally try to work it out on their own. lf they cannot, one of them will motion the court. The requesting party wiU file a motion to compel and the objecting party will seek a protective order. C. Remedies for Failure to Disclose. (종거개시 거부에 대한 구제) Civil or criminal contempt of court; in some extreme circumstances, the court may terminate the case by ruling in favor of the non-offending party. 2. Settlement Negotiations. (화해어l 의한 분쟁 종결) Parties are encouraged to negotiate a settlement of their dispute outside of court. Once the parties have agreed to a settlement， they typically sign accord or settlement agr야ment. The agreement is pay some money or take some action in exchange for the other party promising to drop the case and not sue again (accord). F. Judgments before Trial. (심 리전 재판) 1. Summary Judgment. (심 리전 판결) Either party may, before the presentation of evidence commenιes at trial, motion the court for summary judgment. The court w피then review the documents， affidavits, and other evidence to determine whether there is any issue of fact requiring a trial. If the e、ridence so strongly favors one party that reasonable jurors could not differ in opinion, then the court will enter summary judgment on the case. 2. Default. (으|제자백 또는 각하결정) If the defendant fails to answer the summons and complaint or if either party fails to aetively participate in the trial, the court will make an order of default. Afterwards, the non-defaulting party may request the court to enter judgment by default in her favor. G. The Trial. (재판 심리) Once the parties have finished collecting their evidence, they go trial. At trial, the parties use evidence to convince the jury that their assertions are true and that their opponent’s assertions lack merit. 1. Role of Judge. (판사 역할) The judge determines all motions, administers the proceedings according to the rules of procedure, ensures the parties present evidence according to the rules of evidence, and instructs the jury on the relevant law. 2. Role of the Lawyers. (변호사 댁 The lawyers try to convince the jury (or fact finder) that their client should win the case. Lawyers do this by presenting evidence, questioning witnesses, and attacking the credibility of the other party’s evidence or witnesses (impeachment). 3. Role of Jury. (배심원 역할) In most cases, the fact finder is the jury, a group of‘ unbiased citizens. The parties may agree to try the case without a jury. If so, the judge is the fact finder. In either case, the fact finder must decide every element or issue of the plaintiff’s claims and the defendant’s defenses. Factual findings must be based only on ADMISSIBLE evidence presented at trial. H. Evidence (증거). 1. Purpose of Evidence. (증거제줄 목적) The parties present evidence in order to convince the fact finder that their factual allegations or defenses are credible/true. The fact finder can base its findings only on the evidence properly admitted at trial. 2. Relevance. (관련성) The most important rule of evidence is this: only relevant evidence is admissible‘ Evidence is relevant if it had tendency to make a t would be without the evidence. 3. Judge Discretion. (판사 재량) The judge is the referee in the jury trial. As such, the judge must make sure that the parties observe the rules of evidence. The judge can exclude evidence if the rules of evidence require it. Also, the judge may exclude some admissible evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion or undue delay of the trial. 4. Methods of Presenting Evidence. (증거 종류) There are a number of ways to present evidence at trial: a. Witness Testimony. (일반 종류) Non-expert witnesses are allowed to testify regarding facts they witnessed first hand. They may also testify regarding their opinion of a party or the reputation of a party. b. Expert Witness Testimony. (전문가 증언) Parties often present the testimony of an expert witness. The court must first ensure that the witness is qualified as an expert before he or she is allowed to testify at trial. c. Hearsay. (전문증거 배제) There are very strict limits on how statements or documents made outside of court can be presented in court. These rules are complicated, but the goal is to keep unreliable evidence out of trial. d. Impeachment. (탄핵증거) Either party may attack the credibility of a witness. This is usual1y done by showing that the witness’s testimony is unreliable or false. e. Documentary Evidence Rules. (증거능력) Before entering documents, pictures, or other re:cording into evidence, the party must first establish that the document or recording is in fact what she purports it to be 5. Excluding Inadmissible Evidence. (증거배제방법) a. An Objection. (증거이의) If a party believes that evidence presented by the other party is improper, he must immediately state his objection to the court. The judge wiU then rule whether to allow the evidence or exclude it. b. A Motion to Dismiss. (사전증거이으1) Often a party will know in advance that the other partY wishes to present disputed evidenceIn this case, the party can motion the court to exclude the evidence before trial. The judge must exclude the evidence if it is improper under the rules of evidence. c. A Limiting Instruction. (증거배제 지시) If a party does present improper evidence, the judge must order the evidence improper and instruct the jury to 19 nor응 the evidence. If there is no jury, the judge MUST NOT consider that evidence when making the final decision in the case. I. Judgments (판결) 1. Judge Instructs the Jury on the Law and Instructs them to Reach a Finding on Each Element of the Cause of Action. After the presentation of evidence, the judge will instruct the jury on the law. Usually, this means that the judge will explain every legal element of the plaintiff’s claim, and then tells the jury to weigh the evidence as to every element. Also, the judge will instruct the jury to ignore any evidence that was improperly mentioned or introduced. 2. Judge is Bound by Jury Determinations. The judge is bound by the jury determinations UNLESS one of the parties moves for Judgment Notwithstanding the Verdict (JNOV). By using this motion, a party argues that the jury’s determination is against the clear weight of the evidence. If the court grants the motion, it essentially reverses the jury’s determination on the contested is없le(s) of fact. J. Res Judicata. (기판력) Courts CANNOT and WILL NOT re-try issues of 훨학 that have already been determined at trial. 1. Claim Preclusion. (청구원인에 대한 기판력) Once a lawsuit has come to final judgment, the plaintiff‘ cannot sue the defendant on any claim arising from the same transaction or occurrence that gave rise to the lawsuit. 2. Issue Preclusion. (이슈에 대한 기판력) Once a fact finder has determined an issue of fact at trial, that fact will not be tried again if the issue is rele、'ant in a future lawsuit. K. Appeals. (항소절차) Once the trial has reached a final judgment, the unsuccessful party may appeal any decision or ruling of the trial court, but only if they objected to it at trial. 1. Timely Appeal. (항소제기 지 간) In most jurisdictions, an appeal must be filed within 30 days from the date of the judgment. 2. Role of Appeals Court. (항소심의 심 리 범위) Courts of appeals will fully review lower courts determinations of law (issues of law)‘ Appeals courts will only review a trial court’s finding of fact if it is clearly erroneous (clearly against the evidence). L. Enforcement. (앙제집행) Courts can only render judgments; they have no power to enforce their judgments. In most cases, the losing party wi1l voluntarily pay the judgment. If not, the victorious party must find a way to enforce the judgment. 1. Role of the Government. (경잘의 집행권한) Court judgments are enforced through an order of execution. Execution is issued by the court and delivered to executive branch officials (usually police), who order the losing party to pay the judgment. Otherwise, the police attach or seize property and hold a sale of the debtor피 property to satisfy the judgment amount. 2. Sufficient Assets? (집행 불능 경우 및 불능재산) If the judgment debtor has insufficient assets to pay the judgment, then the victorious party in court will go unpaid. In some states, some assets such as the family home, one car, pension benefits, etc. are exempt property and, thus, cannot be levied to satisfy a debt. =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= The Arbitration Agreement Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration under KCAB Rules/International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. Conducted in Claimant's Country: "All disputes in relation to this contract shall be finally settled by arbitration in this country of the claimant. In case the claimant is (a Korean Company), the arbitration shall be held at the KCAB. In case the claimant is (a Chinese Company), the arbitration shall be held at the CIETAC" Request for Arbitration The request shall contain the following information Name in full, description and addresses of each of the parties A description of the nature and circumstances of the dispute giving rise to the claims The relief sought of any amounts claimed Composition of Arbitral Tribunal Parties may, by their agreement, appoint arbitrator(s) or the method of appointment. The number of arbitrators, a Sole Arbitrator or three Arbitrators Appointment by Secretariat Three Arbitrators shall be appointed taking into consideration the size, complexity or the factors of the dispute General Provisions Arbitrators acting under the Rules shall be and remain at all times, impartial and independent. Prior to accepting appointment: a prospective arbitrator shall disclose in writing to the Secretariat, any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Arbitral Awards The arbitral award shall have the same effect on the parties as the final and conclusive judgment of the Court. The enforcement of an foreign arbitral award shall be granted by the judgment of a Court (Provisions on the New York Convention, 1958) Case Study Main Issues: Breach of Contract Claimant is alleging that Respondent has a responsibility for the damages. • Claimant: There were product defects or quality claims such as inferior parts and excessive noise etc. Claim on loss caused by slow sales of 950 sets in quality problem among totally supplied 2,000 sets. The Claimant also alleges that the Respondent should compensate for all damages incurred by them. Respondent: Not by quality problem, but by the Claimant incapability for distribution and unfavorable external factors such as brand in the market. There was an agreement that in case of 5% or more of defects among the goods supplied by the Respondent. As to the Respondent's assertion that sales contract terms, must be construed as consistent with course of performance and dealing. Considering the circumstances: The main commercial risks in international trade relate to; Goods not matching the requirements of the order, goods which are unsatisfactory because they are of poor quality, poor value. The testing results of the defects in the chip processor and the conclusion are different. The evaluative defect is not clear about the object of comparison that is objective in standard and the measuring method is different from a common one. Any claims by Buyer of whatever nature arising under this contract shall be made by e-mail within three months after arrival of the goods at the destination specified in the Bills of Lading. Full particulars of such claim shall be made in writing, and forwarded by registered mail to Seller within 30 days after claim notice. Buyer must submit with particulars authorized Surveyor's Reports when the quality or quantity of the goods delivered is in dispute. CISG should be applicable The applicable laws to find the facts of this case and to provide legal interpretation and construction, including the burden of proof, good faith principle and consideration of equity, shall be the body of CISG. CISG 38(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances CISG 39(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. CASE: Performance of the Sales Contract Summary of Relief Sought 1. The Respondent shall pay to the Claimant the sum ofUS$425,730 with interest thereon from March 9, 2010 . 2. The Respondent shall compensate the Claimant for lost profits arising from the need to re-allocate Claimant's purchase of the subject goods. Reasons for Award 1. Basic Facts relating to the Disputes According to Claimant's Exhibits A and B and Respondent's Exhibit 4, the Claimant and the Respondent have agreed that all disputes in connection with the subject sales contracts shall be finally settled by arbitration before the KCAB in accordance with the Arbitration Rules. The principal issues of this case whether the Sales Contract has indeed been established and if so, who shall be liable for the consequences in the event of failure to perform the Sales Contract. The scope of such liability and quantum of damages . The Respondent's act to have returned the Sales Contract via facsimile stating thereon "Not Confirm", an ambiguous expression, as a firm expression to reject the modified offer by the Claimant in the international transaction. The Respondent may not avoid the responsibility arising out of its non-performance of the Sales Contract. The compensation of actual damages, it is not necessarily true that there shall be no causal link between any damages incurred by the Claimant. The Tribunal determines that the Sales Contract has indeed been established. Both parties were duly obliged to faithfully perform their respective contractual obligations. The Respondent, having been alerted to the seriousness of its liability which may be triggered due to its non-performance of the Sales Contract, attempted to find a way out for indulgence. This award is prepared by the Tribunal in both the Korean and English language so that both versions may have force as the duly authenticated award. There should be any discrepancy of this award, the Korean version shall prevail as a matter of the laws of Korea. The judgment upon this award may be entered in any court having proper jurisdiction. =Arbitration Under Investment Treaties= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. fqmzsmbbowr3ongaqd8hvp64eoj4rux 36426 36425 2026-08-12T23:03:35Z Bykim2012 1312 /* 도입 */ 36426 wikitext text/x-wiki =도입= 1. 분쟁은 피하기 어렵다 * 사회와 비즈니스가 복잡해지면서 이해관계와 사실관계에 대한 시각 차이로 갈등과 분쟁이 발생한다. * 소송은 대표적인 해결 방법이지만 항소·상고까지 가면 수년이 걸리고 경제적·감정적 비용도 크다. 2. 중재란 무엇인가 * 법적 의미의 중재는 당사자 간 합의에 따라 법원의 재판 대신 중재인의 판정으로 분쟁을 해결하는 절차다. * 일상적으로 말하는 ‘중재’와 달리, 법적 중재의 판정은 법적 구속력을 가진다. * 협상이나 알선은 당사자의 합의에 의존하지만, 중재판정은 법적 효력이 있다는 점이 다르다. 3. 중재의 주요 장점 * 당사자 자율성: 중재인, 언어, 준거법, 절차 등을 당사자의 합의에 따라 정할 수 있다. * 신속성: 일반적인 소송과 달리 원칙적으로 단심으로 끝나므로 시간과 비용을 줄일 수 있다. * 전문성: 당사자가 해당 분야의 전문지식과 경험을 가진 중재인을 직접 선정할 수 있다. * 비공개성: 중재는 원칙적으로 비공개이므로 기업의 영업비밀이나 평판 보호에 유리하다. 4. 국제분쟁에서 특히 유용하다 * 한국 기업이 해외 기업과 분쟁을 벌일 경우 상대국 법원에서 현지 언어와 법률에 따라 소송하는 것은 큰 부담이 될 수 있다. * 국제중재를 이용하면 상대방 국가의 법원에서 직접 소송하는 부담을 줄일 수 있다. * 중재판정은 뉴욕협약에 따라 다수 국가에서 승인·집행될 수 있어 국제거래에서 중요한 장점이 있다. 5. 가장 중요한 전제: 중재합의 * 중재를 이용하려면 당사자 간 중재합의가 반드시 필요하다. * 일반적으로 계약서의 '''중재조항(arbitration clause)'''으로 미리 정해 둔다. * 사전에 중재합의가 없다면 일방적으로 중재절차를 시작하기 어렵다. * 따라서 국제거래 계약을 체결할 때 분쟁해결 방법을 미리 정하는 것이 중요하다. 6. 중소기업·소상공인이 특히 주의할 점 * 실제 국제분쟁 상담 사례에서는 계약서 자체가 없거나 분쟁해결조항이 빠져 있는 경우가 적지 않다. * 계약 체결 당시에는 거래를 빨리 시작하는 데 집중하기 쉽지만, 분쟁이 발생하면 이러한 준비 부족이 큰 위험으로 돌아올 수 있다. * 전문적인 계약 작성이 어렵다면 중재원이 제공하는 표준 중재조항을 활용하는 것이 권장된다. =국제중재 신청부터 중재인 선정= 1. 중재 신청의 기본 조건 * 당사자 간에 유효한 중재조항 또는 중재합의가 있어야 한다. * 요건을 갖추면 중재기관에 사건을 신청할 수 있다. 2. 중재신청서 작성 * 중재신청서에는 신청 취지, 신청 이유, 증거자료, 상대방의 주소와 연락처 등을 기재한다. * 중재인은 사건을 직접 경험한 사람이 아니므로, 신청서가 사건에 대한 첫인상이 된다. * 따라서 객관적이고 구체적으로 사실관계를 설명하고, 청구 내용과 금액을 명확하게 제시해야 한다. * 특히 신청 이유는 분쟁의 발생 경위와 청구 원인을 설명하는 핵심 부분이다. * 원칙적으로 인쇄본을 제출하며, 단독 중재인 사건이라면 중재기관·피신청인·신청인용 등 필요한 부수를 제출한다. 3. 중재 언어 * 국제중재에서는 상대방이 외국 기업인 경우가 많아 영어가 중재 언어로 사용될 가능성이 높다. * 그러나 중재합의나 당사자 간 사후 합의에 따라 한국어를 사용할 수도 있다. * 중재 언어가 정해져 있지 않다면 중재인이 계약서의 언어, 당사자의 언어 능력, 사건의 상황 등을 고려해 결정할 수 있다. * 상대방의 대표자나 임직원이 한국인이거나 한국 변호사를 선임한 경우에는 국제중재라도 한국어로 진행될 가능성이 있다. 4. 중재 비용 * 중재 신청 시에는 법원 소송의 인지대와 유사한 신청요금이 발생한다. * 대한상사중재원의 경우 영상에서 설명한 기준으로 신청요금은 부가가치세 포함 110만 원이다. * 그 밖에 중재 비용은 크게 다음 세 가지로 구성된다. * 관리요금: 중재기관의 사건 관리·행정 비용 * 중재인 수당: 중재인의 업무와 시간에 대한 보수 * 중재인 경비: 회의·송달·출장·항공료·숙박료 등 실제 발생 비용 * 일반적으로 분쟁금액이 클수록 중재 비용도 증가한다. * 국제중재에서는 통상 신청인과 피신청인이 중재 비용을 균분하여 납부하도록 한다. * 피신청인이 자신의 비용을 내지 않으면 신청인이 부족분을 추가 납부하도록 요청받을 수 있으며, 비용이 모두 납부되어야 다음 절차가 진행될 수 있다. 5. 중재인 선정 * 비용 납부가 완료되면 분쟁을 판단할 중재인 선정 단계로 넘어간다. * 중재판정은 원칙적으로 단심이므로 중재인의 전문성·공정성이 매우 중요하다. * 당사자들이 합의하여 중재인을 선정할 수 있고, 합의가 되지 않으면 중재기관이 선정한다. * 선정 과정에서는 분쟁금액, 사건의 복잡성, 당사자의 국적 및 사건 분야 등을 고려한다. * 일반적으로 분쟁금액이 30억 원을 초과하면 3인 중재판정부, 그 이하이고 사실관계가 비교적 단순하면 단독 중재인으로 진행되는 경우가 많다. =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= This class is aiming at introducing students to the general role of the Korean Court in arbitration, and improving the students' understanding of the practical issues as to setting aside of arbitral awards(domestic awards) or refusing the enforcement of arbitral awards(mainly foreign awards) through reviewing the Korean Courts' decisions. =Proof and Procedure in Common Law= This presentation will cover a broad range of basic rules of procedure and evidence in common law jurisdictions. Emphasis will be placed on the how these rules apply to international disputes. Civil Trials in Common Law Jurisdictions A. Overview of Trials in Common Law Jurisdictions.. (커먼로 관할에서의 소송절차 개관) 1. The Actors (소송의 주체) a. Plaintiff. (원고) b. Defendant. (피고) c. Judge. (판사) d. Fact Finder. (사실관계 판단자) The jury; if no jury, then the judge 2. The Trial. (재판 심리) The parties submit evidence in support of their claims or defenses. After a party submits evidence, the other party has an opportunity to challenge the veracity or authenticity of the evidence. In common law jurisdictions, only the plaintiff and defendant are active in submitting and challenging the a、ridence; the judge and fact finder are mostly passive observers during the trial. 3. The Ruling. (판결, 결정) After all evidence is submitted at trial, the fact finder makes findings of fact based on the evidence. The fact finder rules that one party’s rendition of the facts is more credible than the other party’s rendition. Then that factual finding is applied to the law. B. Commencing a Civil Lawsuit. (민사소송의 개시 ) 1. Filing a Complaint. (소장 접수) A civil action starts when the plaintiff files a complaint with the court. The complaint is a statement of facts stating the plaintiff’s legal c1aim. 2. Serving Notice. (소장 및 소송고지서의 송달) After receiving the complaint, the court will issue a summons. this is an order for the defendant to answer the complaint. The plaintiff (not the court) has the duty to serve a copy of the complaint and summons on the defendant. The summons and complaint serve as notice of the lawsuit and must be properly served on the defendant before the civil action can proceed. C. The Pleadings. (소장 및 답변서 진 차) Pleadings are the parties’ initial statements of their case to the court and to each other. 1. Complaint. (소장) The complaint is the initial pleading and is filed by the plaintiff. 2. Answer. ( 답변서) The defendant’s pleading is the answer. In the answer, the defendant must admit or deny any factual allegations in the complaint. The defendant may also raise affirmative defenses or grounds for dismissal. 3. Counter-Claims. (반소장) The defendant may a1so state claims against the plaintiff. These claims are called counterclaims and 、‘ìill be tried in the same proceeding‘ The plaintiff must thereafter file an answer in response to the defendant’s counter claims. 4. Cross-Claims. (피고상호 청구) If there are multiple defendants, a defendant with a claim against another defendant may file those claims with the court. One defendant’s allegations against another defendant are called cross claims. 5. Impleader. 제3자 소송참가) If the defendant alleges that another partY IS wholly or partially liable for the plaintiff’s claim, he may request to have that third party joined in the law suit. This procedure is called ímpleader. 6. Strategy and Pleadings. The scope of the plaintiff’s case and the defendant's defenses are determined by the content of the pleadings. Neither plaintiff nor defendant can present a claim or affirmative defense at trial that is not contained in the pleadings. 7. Amending the Pleadings. (주장, 항변의 변경) The parties can amend the pleadings to add allegations or defenses at the early stages of the proceedings. The court has discretion to allow amendments and may not accept amendments once the trial has commenced. D. Early Defenses. (조기 제출 항변 사유) The defendant may raise any of the following defenses in the answer or by a special procedure called a motion. 1. Improper Service of Process. (부적법 송달) An action will be dismissed if the plaintiff improperly served the complaint on the defendant. The plaintiff may be able to serve process again if the timeline for service of process has not yet expired or the court grants a time extension for service. 2. Failure to State a Cause of Action. (법적 정 인 부존재) An action will be dismissed if the plaintiff’s allegations, even if true, do not state a cause of action which the law recognized or provides a remedy. 3. Lack of Personal Jurisdiction. (인적 관할 부존재) An action must be dismissed if the court does not have personal jurisdiction over the defendant. Personal jurisdiction is proper under the following circumstances: (적 법한 인적사유들) a. Personal Service of Process in State. (법원 지역에 있는 피고에 [H 한 직 접 교부) If the plaintiff personally serves the summons and complaint on the defendant in the state where the court is located, personal jurisdiction is satisfied. b. Defendant is a State Domiciliary. (피고가 법원 관할 지역내 거주자) A court’s Personal jurisdiction is always satisfied as to domicìlìary (citizen) of the state where is court is located. c. Defendant is a Corporation Doing Business in State. (회사의 해당 주에서 설립허가받거나 주된 영업을 하고 있음) A corporation that is licensed in a state or that does substantial business in a state can be sued on any claim in that state. d. Defendant Consents to Personal Jurisdiction. (피고가 관할메 동의) Personal jurisdiction is proper if the defendant voluntarily appears or contractually agrees to appear for trial in the state. e. Defendant has Sufficient Minimum Contacts. (피고가 해 당 주에 죄소연 점 있을 것) If a defendant is not located in the state where she has been sued, the U.S. Supreme Court has developed a “ Minimum Contacts" test to determine if personal jurisdiction would still be proper. (Complicated Legal Analysis) f. In Rem Jurisdiction. (물적 판할 소재지) If the lawsuit relates only to possession or ownership of property, then jurisdiction is proper in the state where the property is located even if personal jurisdiction over the defendant is not otherwise satisfied. 4. Lack of Subject Matter Jurisdiction. (사물관할 부존재) A lawsuit must be dismissed if the court does not have the authority to hear the type of dispute the plaintiff has Initiated. 5. Affirmative Defenses. (각하항번사유) The defendant may also motion to dismiss a case based on any of the following defenses: a. State of Limitations. (소멸시효 완성) The time limit for filing the plaintiff’s action had passed at the time the plaintiff filed. b. Payment of Debt. (변제) The plaintiff’s complaint alleges that the defendant owes adebt， but the defendant has proof that she already paid the debt. c. Arbitration Resolved. (중재 성립) The defendant can prove that the issue has already been resolved in arbitration. d. Release by Plaintiff. (면제) The defendant can prove that the plaintiff has already contractually released the defendant (SETTLEMENT) e. Res Judicata. (기판력) The case or issue has already been resolved at trial. f. Infancy of Defendant. (피고의 미성년, 의사무능력) The defendant is an infant and incompetent to stand trial. g. Bankruptcy Discharge. (파산) The claim is for payment of a debt, and the debt has already been discharged in bankruptcy. h. Statute of Frauds. (특정 계약에서 서면부존재) The claim is based on a contract that must be in writing to be enforceable, and there is no such written document E. Preparing for Trial. (제판준비잘차) Once all of the pleadings are submitted, the court will set a trial date and outline a schedule for discovery. 1. Discovery. (증거개시 제도) Discovery is the process whereby the parties collect evidence from each other and determine the strength of the other's party’s case. Civil Procedure law allows each party to request information from the other party that relates to the case. The scope of discovery is very broad, and each party is generally obligated to give the other party any evidence requested. The court has GREAT discretion is ordering a party to comply with discovery requests. In extreme cases, the court may penalize a non-cooperative party with a monetary fine, brief detention， or even declare the other party the victor of the case! a. Disclosure Devices. (개시 수단, 방법) i. Initial Disclosures. (개시 시작) Before formal discovery begins, the parties are required to disclose the location of documents that are relevant to the case. The parties are also required to describe any documents or other evidence that is likely to be used by EITHER PARTY at trial-e.g.， contracts, tìt1e documents, insurance contracts, etc. ii. Depositions. (진술 녹취) These are formal, recorded intervieWS of the other party or witnesses. The purpose Ís to 1earn more about the case or the existence of evidence. A deposed witness MUST tell the truth or she can be punished criminally. iii. Interrogatories. (서면 질의) These are written questions submitted to the other party or a witness. The recipient must answer the written questions m wntmg. iv. Documents Requests. (서면 요구) A document request COMPELS the recipient to submit copies of all documents that match the r，equesting party's request‘ v. Medical Exams. (으| 학적 검사) A party can request other person to be examined. vi. Requests for Admission. (사실인정 요구) A party can ask the other party to admit to certain facts. b. Objections to Disclosure. (증거개시에 대한 이의) The parties generally try to work it out on their own. lf they cannot, one of them will motion the court. The requesting party wiU file a motion to compel and the objecting party will seek a protective order. C. Remedies for Failure to Disclose. (종거개시 거부에 대한 구제) Civil or criminal contempt of court; in some extreme circumstances, the court may terminate the case by ruling in favor of the non-offending party. 2. Settlement Negotiations. (화해어l 의한 분쟁 종결) Parties are encouraged to negotiate a settlement of their dispute outside of court. Once the parties have agreed to a settlement， they typically sign accord or settlement agr야ment. The agreement is pay some money or take some action in exchange for the other party promising to drop the case and not sue again (accord). F. Judgments before Trial. (심 리전 재판) 1. Summary Judgment. (심 리전 판결) Either party may, before the presentation of evidence commenιes at trial, motion the court for summary judgment. The court w피then review the documents， affidavits, and other evidence to determine whether there is any issue of fact requiring a trial. If the e、ridence so strongly favors one party that reasonable jurors could not differ in opinion, then the court will enter summary judgment on the case. 2. Default. (으|제자백 또는 각하결정) If the defendant fails to answer the summons and complaint or if either party fails to aetively participate in the trial, the court will make an order of default. Afterwards, the non-defaulting party may request the court to enter judgment by default in her favor. G. The Trial. (재판 심리) Once the parties have finished collecting their evidence, they go trial. At trial, the parties use evidence to convince the jury that their assertions are true and that their opponent’s assertions lack merit. 1. Role of Judge. (판사 역할) The judge determines all motions, administers the proceedings according to the rules of procedure, ensures the parties present evidence according to the rules of evidence, and instructs the jury on the relevant law. 2. Role of the Lawyers. (변호사 댁 The lawyers try to convince the jury (or fact finder) that their client should win the case. Lawyers do this by presenting evidence, questioning witnesses, and attacking the credibility of the other party’s evidence or witnesses (impeachment). 3. Role of Jury. (배심원 역할) In most cases, the fact finder is the jury, a group of‘ unbiased citizens. The parties may agree to try the case without a jury. If so, the judge is the fact finder. In either case, the fact finder must decide every element or issue of the plaintiff’s claims and the defendant’s defenses. Factual findings must be based only on ADMISSIBLE evidence presented at trial. H. Evidence (증거). 1. Purpose of Evidence. (증거제줄 목적) The parties present evidence in order to convince the fact finder that their factual allegations or defenses are credible/true. The fact finder can base its findings only on the evidence properly admitted at trial. 2. Relevance. (관련성) The most important rule of evidence is this: only relevant evidence is admissible‘ Evidence is relevant if it had tendency to make a t would be without the evidence. 3. Judge Discretion. (판사 재량) The judge is the referee in the jury trial. As such, the judge must make sure that the parties observe the rules of evidence. The judge can exclude evidence if the rules of evidence require it. Also, the judge may exclude some admissible evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion or undue delay of the trial. 4. Methods of Presenting Evidence. (증거 종류) There are a number of ways to present evidence at trial: a. Witness Testimony. (일반 종류) Non-expert witnesses are allowed to testify regarding facts they witnessed first hand. They may also testify regarding their opinion of a party or the reputation of a party. b. Expert Witness Testimony. (전문가 증언) Parties often present the testimony of an expert witness. The court must first ensure that the witness is qualified as an expert before he or she is allowed to testify at trial. c. Hearsay. (전문증거 배제) There are very strict limits on how statements or documents made outside of court can be presented in court. These rules are complicated, but the goal is to keep unreliable evidence out of trial. d. Impeachment. (탄핵증거) Either party may attack the credibility of a witness. This is usual1y done by showing that the witness’s testimony is unreliable or false. e. Documentary Evidence Rules. (증거능력) Before entering documents, pictures, or other re:cording into evidence, the party must first establish that the document or recording is in fact what she purports it to be 5. Excluding Inadmissible Evidence. (증거배제방법) a. An Objection. (증거이의) If a party believes that evidence presented by the other party is improper, he must immediately state his objection to the court. The judge wiU then rule whether to allow the evidence or exclude it. b. A Motion to Dismiss. (사전증거이으1) Often a party will know in advance that the other partY wishes to present disputed evidenceIn this case, the party can motion the court to exclude the evidence before trial. The judge must exclude the evidence if it is improper under the rules of evidence. c. A Limiting Instruction. (증거배제 지시) If a party does present improper evidence, the judge must order the evidence improper and instruct the jury to 19 nor응 the evidence. If there is no jury, the judge MUST NOT consider that evidence when making the final decision in the case. I. Judgments (판결) 1. Judge Instructs the Jury on the Law and Instructs them to Reach a Finding on Each Element of the Cause of Action. After the presentation of evidence, the judge will instruct the jury on the law. Usually, this means that the judge will explain every legal element of the plaintiff’s claim, and then tells the jury to weigh the evidence as to every element. Also, the judge will instruct the jury to ignore any evidence that was improperly mentioned or introduced. 2. Judge is Bound by Jury Determinations. The judge is bound by the jury determinations UNLESS one of the parties moves for Judgment Notwithstanding the Verdict (JNOV). By using this motion, a party argues that the jury’s determination is against the clear weight of the evidence. If the court grants the motion, it essentially reverses the jury’s determination on the contested is없le(s) of fact. J. Res Judicata. (기판력) Courts CANNOT and WILL NOT re-try issues of 훨학 that have already been determined at trial. 1. Claim Preclusion. (청구원인에 대한 기판력) Once a lawsuit has come to final judgment, the plaintiff‘ cannot sue the defendant on any claim arising from the same transaction or occurrence that gave rise to the lawsuit. 2. Issue Preclusion. (이슈에 대한 기판력) Once a fact finder has determined an issue of fact at trial, that fact will not be tried again if the issue is rele、'ant in a future lawsuit. K. Appeals. (항소절차) Once the trial has reached a final judgment, the unsuccessful party may appeal any decision or ruling of the trial court, but only if they objected to it at trial. 1. Timely Appeal. (항소제기 지 간) In most jurisdictions, an appeal must be filed within 30 days from the date of the judgment. 2. Role of Appeals Court. (항소심의 심 리 범위) Courts of appeals will fully review lower courts determinations of law (issues of law)‘ Appeals courts will only review a trial court’s finding of fact if it is clearly erroneous (clearly against the evidence). L. Enforcement. (앙제집행) Courts can only render judgments; they have no power to enforce their judgments. In most cases, the losing party wi1l voluntarily pay the judgment. If not, the victorious party must find a way to enforce the judgment. 1. Role of the Government. (경잘의 집행권한) Court judgments are enforced through an order of execution. Execution is issued by the court and delivered to executive branch officials (usually police), who order the losing party to pay the judgment. Otherwise, the police attach or seize property and hold a sale of the debtor피 property to satisfy the judgment amount. 2. Sufficient Assets? (집행 불능 경우 및 불능재산) If the judgment debtor has insufficient assets to pay the judgment, then the victorious party in court will go unpaid. In some states, some assets such as the family home, one car, pension benefits, etc. are exempt property and, thus, cannot be levied to satisfy a debt. =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= The Arbitration Agreement Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration under KCAB Rules/International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. Conducted in Claimant's Country: "All disputes in relation to this contract shall be finally settled by arbitration in this country of the claimant. In case the claimant is (a Korean Company), the arbitration shall be held at the KCAB. In case the claimant is (a Chinese Company), the arbitration shall be held at the CIETAC" Request for Arbitration The request shall contain the following information Name in full, description and addresses of each of the parties A description of the nature and circumstances of the dispute giving rise to the claims The relief sought of any amounts claimed Composition of Arbitral Tribunal Parties may, by their agreement, appoint arbitrator(s) or the method of appointment. The number of arbitrators, a Sole Arbitrator or three Arbitrators Appointment by Secretariat Three Arbitrators shall be appointed taking into consideration the size, complexity or the factors of the dispute General Provisions Arbitrators acting under the Rules shall be and remain at all times, impartial and independent. Prior to accepting appointment: a prospective arbitrator shall disclose in writing to the Secretariat, any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Arbitral Awards The arbitral award shall have the same effect on the parties as the final and conclusive judgment of the Court. The enforcement of an foreign arbitral award shall be granted by the judgment of a Court (Provisions on the New York Convention, 1958) Case Study Main Issues: Breach of Contract Claimant is alleging that Respondent has a responsibility for the damages. • Claimant: There were product defects or quality claims such as inferior parts and excessive noise etc. Claim on loss caused by slow sales of 950 sets in quality problem among totally supplied 2,000 sets. The Claimant also alleges that the Respondent should compensate for all damages incurred by them. Respondent: Not by quality problem, but by the Claimant incapability for distribution and unfavorable external factors such as brand in the market. There was an agreement that in case of 5% or more of defects among the goods supplied by the Respondent. As to the Respondent's assertion that sales contract terms, must be construed as consistent with course of performance and dealing. Considering the circumstances: The main commercial risks in international trade relate to; Goods not matching the requirements of the order, goods which are unsatisfactory because they are of poor quality, poor value. The testing results of the defects in the chip processor and the conclusion are different. The evaluative defect is not clear about the object of comparison that is objective in standard and the measuring method is different from a common one. Any claims by Buyer of whatever nature arising under this contract shall be made by e-mail within three months after arrival of the goods at the destination specified in the Bills of Lading. Full particulars of such claim shall be made in writing, and forwarded by registered mail to Seller within 30 days after claim notice. Buyer must submit with particulars authorized Surveyor's Reports when the quality or quantity of the goods delivered is in dispute. CISG should be applicable The applicable laws to find the facts of this case and to provide legal interpretation and construction, including the burden of proof, good faith principle and consideration of equity, shall be the body of CISG. CISG 38(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances CISG 39(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. CASE: Performance of the Sales Contract Summary of Relief Sought 1. The Respondent shall pay to the Claimant the sum ofUS$425,730 with interest thereon from March 9, 2010 . 2. The Respondent shall compensate the Claimant for lost profits arising from the need to re-allocate Claimant's purchase of the subject goods. Reasons for Award 1. Basic Facts relating to the Disputes According to Claimant's Exhibits A and B and Respondent's Exhibit 4, the Claimant and the Respondent have agreed that all disputes in connection with the subject sales contracts shall be finally settled by arbitration before the KCAB in accordance with the Arbitration Rules. The principal issues of this case whether the Sales Contract has indeed been established and if so, who shall be liable for the consequences in the event of failure to perform the Sales Contract. The scope of such liability and quantum of damages . The Respondent's act to have returned the Sales Contract via facsimile stating thereon "Not Confirm", an ambiguous expression, as a firm expression to reject the modified offer by the Claimant in the international transaction. The Respondent may not avoid the responsibility arising out of its non-performance of the Sales Contract. The compensation of actual damages, it is not necessarily true that there shall be no causal link between any damages incurred by the Claimant. The Tribunal determines that the Sales Contract has indeed been established. Both parties were duly obliged to faithfully perform their respective contractual obligations. The Respondent, having been alerted to the seriousness of its liability which may be triggered due to its non-performance of the Sales Contract, attempted to find a way out for indulgence. This award is prepared by the Tribunal in both the Korean and English language so that both versions may have force as the duly authenticated award. There should be any discrepancy of this award, the Korean version shall prevail as a matter of the laws of Korea. The judgment upon this award may be entered in any court having proper jurisdiction. =Arbitration Under Investment Treaties= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. fywj0juk5urhozauyq0oklv5hgpopky 36427 36426 2026-08-12T23:06:04Z Bykim2012 1312 /* 소개 */ 36427 wikitext text/x-wiki =도입= 1. 분쟁은 피하기 어렵다 * 사회와 비즈니스가 복잡해지면서 이해관계와 사실관계에 대한 시각 차이로 갈등과 분쟁이 발생한다. * 소송은 대표적인 해결 방법이지만 항소·상고까지 가면 수년이 걸리고 경제적·감정적 비용도 크다. 2. 중재란 무엇인가 * 법적 의미의 중재는 당사자 간 합의에 따라 법원의 재판 대신 중재인의 판정으로 분쟁을 해결하는 절차다. * 일상적으로 말하는 ‘중재’와 달리, 법적 중재의 판정은 법적 구속력을 가진다. * 협상이나 알선은 당사자의 합의에 의존하지만, 중재판정은 법적 효력이 있다는 점이 다르다. 3. 중재의 주요 장점 * 당사자 자율성: 중재인, 언어, 준거법, 절차 등을 당사자의 합의에 따라 정할 수 있다. * 신속성: 일반적인 소송과 달리 원칙적으로 단심으로 끝나므로 시간과 비용을 줄일 수 있다. * 전문성: 당사자가 해당 분야의 전문지식과 경험을 가진 중재인을 직접 선정할 수 있다. * 비공개성: 중재는 원칙적으로 비공개이므로 기업의 영업비밀이나 평판 보호에 유리하다. 4. 국제분쟁에서 특히 유용하다 * 한국 기업이 해외 기업과 분쟁을 벌일 경우 상대국 법원에서 현지 언어와 법률에 따라 소송하는 것은 큰 부담이 될 수 있다. * 국제중재를 이용하면 상대방 국가의 법원에서 직접 소송하는 부담을 줄일 수 있다. * 중재판정은 뉴욕협약에 따라 다수 국가에서 승인·집행될 수 있어 국제거래에서 중요한 장점이 있다. 5. 가장 중요한 전제: 중재합의 * 중재를 이용하려면 당사자 간 중재합의가 반드시 필요하다. * 일반적으로 계약서의 '''중재조항(arbitration clause)'''으로 미리 정해 둔다. * 사전에 중재합의가 없다면 일방적으로 중재절차를 시작하기 어렵다. * 따라서 국제거래 계약을 체결할 때 분쟁해결 방법을 미리 정하는 것이 중요하다. 6. 중소기업·소상공인이 특히 주의할 점 * 실제 국제분쟁 상담 사례에서는 계약서 자체가 없거나 분쟁해결조항이 빠져 있는 경우가 적지 않다. * 계약 체결 당시에는 거래를 빨리 시작하는 데 집중하기 쉽지만, 분쟁이 발생하면 이러한 준비 부족이 큰 위험으로 돌아올 수 있다. * 전문적인 계약 작성이 어렵다면 중재원이 제공하는 표준 중재조항을 활용하는 것이 권장된다. =국제중재 신청부터 중재인 선정= 1. 중재 신청의 기본 조건 * 당사자 간에 유효한 중재조항 또는 중재합의가 있어야 한다. * 요건을 갖추면 중재기관에 사건을 신청할 수 있다. 2. 중재신청서 작성 * 중재신청서에는 신청 취지, 신청 이유, 증거자료, 상대방의 주소와 연락처 등을 기재한다. * 중재인은 사건을 직접 경험한 사람이 아니므로, 신청서가 사건에 대한 첫인상이 된다. * 따라서 객관적이고 구체적으로 사실관계를 설명하고, 청구 내용과 금액을 명확하게 제시해야 한다. * 특히 신청 이유는 분쟁의 발생 경위와 청구 원인을 설명하는 핵심 부분이다. * 원칙적으로 인쇄본을 제출하며, 단독 중재인 사건이라면 중재기관·피신청인·신청인용 등 필요한 부수를 제출한다. 3. 중재 언어 * 국제중재에서는 상대방이 외국 기업인 경우가 많아 영어가 중재 언어로 사용될 가능성이 높다. * 그러나 중재합의나 당사자 간 사후 합의에 따라 한국어를 사용할 수도 있다. * 중재 언어가 정해져 있지 않다면 중재인이 계약서의 언어, 당사자의 언어 능력, 사건의 상황 등을 고려해 결정할 수 있다. * 상대방의 대표자나 임직원이 한국인이거나 한국 변호사를 선임한 경우에는 국제중재라도 한국어로 진행될 가능성이 있다. 4. 중재 비용 * 중재 신청 시에는 법원 소송의 인지대와 유사한 신청요금이 발생한다. * 대한상사중재원의 경우 영상에서 설명한 기준으로 신청요금은 부가가치세 포함 110만 원이다. * 그 밖에 중재 비용은 크게 다음 세 가지로 구성된다. * 관리요금: 중재기관의 사건 관리·행정 비용 * 중재인 수당: 중재인의 업무와 시간에 대한 보수 * 중재인 경비: 회의·송달·출장·항공료·숙박료 등 실제 발생 비용 * 일반적으로 분쟁금액이 클수록 중재 비용도 증가한다. * 국제중재에서는 통상 신청인과 피신청인이 중재 비용을 균분하여 납부하도록 한다. * 피신청인이 자신의 비용을 내지 않으면 신청인이 부족분을 추가 납부하도록 요청받을 수 있으며, 비용이 모두 납부되어야 다음 절차가 진행될 수 있다. 5. 중재인 선정 * 비용 납부가 완료되면 분쟁을 판단할 중재인 선정 단계로 넘어간다. * 중재판정은 원칙적으로 단심이므로 중재인의 전문성·공정성이 매우 중요하다. * 당사자들이 합의하여 중재인을 선정할 수 있고, 합의가 되지 않으면 중재기관이 선정한다. * 선정 과정에서는 분쟁금액, 사건의 복잡성, 당사자의 국적 및 사건 분야 등을 고려한다. * 일반적으로 분쟁금액이 30억 원을 초과하면 3인 중재판정부, 그 이하이고 사실관계가 비교적 단순하면 단독 중재인으로 진행되는 경우가 많다. =국제중재의 활용 분야와 주의사항= 1. 국제중재의 활용 분야 * 형사사건이나 이혼 등 일부 사건을 제외하면 국제중재는 대부분의 민사·상사 분야에서 활용할 수 있다. * 대한상사중재원에서는 특히 건설·무역·상거래 분쟁이 큰 비중을 차지한다. * 대표적인 무역분쟁으로는 품질 불량, 납기 지연, 계약조건 불이행, 대금 미지급 등이 있다. * 최근에는 IT, 지식재산권, 엔터테인먼트 등으로 활용 분야가 확대되고 있다. 2. 중재의 장점: 전문 중재인 선택 * 중재의 중요한 장점은 사건의 성격과 전문 분야에 맞는 중재인을 선정할 수 있다는 점이다. * 대한상사중재원은 국내·국제 사건을 합쳐 약 1,500명의 중재인 풀을 운영한다고 설명한다. * 특히 중소기업에게는 상대적으로 작은 분쟁금액이라도 사업의 존립을 위협할 수 있으므로, 신속하고 효율적인 분쟁 해결이 중요하다. * 영상에서는 분쟁금액이 2억 원 미만인 사건의 신청요금 면제 및 신속절차 적용을 주요 지원책으로 소개한다. 3. 국제중재를 당했을 때도 적극적으로 대응해야 한다 * 국제중재는 신청하는 경우뿐 아니라 상대방으로부터 피신청인이 되는 경우에도 적극적인 대응이 필요하다. * 그 이유는 국제중재 판정의 국제적인 집행력이 매우 강하기 때문이다. * 뉴욕협약에 가입한 국가들은 일정한 요건 아래 외국 중재판정의 승인과 집행을 인정한다. * 따라서 해외 기업이 제기한 중재를 무시하면, 나중에 한국 법원에서 해당 외국 중재판정의 승인·집행 절차를 밟게 될 수 있다. * 중재는 일반적으로 단심제이므로 처음부터 적극적으로 방어하는 것이 중요하다. 4. 중재조항을 정확하게 작성해야 한다 * 국제중재를 이용하려면 계약서에 유효하고 명확한 중재조항을 두어야 한다. * 잘못된 중재조항은 중재기관이 사건을 접수하지 못하게 하거나, 관할권 다툼 또는 중재판정 취소 문제로 이어질 수 있다. * 특히 기존 계약서의 중재조항을 아무런 검토 없이 복사하거나, 내용을 임의로 변형하는 것은 위험하다. 5. 잘못된 중재조항의 대표적인 사례 * 복수의 중재기관을 동시에 지정 * 예: 대한상사중재원 또는 중국 CIETAC에서 분쟁을 해결한다고 규정. * 어느 기관이 관할권을 갖는지 불명확해져 관할권 분쟁이 발생할 수 있다. * 존재하지 않는 중재기관을 지정 * 실제 존재하지 않는 기관이나 잘못된 기관 명칭을 사용하는 경우 중재 자체가 어려워질 수 있다. * 하이브리드 중재조항 * 예: SIAC 규칙에 따라 서울의 대한상사중재원에서 중재한다고 규정. * 한 기관의 규칙과 다른 기관을 결합하면 양 기관 모두 사건을 정상적으로 처리하지 못할 수 있다. 6. 중소기업에 대한 지원 * 국제중재는 법률적 전문성이 필요한 경우가 많아 변호사 등 전문가의 도움이 필요할 수 있다. * 그러나 중소기업에는 변호사 선임 비용이 부담이 될 수 있다. * 중소기업중앙회와 대한상사중재원의 협약을 통한 지원가 있다. * 국제중재 사건의 대리인 선임 비용 일부를 지원받을 수 있으며, 변호사를 선임하지 않은 경우에도 무료 법률상담 지원을 받을 수 있다. =소개= 본 세션은 해당 프로그램의 전반적인 소개 시간입니다. "국제 상사 중재"를 정의하고 중재 기관, 중재인, 변호사 등 세 가지 핵심 구성 요소를 설명합니다. 대체 분쟁 해결(ADR) 메커니즘을 개괄적으로 소개한 후, 한국과 관련된 국제 중재 사례의 역사적 개요를 제공합니다. [국제상사중재의 현재와 미래: 예비법조인을 위한 조망] <국제상사중재란?> * 중재 * 상사 * 국제 <중재(Arbitration)> * Why not international litigation? neutrality, expertise, confidentiality, time, enforcement, cost(?) * ADR * Mediation * Expertise * Dispute Boards ((DRB, DAB, CDB) -> Implications for law students? <상사중재(Commercial Arbitration)> * broad concept of "commercial" * public international arena * investment arbitration * trade (WTO or FTA) <국제상사중재(International Commercial Arbitration)> * domestic v. international: transnational * at least one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Korea; or * the place of arbitration set out under an arbitration agreement is in any State other than Korea(KCAB International Arbitration Rules as amended 2011) * ICC Arbitration Rules (as amended 2011) <국제상사중재기관(International Arbitral Institutions)> * ICC * AAA, LCIA, * SIAC, HKIAC * KCAB: New International Arbitration Rules -> battles for jurisdiction <국제중재사건(International Arbitration Cases)> * 아시아 및 한국 관련 사건(BKL 표 1&2 참조) * 한국기업의 중재관 변화 * 외국 대기업 & 다국적 기업의 중재 선호 * Seoul for an Asian arbitration hub (the third hub?): 한국기업 무관련 사건 <국제중재 변호사(International Arbitration Lawyers)> * up to 10 years ago * 2000 ~ 2010 * post 2010 * The first generation & after * 로펌 별 특성 (2, 4, 6, …) * 한국 변호사 v. 외국 변호사 (외국 로펌, 중재인 보조, 중재기관) * 미래의 바람직한 모델 * How to become ….? 기존 모델 탐구 plus <국제중재인 (International Arbitrator)> * BKL 표 2 참조(Nationality of ICC Arbitrators) * Prior professions? Counsel, Professors, or Judges * Requirements for good international arbitrators? - known to the international arbitration community - knowledge in international dispute settlement - good reputation as … - effective communication skill - effective drafting skill - getting on the flowing (24 hours service?) - good human being (social skills?) egotiation is a fundamental way of settling disputes between parties. If those disputes are successfully settled between the parties concerned, then there would be no involvement of third parties. Moreover, negotiation is a basic element of mediations, as the latter is understood as 'facilitated negotiation.' Successful mediators should understand and use skillfully basic principles of negotiations. Students will learn basic principles of successful negotiations such as BATNA and interests. [Basic Successful Negotiators] Professor Nohyoung Park Korea University Dispute Resolution Institute of Korea (DRIK) (wtopark@korea.ac.kr) A forum of Dispute Settlements Court proceedings ADR (NOT 'Alternative' BUT 'Appropriate' Dispute Resolution) Negotiation Mediation Arbitration Find and advise merits and demerits for the case concerned Mediation A facilitated negotiation An extended negotiation Lawyer as Negotiators Mediators Representatives in mediations Negotiation Negotium (Latin) - Not leisure but business Negociacion (French) - Dealing with people 협상: cooperate + understand the other people Negotiation Conceptual Analysis - More than two parties - Done by natural persons Conflicting aims and interests Towards a settlement Voluntary process of communication Recurring process Expecting 'give and take' How to be a successful negotiator? What elements necessary? Elements of successful negotiations The Common Dilemma Hard bargainers defeat easily soft bargainers. - "Have to talk" "Don't have to talk" - Relationship over Substance Substance over relationship - Open with a reasonable position Open with an extreme position - Concede generously Concede stubbornly - "Will"/offers "Won't"/threats Common errors for ordinary negotiators - Ignoring ALTERNATIVES - Focusing on positions, ignoring INTERESTS - Ignoring objective STANDARDS - Limiting creative OPTIONS - Placing COMMITMENT before listening - One-way COMMUNICATION - Assuming a choice: RELATIONSHIP or substance A Seven Element Framework for Successful Negotiations No agreement, OR an agreement that: 1. Is better than our BATNA 2. Satisfies INTERESTS: - Ours, Well - Theirs, at least acceptably - Others, at least tolerably 3. Is among the best of many OPTIONS No agreement, OR an agreement that: 4. Uses objective STANDARDS for fair and acceptable solutions 5. Contains COMMITMENTS that are mutually understood and operational so as to procedure no dispute 6. Is reached efficiently with effective COMMUNICATIONS 7. Builds a good working RELATIONSHIP among the parties BATNA If I cannot make a deal in this negotiation, what can I do instead? Then, think about "BATNA" (Best Alternative to a Negotiated Agreement)! Examples: used book sale negotiating with A… INTERESTS What do I want/need? (position) Then, ask why? (interests) Examples: Negotiating with a law firm for a job OPTIONS Things I can do with the other person/people at the table Examples: used book sale negotiating with A - Sell the books to A for $300 - STANDARDS Use objective criteria/standards to decide whether an option/solution is fair or not Example: used book sale negotiating with A Some Strategic Guidelines I Clarify INTERESTS, not positions - Ask "Why?", "What else?", "In What order of importance?" Share some of your interests with them Share and test your understanding of theirs Clarify INTERESTS, not positions Sinai Peninsula (1967-82) Part of Egypt since the end of World War I Scene of heavy fighting during the Suez Crisis (1956), the Six-Day War (1967) and the Yom Kippur War (1973) and was occupied by Israel from 1967 until 1982 Clarify INTERESTS, not positions Sinai Peninsula - Egypt v. Israel Positions Egypt: Return to her Israel: No return to Egypt Interests: Egypt: Israel: Mediation class consists of lecture on basic mediation theory and a simulation. The main subjects include definition of mediation, role of mediators, modes of mediation, mediation process and basic mediation skills. A mediation simulation will be given by group for exercise and feedback on the activities will be provided. Mediation Table of Contents Defining mediation Four Models of Mediation Mediator's Functions Mediation Process Mediator's Role in the Mediation Process Mediator's Opening Statement Focus of Party Statements Identifying the Areas of Agreement Separate Meetings Dealing with Impasses Closing Statements and Termination Avoiding Mediator Traps Defining Mediation The process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Folberg and Taylor Mediation: A Comprensive Guide to Resolving Disputes Without Litigation, San Francisco, CA; Jossey-Bass, 1984. Defining Mediation WHAT IS NOT Counseling Arbitration Litigation Mediation WHAT IT IS Decision-Making Third Party Assistance Process-based Consensual outcome Mediation => a process of facilitated decision-making or facilitated negotiation COMPETING VALUES LITIGATION Rights Due Process Formality Normative Past Facts Public Coercive Adversarial MEDIATION Interests Participation Informality Subjective Future Relations Private Consensual Collaborative Boulle & Wade, Mediation Workshop (2010) Defining Mediation Strengths Shortcomings Prevents escalation No guaranteed outcome Focuses on interests Behind closed doors Highly participatory Required resources Flexibile outcomes Inadequate safeguards Preserves relationships Unfair outcomes Cost effective Four Models of Mediation Settlement model Facilitative model Therapeutic model Evaluative model Mediator's Functions 1. Creating favorable conditions for the parties Procedural framework; Physical environment; Emotional environment 2. Assisting the parties to communicate Listening, Reframing, Questioning, Summarizing 3. Facilitating the parties' negotiations By focusing on the parties' interests and by facilitating a negotiation process 4. Encouraging settlement By questioning the parties about their realistic options away from mediation Mediation Triangles DEFINING THE PROBLEM EXPLORING SOLUTIONS Essential Features Of International Arbitration Essential Features ofInternational Arbitration In this session of Essential Features of International Arbitration, one of the key elements of international arbitration will be discussed, namely the nature of and concepts found in arbitration clauses. We will discuss I) the agreement to arbitrate and jurisdictional issues arising out of pathological arbitration clauses; ti) place of arbitration and procedural governing law in international arbitration; iii) ad hoc arbitration vs. institution•al arbitration; and iv) other important concepts found in arbitration clauses such as possibilities of interim measures. I. Ad-hoc v. Institutional Arbitration II. Arbitration Clause III. Governing Law I. Ad-Hoc v. Institutional Arbitration 1. Comparisons Ad-Hoc Full party autonomy UNCITRAL Rules Suitable for dispute involving State or large stake Uncertainty and delay Need ad-hoc expert as arbitrator / appointing authority Institutional Choice of established arbitration rules Administered & supervised by qualified staffs Preventing delay in case one party does not cooperate Institutional fee Disadvantageous to Respondent 2. Arbitration Institutions Arbitration institutions popular among Asian corporations: LCIA, ICC, lCAA(AAA), ICSID, KCAB, SIAC, HKIAC II. Arbitration Clause 1. Sample Arbitration Clause "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of XXXX by one or more arbitrators appointed in accordance with the said Rules" 2. General Elements Agreement to Arbitrate Rules / Institution Seat of Arbitration Appointment of Arbitrator Language Governing Law 3. Agreement to Arbitrate "Final and Binding" Optional clause: court or arbitration Allocation of issues to be reviewed by court or by arbitration possible? 4. Place of Arbitration "Is the place of arbitration arbitration-friendly?" [Lex Arbitri] Local courts may intervene in arbitration proceedings Local courts have jurisdiction over cancellation of arbitral awards A party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards A country whose laws are supportive of arbitration A country whose courts have a track record of issuing unbiased decisions that are supportive of the arbitral process Neutrality Facilities Proximity of witnesses and eVidence Familiarity with language and culture Arbitrators Places of arbitration to be considered: Seoul, Tokyo, Hong Kong, Singapore, Dubai, Zurich, Geneva, London, Paris 5. Appointment of Arbitrators Probably the single most important decision in a case Once constituted, Arbitral Tribunal controls most aspects of the arbitration Needs to be objective, competent and unbiased Sole or three arbitrators (1) Sole Arbitrator may be less expensive may take less time to deliberate the case may be more appropriate for smaller cases mostly appointed by a third party appointing authority (2) Three Arbitrators relatively more reliable for complex issues of fact and law may ensure better quality of proceedings reduces risk of irrational or unfair results parties appoint the arbitrators 6. Qualification of Arbitrator Lawyer or Industry expert? Relevant to predictability of results Various issues (such as interpretation of contract & discovery) may differ by the qualification of arbitrator Stringent qualification may delay the procedures 7. Language May be agreed in the arbitration clause Default language: languages in the contract Two languages? - cause delay & cost Interpretation: Necessary for witnesses who use different languages 8. Fast Track Fast Track/Time Limits "The Arbitral Tribunal shall render its final award within six (6) months of the constitution of the tribunal, subject to extension by the tribunal for extraordinary circumstances in the interests of justice and efficiency" • SIAC, ICDR - Fast Track Arbitration • ICC Rule Article 32(1) - The parties may agree to shorten the various time limits … Article 32(2) - The Court, on its own initiative, may extend any time limit which has been modified pursuant to Article 32(1) if it decides tat it is necessary to do so … 9. Allocation of Costs "The costs of the arbitration, including administrative costs and arbitrators' fees, shall be borne by the party to the arbitration ordered by the Tribunal to pay all or a part of the such costs" " "The necessary costs and expenses including but not limited to attorney fees and costs for experts … shall be borne by the party … " Arbitration in the US - it is not clear whether allocation of attorney fees can be borne by the losing party. 10. Interim Measures "The arbitrators shall have authority to take whatever interim measures they deemed necessary, including injunctive relief, orders of specific performance and measures for the protection or conservation of property. The Parties further expressly agree that any Party may seek interim relief in aid of the arbitration from a court of competent jurisdiction. Such request for interim measures by a Party to a court shall not be deemed incompatible with the Parties' agreement to arbitrate or as a waiver of that agreement." (1) Recent Trends Two types of interim measures • After tribunal is formed • Before tribunal is formed: "emergency interim measures" ICC: Pre-Arbitral Referee Procedure • Agreement to use this procedure must be in writing- separate from agreement to use ICC rules of arbitration • Order issued within 30 days • Referee does not pre-judge substance of case • ICC rules for pre-arbitral referee procedure are much more detailed 11. AAA/ICDR: Emergency Measures of Protection Unlike ICC, AAAjICDR rules enable a party to use emergency measures without a separate agreement Upon request of a party, emergency arbitrator appointed in one business day, schedule for consideration of matters made in two days No power after the Tribunal is formed Emergency measures apply to arbitrations conducted under arbitration clauses entered into on or after May 1, 2006 May conduct hearing via telephone or decide on written submissions 12. SIAC Emergency Arbitrator Very similar to AAA/ICDR emergency measures. Do not need separate agreement to use the emergency measures Upon request and approval, emergency arbitrator appointed within one business day Schedule established within two business days Like the AAA, can conduct telephonic hearing or decide on written submissions Key difference from ICC, AAA: Emergency order ceases to be binding if tribunal is not constituted within 90 days of the order, the tribunal makes a final award, or if the claim is withdrawn III. Governing Law Governing Law refers to the substantive law governing the contract - Not referring to procedural law governing the arbitration proceeding - Seat of arbitration determines the procedural law "Minimum Contacts" NOT required when choosing substantive law when dispute is to be resolved by international arbitration CIVIL LAW vs. COMMON LAW Is there a difference in which substantive law you select? Affects Appointment of Arbitrator Affects Arbitration Procedure Affects Scope of Discovery/ Document Production Affects Contract Interpretation Common Law Approach to Contract Interpretation First, give meaning to the plain language of the text. - Look within the four corners of the document and give effect to the written intent of the parties. Second, review extrinsic evidence only when language is unclear. Civil Law Approach to Contract Interpretation Not strictly bound by the language of the document Whether there was a meeting of the minds Consider the totality of the circumstances Questions & Discussion =Laws And Rules Of Arbitration= This presentation for the KCAB International Arbitration Lecture will focus, as below, on the interplay of the relevant laws and arbitration rules which govern international arbitration proceedings. Firstly, the New York Convention is the most important and crucial law which is a cornerstone of international arbitration. Second, procedural law also known as lex arbitri is the law that governs the procedures of the arbitration proceeding. Third, arbitration institutional rules supplement lex arbitri as to the procedures of arbitration proceedings. Lastly, the next "type" of rules which are important in international arbitration are "soft rules." Rules and Laws of International Commercial Arbitration KCAB Lecture Course by Eun Young Park KIM & CHANG February 22,2011 Introduction Various rules, laws, and treaties are relevant in conducting an effective arbitration. The four major areas: 1. New York Convention 2. Substantive Law 3. " Procedural Law," "lex arbitri" 4. Rules of Arbitration Institutional ru les Ad hoc rules Sample Arbitration Clause " Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be settled in accordance with the International Rules of Arbitration of the Korean Commercial Arbitration Board. The arbitration proceeding shall be conducted in Seoul, Korea." New York Convention - What is it? Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") Multi-lateral treaty adopted by the UN in 1958 Cornerstone of international arbitration New York Convention - Why is it important? Signatories must recognize awards and enforce as binding Currently, 145 countries are signatories to the Convention Korea has been a signatory state since 1973 No need for long litigation process to have the arbitral award recognized and enforced Only need authenticated arbitral award (or copy) and translation (if required) Important to consider whether country where award sought to be enforced is signatory Important to consider when deciding the "seat of arbitration" or "place of arbitration" Enforcing court's country may limit reciprocity under the New York Convention to signatories only (e.g. Korea) Practice Parties to the New York Convention Currently 145 countries New York Convention The New York Convention - Promoting Enforcement Does not allow review on the merits of the award Provides an exhaustive list for refusal - only 7 grounds to refuse Enforcing court has discretion not to refuse. Grounds for Refusal under the NY Convention - V(1)(a) Incapacity I Invalid Arbitration Agreement "The parties to the agreement … were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected to it or, failing any indication thereon, under the law of the country where the award was made." Grounds for Refusal under the NY Convention - V(1)(b) No proper notice I lack of due process "The parties against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case." Grounds for Refusal under the NY Convention - V(1)(c) Excess of Jurisdiction "The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration." Grounds for Refusal under the NY Convention - V(1)(d) Composition of Tribunal/Procedural defects "The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place." Grounds for Refusal under the NY Convention V(1)(e) Award Not Binding / Set aside "The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." Grounds for Refusal under the NY Convention V(2)(a) Arbitrability "The subject matter of the difference is not capable of settlement by arbitration under the law of that country." Grounds for Refusal under the NY Convention V(2)(b) Public Policy "The recognition or enforcement of the award would be contrary to the public policy of that country," Substantive Law - What is this? Refers to the law which governs the merits of the case Also referred to as "the governing law," "applicable law" Common for parties to agree ahead of time on substantive law in the contract If parties are unable to agree, often rules will states that the tribunal will determine the law which it deems the most appropriate to the case. Substantive Law - Why is this important? Usually contracts include a governing law clause, e.g. - "The governing law of this contract shall be the laws of Korea" or "This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea." Thus, for the above, merits of the case must be decided under Korean law Explain the applicable Korean law to the arbitral tribunal Procedural Law - What is this? Also referred to as "lex arbitri" National law that governs the procedure of arbitration Example - The Arbitration Act of Korea UNCITRAL Model Law on International Commercial Arbitration ("UNCITRAL Model Law") Proposed for adoption and only has actual force if sovereign adopts it national law. However, even if not adopted many countries use the UNCITRAL Model Law as foundation to develop their national arbitration law Procedural Law - Why is it important? Content of the procedu I law may add alia: Whether parties will have access to interim measures during the arbitration The extent of local court intervention and interruption The availability of local courts to support or supervise the arbitration Challenges to and duties of arbitrators Ability of tribunal to decide its own jurisdiction There are countries arbitration friendly and non-arbitration friendly Procedural laws of arbitration friendly countries will reflect this attitude Will allow less local court intervention or interruption Will provide local court's assistance in providing interim relief during arbitration proceedings Will allow tribunal to determine its own jurisdiction Thus, important to consider when deciding seat of arbitration since the seat's procedural law will govern. Countries not signatories to New York Convention- likely not arbitration friendly Ex - Example of difficult arbitration seat? Korea is arbitration friendly Signatory to NY Convention Used UNCITRAL Model Law as foundation for its Arbitration Act Arbitration Rules: Institutional Rules- What is this? Institutions KCAB LCIA ICC SIAC HKIAC Each institution publishes its own set of rules which will govern the procedure of arbitrations administered their institution Supplements the procedural law Arbitration Rules: Institutional Rules- What is this? Institutional rules will generally address, inter alia: Notice of arbitration/Request for Arbitration and its filing Response and filing Appointment of arbitrators Challenges to arbitrators Expedited relief or interim measures Submissions by the parties Hearings Witnesses Expert witnesses Awards and review of awards by the institution Institutional Rules - Why is it important? UNCITRAL Arbitration adopted in 1976 Served as foundation and model for many arbitral institutions for drafting rules Important since procedures can vary slightly and parties can choose which procedures they would like to follow. Also, at enforcement stage, arbitrations under institutional rules will hold up stronger when party tries to attack sufficiency of the proceedings. Arbitration rules gives deference to parties and generally act as default when parties are unable to agree (with few exceptions). Rules: Ad-hoc Rules- Why is this important? • Ad-hoc Arbitration Definition: Arbitration conducted under rules agreed by parties themselves For Ad-hoc arbitrations, parties can apply any rules they agree to. Can be one of the institutional rules Can be UNCITRAL Arbitration Rules Can establish their own rules of procedure Pros: Flexibility to needs of parties, "tailor-made" Cons: Requires full cooperation by parties since no administering body so can force delay if party wants, need to devise fair, equal, and efficient rules. Conclusion Knowing interplay and relevance of the various laws and rules are important at the outset New York Convention - Party or Not? Substantive Law of the Contract Procedural Law of the Seat of Arbitration • UNCITRAL Model Law a basis for the national law? Rules of Arbitration • Institution or Ad-hoc? • UNCITRAL Arbitration Rules =Composition Of The Arbitral Tribunal= In this session, the rules and practices regarding how to compose the arbitration tribunal will be explored and discussed. While the most major rules have similarities, respective rules pose particulars in this regard. Involvements by and interactions with arbitration institutions will be another topic to be dis•cussed. Further, considering factors, strategies and plans when composing the tribunal will be discussed as well. "Selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award itself)!" Why? Party autonomy - Ability to choose the number (e.g., 1,3) of arbitrators - Can control who gets to decide the dispute A poorly constituted arbitral tribunal will result in a poor decision - E.g., unqualified or biased arbitrators - less-committed arbitrators 1. Factors to consider when selecting an arbitral tribunal Is the claim large or small? Cost considerations Time considerations Is it a legal problem or does the dispute turn mostly on the facts? Is the governing law civil law or common law? Is a particular expertise required in a certain field? Is the candidate available? Is view of the candidate conflicting with positions? 2. Drafting of the arbitration agreement This is the first and most important opportunity a party has to shape the arbitral tribunal Best time to discuss and agree since parties are not fighting (i.e., no dispute has arisen yet; impossible to agree anything after dispute) Ability to tailor the arbitral tribunal to fit the type of anticipated disputes May choose the institutional rules (e.g., ICC, LCIA, KCAB etc.), language of arbitration, number of arbitrators etc. 3. Number of arbitrators One or three Depends on the complexity of the case Also has an effect on costs (more arbitrators = more expenses) a. One Arbitrator - Advantages: No need to deliberate with other arbitrators = quicker decisions One arbitrator is cheaper than three Hearings and appointments can be more easily arranged Suitable for small claim cases Disadvantages Not suitable for complex or high claim cases If the sole arbitrator is unfit, this may lead to a very poor award Conventional wisdom 3. Number of arbitrators b. Three Arbitrators - Advantages: Parties may be able to choose an arbitrator of their own - Gives the parties a feeling of confidence in the arbitral tribunal 3 arbitrators will allow the issues to be deliberated in great detail "quality of justice" less likely to be subject to predispositions of a single arbitrator Modern preference is to choose 3 Suitable for large, complex cases Disadvantages: Not suitable for small claims More expensive More time consuming/availability concern 4. Methods of appointing arbitrators a. By agreement of the parties - very common in commercial arbitration agreements - allows the party to choose its own arbitrator, rather than by a 3rd party (e.g., arbitral institution) - may interview and meet with potential arbitrators b. List method (AAA/KCAB domestic rules) - Each party nominates three or more arbitrators on a list - The list is then exchanged with the other party - Each party then ranks the potential arbitrators in order of preference - Downside = other party may be able to reject candidates that might be most suitable as arbitrator for the case c. Default appointments (i.e., arbitral institutions) - Allowing arbitral institutions to choose the arbitrators - Institutions are highly experienced and get offer value-added services in finding suitable candidates - Many arbitral institutions are willing (for a fee) to offer their services (appointing authority/administration services) even when the arbitration is not conducted under their own rules. 5. Qualifications of arbitrators Special background or expertise If dispute is very specific to certain field, it may be advantageous to limit candidates who have expertise in such fields E.g., "all candidates must have a degree in rocket science" Language If dispute involves parties who do not speak the same language, it may be advantageous to find an arbitrator who is fluent in both languages Minimum requirement = must have a working knowledge of the language in which the arbitration is to take place Experience The more experienced an arbitrator is, the better However, can be more expensive (critique: Arbitration Mafia) Nationality Usual practice is to appoint an arbitrator from a neutral third party (either as sole arbitrator or as presiding arbitrator) - ICC: third party national as a sole arbitrator/chairman - KCAB: possible upon party's request (domestic rule v int'l rule) Need to be careful! Too many or too specific qualifications may make it impossible to find suitable arbitrators E.g., "Sole arbitrator must be (i) fluent in Korean, English and Swahili, (i) have a degree in neuroscience, and (iii) has worked in the nanotechnology field for at least the past 15 years 6. Comparison of Arbitral Institutional Rules a. Number of arbitrators - default clauses - ICC Rules (Art. 8) Absent an agreement between the parties, the number of arbitrators shall be 1, unless the Court determines that the case warrants the appointment of 3 arbitrators. KCAB International Rules (Art. 11) Absent an agreement between the parties, the Secretariat will appoint 1 arbitrator, unless a party petitions the secretariat to appoint 3. If petition is brought forth, Secretariat must consider factors such as size, complexity of dispute, whether 3 arbitrators should be appointed, and notify the parties. Compare - KAA: 3 (Art. 11) - KCAB domestic rules: 1 or 3 (Art.23) 6. Comparison of Arbitral Institutional Rules - UNCITRAL Rules (Art. 5) If the parties have not agreed on the number of arbitrators, and within 30 days of receipt by respondent of the notice of arbitration the parties have not agreed to 1 arbitrator, then 3 arbitrators will be appointed. b. Appointment of Arbitrators - ICC Rules (Art. 8) 1 arbitrator: Parties can jointly nominate an arbitrator; if parties fail to do so within 30 days of receipt of Request for Arbitration by other party (or any additional time granted by the Secretariat) the sole arbitrator shall be appointed by the Court. 3 arbitrators: Each party can choose "their" arbitrator, and the presiding arbitrator will be chosen by the Court, unless the parties have agreed upon a different appointment mechanism. - If a party fails to nominate its arbitrator, such arbitrator will be appointed by the Court (therefore it is possible for the Court to nominate none, 1,2, or all 3 arbitrators) - KCAB International Rules (Art. 12) 1 arbitrator: same as ICC Rules 3 arbitrator: Similar to ICC Rules- each party can choose "their" arbitrator, and if a party fails to do so, Secretariat will choose one for them. However, unlike ICC Rules, the two appointed arbitrators may appoint the 3rd (i.e., presiding arbitrator); if the two arbitrators fail to appoint the 3rd arbitrator within 30 days, then the Secretariat shall appoint the 3rd arbitrator Compare KCAB domestic rules (Art. 21) By agreement List approach (preference scored): 10 candidates provided, 5 out of 10 for candidates for chairman - UNCITRAL Rules (Art. 6) Unlike ICC and KCAB, UNCITRAL does not appoint arbitrators. UNCITRAL is NOT an arbitration institution. If the parties have not agreed on who is to be appointed as arbitrator(s) and on who is to act as the appointing authority, either party can request the Secretary-General of the Permanent Court of Arbitration at The Hague to decide an appointing authority - In practice, this can cause delays. Therefore, drafters should ensure that appointing authority is expressly provided for No ad hoc arbitration without compelling reasons! 1 arbitrator: unless agreed to by the parties, and if parties have not agreed upon a sole arbitrator within 30 days of receipt by all the parties of a proposal for appointment of a sole arbitrator, the appointing authority will appoint the sole arbitrator - List procedure: at least 3 candidates be provided for parties' consultation 6. Comparison of Arbitral Institutional Rules 3 arbitrators: similar to KCAB Rules. Each party can "choose" their arbitrator, and the two appointed arbitrators may appoint the 3rd arbitrator. If either party fails to choose their arbitrator, the appointing authority will choose one for them. Same applies in the event the two arbitrators cannot agree on the 3rd arbitrator. c. Challenge and replacement of arbitrators - ICC Rules (Arts. 11, 12) A party may challenge an arbitrator for alleged lack of independence or otherwise Must challenge within 30 days of receipt of notification of appointment or confirmation of the arbitrator or when party was informed of the facts and circumstances on which the challenge is based ICC court has discretion to decide whether or not to follow the original nominating process KCAB International Rules (Arts. 13, 14) May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unlike ICC Rules, KCAB Rules give less time (i.e., 15 days as opposed to 30) KCAB Rules also allow the arbitrator to simply withdraw as an arbitrator (with or without agreement between the parties) if challenged, and such withdrawal does not imply acceptance of the validity of the grounds for the challenge Unlike ICC Rules, KCAB Rules state that replacement arbitrator must be chosen by same method applicable to the appointment of the arbitrator he or she is replacing. UNCITRAL Rules (Arts. 9~12) Re challenge- exact wording as KCAB Rules: May be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Challenge must also be brought within 15 days Re withdrawal - similar wording to KCAB Rules (i.e., arbitrator can withdraw or can be withdrawn by agreement between the parties) Re replacement - similar to KCAB Rules but appointing authority to make appointment d. Multiple Parties ICC Rules (Art. 10) Absent an agreement between the parties re joint nomination (including inability to reach agreement), the Court may appoint and shall designate the chairman KCAB International Rules (Art. 12(3)) Absent an agreement between the parties, the Secretariat will appoint 3 and designate one as the chairman. Conclusion Parties should consider how the arbitral tribunal will be formed very early on (i.e., during the drafting of the arbitration agreement) - Time will save headaches down the road! Important to choose the right arbitral institution. KCAB International Rules appear to be a good balance between ICC and UNCITRAL Rules. This is not surprising since KCAB has had the opportunity to review many rules and choose the "Best" provisions. =Jurisdiction And Powers Of The Arbitral Tribunal= 관할과 중재판정부의 권한 판단할 자격이 있는지? Competenz-Competenz, 준거법, 중재관할 Competence-Competence는 중재판정부 판단할 수 있는지 스스로 그런 힘을 가진다. 준거법 어떤 법을 적용하느냐에 따라 달라질 수 있는데 중재지 Seat of arbitration, hearing 장소 중재지 당사자가 정하지 않았을 때는 정할 수 있는 권한을 가진다 모든 절차를 쥐고 절차명령권(procedural order) 서증(documentary evidence)를 내라 명령을 할 수 있고 안내면 불리한 추론을 할 수 있다(adverse inference) 잠정처분(interim measure) =Statements Of Claim and Defense= Description Formulating and presenting a theory of the case; the relative importance of written submissions in arbitration compared to litigation; assembling and evaluating the evidence; deciding which evidence to use; how to compose the statement of facts; how to organize the legal arguments; the importance of considering the applicable law. Getting Started Minimum requirements for the Statement of Claim and Statement of Defense are in the applicable arbitration rules. The 2010 UNCITRAL Rules require the following for the Statement of Claim: UNCITRAL RULE 20(2) The statement of claim shall include the following particulars : The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. UNCITRAL RULE 20(4) The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them. But what about … Page limits? Font size? Formatting? Table of authorities? Citation rules? Table of exhibits? Schedules? What do the rules say about these? Statement of Defense UNCITRAL Rule 21(2) : The statement of defense shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. Counterclaim 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. 4. The provisions of article 20, paragraphs 2 to 4 shall apply to a counterclaim, a claim under article 4, paragraph (2)(f) and a claim relied on for the purpose of a set-off. Arbitration v. Litigation In ordinary litigation there are usually multiple hearings and multiple opportunities to present evidence. In international arbitration, there is often only one hearing- Parties often exchange only two or three sets of pleadings. The statement of claim is crucial. The Winning Argument Every lawyer strives for it: A seamless logical position Appeal to both reason and emotion Clear and convincing writing The power to persuade the tribunal Where do we get started? Case Theory Case theory operates on three levels legal theory factual theory; and Persuasive Theme Legal Theory Legal theory is why, as a matter of law, your client should prevail. Law school trains you for this. Factual Theory Factual theory is a construction of the facts of the case that explains what really happened and why: it includes an analysis of the good and bad facts in the case and how they can be harmonized in a way favorable to your cli ent. Law school does not train you for this . Persuasive Theme Persuasive theme is a way of looking at the case that makes the tribunal want to find in favor of your client. The persuasive theme gives the tribunal a reason why your client should prevail. Law school does not train you for this. Theory of the Case The lawyer is expected to be the client's champion-to speak forcefully and passionately on the client's behalf. But that doesn't mean that the lawyer is to follow the client's apparent interest blindly. Not every statement of fact by the client need be presumed accurate. Not every legal position or remedy sought by the client need be pursued. To do so would not serve the interests of the lawyer, client, or legal system well. The lawyer's zealous representation of the client requires advocacy at the highest level. Such advocacy, in turn. requires judgment and the wisdom of experience. And that experience teaches lawyers that in order to truly represent a client zealously and well, it is necessary to look behind client statements of facts and desired remedies to the facts as they are likely to be perceived by the legal decision makers- judges and juries, and to the ramifications to the client of taking legal positions beyond those articulated by the client. First, the lawyer as attorney/counselor must be a skilled researcher, which involves the ability to seek facts appropriately and through listening skills appreciate what is discovered. The lawyer needs to "find out" the way things were and are. The researcher tries to discover what happened; what people's actions and behavior were; what they said and didn't say; knew and didn't know; intended or didn't intend; and what they remember or perceived as opposed to reconstructed from memories and perceptions filtered through experience and desire. Second, and simultaneously, the lawyer as attorney/counselor must be a skilled storyteller and producer. The lawyer must be able to produce a story from the raw materials of clients' lives and relationships that will maximize the clients' options for resolution of the matter at hand. In this role, lawyers are concerned with how what actually happened can be formulated into a persuasive story they can tell to maximize the potential benefit to their clients. Not getting the real beginning of the problem is a real problem. For instance, not finding out about the earlier business dealing, earlier conversations, or earlier life of the client out of which the problem arises can mislead the lawyer both as to the legal nature of the client problem and as to the value system of the client. The lawyer should first let the client tell where he thinks the problem began, but perhaps open the door to an earlier chapter with questions like "Was this the first time you dealt with this person?" - Excerpts from Recommended Text:Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development Beyond the obvious Understand the business. Understand the client's thinking. Understand the economics. Understand why the client believed its position was reasonable. Understand both sides' perspectives. Understand the client's perception of the strengths and weaknesses of the case? Case Theory Legal theory, factual theory, persuasive theme: After you have determined your case theory, the rest of your planning for the statement of claim or statement of defense should revolve around that theory. Theory of the Case You must anticipate your adversary's theory of the case. Lawyers who can see only one side wind up being polarized and making arguments that arbitrators cannot accept. Statement of Claim The elements of the Statement of Claim are: Text of the Statement of Claim Witness Statements Expert Opinions (Legal & Industry) Exhibits (Documentary Evidence) and a List of Exhibits Schedules - Derived from evidence Witness Statement Statements of fact Not arguments - Do not let the witness argue The witness can only testify about what he or she knew, saw, or heard, or thought, or felt, why, and when, Clear sentences with one idea per sentence. 2011 Vis Moot Witness Statement Expert Opinion - Legal There are frequently expert legal opinions in cases where it is difficult for the arbitrators to independently research the law (often because of language). If there is a disagreement about law, then a lawyer trained in that jurisdiction needs to explain the law to the arbitrators. Drafting the Text Back to Rule 20(2) The names and contact details of the parties; A statement of the facts supporting the claim; The points at issue; The relief or remedy sought; The legal grounds or arguments supporting the claim. Factual Section The factual section must convey your theory of the case. It must address the harmful and helpful facts, and harmonize the story in a way favorable to your client. Don't just tell the Tribunal what happened and when. Write the factual section so that the Tribunal will understand your client's perspective and empathize with it. Legal Section Organize the legal section according to the legal issues as you understand them. You will probably need to introduce some specific facts for the first time in the legal section. The organizational process requires that you strike a balance. Common Pitfalls Assuming facts with no evidence Failure to verify and cross check facts Adopting a legal theory before collecting all the facts Strategy There are often disputes about the facts, and disputes about law. Cases are usually decided on facts and on evidence rather than on law and precedents. The End =Organising Proceedings, Discovery & Hearings I= **국제중재에서의 디스커버리와 변호사-고객간 특권(Attorney-Client Privilege)에 관한 요약** 국제중재에서는 영미법계의 **디스커버리(Discovery, 서류제출의무)** 제도가 일반적으로 활용된다. 상대방의 요청에 따라 관련 서류를 강제적으로 공개하는 절차로, IBA 채증규칙(IBA Rules on the Taking of Evidence)이 실무상 가이드라인으로 널리 채택된다. 다만 관련성·비례성·형평성 등을 고려하여 중재판정부가 그 범위를 조절한다. 디스커버리의 핵심 예외가 **변호사-고객간 특권**이다. 의뢰인이 법률조언을 받기 위해 변호사와 주고받은 비밀 서신은 공개 대상에서 제외되어, 자유롭게 법률조언을 받을 권리를 보호한다. 이는 변호사 직무성과물 특권(Work-Product Doctrine), 합의 협의 특권(Settlement Communications) 등과 구별된다. 사내변호사 문서의 보호 여부, 기밀성 요건, 범죄 관련 한계, 포기 범위 등이 주요 쟁점이다. 대륙법계(한국 포함)에서는 강제 디스커버리가 없고 변호사에게 비밀유지의무를 부과하는 방식이어서 특권 개념이 생소하다. 유럽연합은 AM&S·Akzo 판결 등을 통해 Legal Professional Privilege를 인정하되, 사내변호사는 일반적으로 제외한다. 한국에서도 형사사건에서 헌법상 변호인의 조력을 받을 권리를 근거로 특권을 인정한 판결이 나왔으나, 민사소송에서는 아직 명확한 법적 근거가 부족하다. 국제중재에서 특권의 적용 기준(준거법·중재지법 등)은 중재판정부의 재량에 달려 있다. 실무적으로는 당사자 간 형평과 신뢰를 위해 **최대혜택의 원칙(The most-favoured rule)**이 선호되는 경향이 있다(가장 넓은 보호 범위를 양 당사자에게 동일하게 적용). 최근관계 원칙이나 최소혜택 원칙은 형평성·집행가능성 측면에서 문제가 될 수 있다. 국내 기업을 위한 실무 조언: - 체계적인 서류·이메일 관리 시스템을 구축하고 준수한다. - 내부의사결정 서류와 외부 서류를 분리 보관한다. - 특권·기밀 서류에 “Attorney-Client Privileged”, “Confidential” 표시를 하고 별도 관리한다. - 분쟁 발생 시 관련 서류를 즉시 보존하고, E-Discovery에 대비해 서버 관리에 유의한다. - 디스커버리로 공개된 서류를 이후 증거로 활용할 수 있도록 미리 정리·확인한다. 결론적으로, 국제중재가 증가하는 상황에서 국내 기업은 디스커버리와 특권의 개념·운용을 정확히 이해하고, 평소 서류 관리를 철저히 함으로써 자신의 권리를 효과적으로 보호해야 한다. =Organising Proceedings, Discovery & Hearings I= 1. procedural principles Courts v. Arbitration Court Hierarchy + Content of Procedural Rules = State The authority comes from the sovereign state High Court Rules of Australia Arbitration Hierarchy + Content of Procedural Rules = Party Agreement ICC v. KCAB Arbitration: Hierarchy of Procedural Rules Arbitration Clause Korean Arbitration Act Article 20 Arbitral Proceedings [1] this Act [2] the parties [3] the arbitral tribunal KCAB International Rules Article 21 Rules Governing the Proceedings [1] these Rules [2] the parties [3] the Arbitral Tribunal The Diagram Arbitration > KAA > KCAB Rules > Party Agreement > Tribunal Arbitration: Content of Procedural Rules Korean Arbitration Act Article 19 [1] equally treated [2] full opportunity of presenting his case KCAB International Rules [1] the parties are free to agree [2] the Tribunal it considers appropriate Tribunal Discretion Opportunity to Present Case Procedure Equal Treatment Party Agreement Consequences of Procedural Rules Importance of Party Agreement Importance of Place of Arbitration Importance of Experienced Tribunal Importance of Experienced Opposing Counsel Importance of International Standards Importance of Balancing Formality and Flexibility Commencing the Arbitration Request Answer (+ 30 days) Constitution of the Tribunal (+ 30 days) Preliminary Meeting (+ 30 days) Preliminary Meeting UNCITRAL Notes on Organizing Arbitral Proceedings Telephone/Video Conference/In-Person Introductions Jurisdiction, Interim Measures, Bifurcation etc. Procedural Timetable Terms of Reference 2. timetabling Procedural Timetable Article 15(1) KCAB International Rule Bifurcation/Trifurication Document Production? Written Submissions? Witness Statements? Expert Reports? Inspections? Opening/Skeleton Submissions? Hearing? Post-Hearing Submissions? Award? Procedural Timetable: Issues What comes first? Document Production or Written Submissions? How many rounds of written submissions? Witness Statements/Expert Reports exchanged with submissions or separately? American lawyers prefer discovery first English lawyers, pleadings go first without witness statement 3. terms of reference ICC Rules Article 18 Terms of Reference (1) (3) Article 19 New Claims Benefits of Terms of Reference New arbitration agreement Clarify issues in dispute Promote procedural efficiency Protect the award Confidentiality Language of arbitration 4. document production Evidence and Document Production ICC Rules Article 20 Establishing the Facts of the Case all appropriate means KCAB International Rules Article 22 Evidence [4] the power to determine the admissibility, relevance, materiality, and weight of any evidence. Document Production: Issues Balancing competing interests: - obtaining documents in another party's possession necessary to establish a claim/defence - natural justice vs. - confidential information - privilege - financial and logistical burdens - fishing expeditions Document Production IBA Rules on the Taking of Evidence in International Arbitration - 2010 Bridge between parties from different legal traditions Efficient, economical and fair process for taking evidence Agree to apply or use as guidelines, in whole or in part IBA Rules on the Taking of Evidence in International Arbitration Document Production Requests IBA Rules on Evidence ‘Document’ means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means; Article 3(3) A Request to Produce shall contain: (a) (i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party. Article 3(7) Either Party may, within the time ordered by the Arbitral Tribunal, request the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection. The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 applies; and (iii) the requirements of Article 3.3 have been satisfied. Any such Document shall be produced to the other Parties and, if the Arbitral Tribunal so orders, to it. Redfern Schedule Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns: First Column: identification of the document(s) or categories of documents that have been requested; Second Column: short description of the reasons for each request; Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and Fourth Column: left blank for the decision of the arbitral tribunal on each request. Document Production: Consequences? IBA Rules of Evidence Article 9(5) If a party fails without satisfactory explanation to produce documents, the Tribunal may make the Tribunal may make adverse inferences about the document and interests of party. Article 9(7) If a party fails to conduct itself with good faith in the taking of evidence, the tribunal may take such failure into account in its assignment of the costs of the arbitration. Privilege: What is it? Common law principle Right to prevent disclosure of certain communications in court/arbitration proceedings, even if relevant or material Privilege rules allow client to be open and candid with lawyer without fear the communication will be used in proceedings. Privilege belongs to the client, not the lawyer and may be waived. Privilege logs -> Privilege: Types? Attorney-Client Privilege (or Legal Advice Privilege) Work Product Doctrine (or Litigation Privilege) Settlement Discussions (or Without Prejudice Privilege) Sealed Envelope Offer Privilege: The Problem Korean Claimant -> No Privilege Seoul + Korean Law -> No Privilege US Respondent -> Different Privilege Rules Australian Respondent -> Different Privilege Rules == Unequal Treatment Privilege: Solutions? 1. Most-Closely Connected Rule: - most closely connected privilege law should apply to the document - multiple laws could apply to multiple documents, unequal treatment? 2. Most-Favoured Rule: - law providing the most favorable privilege should apply to all parties - ensures equal treatment, but breaching law of narrowest jurisdiction 3. Least-Favoured-Rule: - law providing the narrowest privilege should apply to all parties - ensures equal treatment, avoids breaching law of narrowest jurisdiction Best Practices for Korea? Korean parties in international arbitration: - can expect to produce documents - must be aware of consequences - may avail themselves of privilege - should implement - 4. Other Protections -> in camera review by tribunal or 3rd party? 5. hearing logistics What is the Purpose of Hearings? 1. Opportunity to be heard 2. Test facts and law Hearings are not always necessary KCAB Domestic Rules Art. 45(1) Hearing Logistics: Laundry List - Hearing Venue - Transcription/LiveNote - Interpretation - Hearing Room? - Breakout Rooms? - Secretarial Services? - Hearing Bundles? - Seating Arrangements? - Food & Refreshments? Hearing Venue Place of Arbitration v. Hearing Venue Art.14(2) ICC Rules Art.18(2) KCAB International Rules Hearing Venue Dedicated Hearing Centre? Hotel? 6. hearing schedule Laundry List Timing-chess clock? Opening statements? Witness Sequestration? Witness Examination? Expert Examination? Hot Tubbing? Closing Statements? =Hearings 1= Discovery/Organizing the Proceedings and Hearing 1 Our lecture will provide an introduction to the main principles and practice of arbitration hearings and the means by which parties convince the arbitral tribunal of their cases. We will take participants on a step-by-step and interactive tour through the organisation and conduct of the hearings, with a particular focus on evidence, both documentary and oral, including the document production process, as well as written and oral submissions. We will also explore some of the different approaches currently adopted in international arbitration to preparing and holding hearings. Hearings 2 Cross-Examination of Witnesses in International Arbitration-the techniques that will enable you to control and impeach the adverse witness, thereby advancing your arguments and minimizing the risk that you will unintentionally elicit damaging testimony from the witness. Min Ho Lee "Techniques for Cross-Examination in International Arbitration" IA is exciting Competitive fields Cross is all about asking the right question Introduction Differences in common law trial, civil trial, and international arbitration The common goal of cross-examination is to convince the decision-maker that my client's position is more reasonable than that of the opposing party Cross-examination - done well- serves not only to crystallize the parties' positions and shed light on disputed facts, but can also be, quite simply, entertaining as well." First Technique "Be Prepared" Preparation is the be all and end all of success. Determine the aims of your cross-examination. Draft an outline and key questions, and be ready to tell the story Be ready to contradict any "wrong" answer Second Technique "Ask Leading Questions" Cross examination is getting your story out to the decision-maker rather than to ask the witness for information" Leading questions are questions that Assume the Answer/Simple Statement of Facts Ask questions that must be answered "Yes" or "No" Avoid open ended questions that ask for information no "who" "what" "when" "where"/"how" and "why" Never invite the witness to explain his or her testimony Third Technique "Ask Only Questions that Your Already Know (and Can Prove You Know) the Answer" If you do not know the answer to the question, your should not ask the question The unknown answer can hurt you-do not ask "WHY?" Exceptions Fourth Technique "Ask Clear, Simple Questions" Cross-examination questions should be short, simple and clear Avoid compound questions Avoid disjunctive questions Fifth Technique "Do not Let the Witness Merely Repeat Directly Testimony" This is not only ineffective, but also counter productive because it emphasizes and strengths the direct testimony Sixth Technique Do not Quarrel with the Witness Don't do it unless you can completely win the argument Try not to make any cheap point Sevenrth Technique Nineth Technique Impeachment Impeachment = destroy the credibility of a start vines for the opposition through a cross-examination Impeachment should not be attempted unless there is reliable evidence that clearly contradicts or undermine the witness Methods for impeachment Prior Inconsistent Statement by the Witness Inconsistencies within the Witness Statement Evidences =Costs And Interest= This lecture will cover four topics in general. First, arbitral expenses -principle of division{of the expenses) by parties, typical expenses, particular considerations, etc. Second, standard for calculation and governing law of interest{in arrear) or loss incurred by delay. Third, statement of arbitral award. =Making of the Award (The Decision-Making Process)= =Recognition and Enforcement of Awards= This class is aiming at introducing students to the general role of the Korean Court in arbitration, and improving the students' understanding of the practical issues as to setting aside of arbitral awards(domestic awards) or refusing the enforcement of arbitral awards(mainly foreign awards) through reviewing the Korean Courts' decisions. =Proof and Procedure in Common Law= This presentation will cover a broad range of basic rules of procedure and evidence in common law jurisdictions. Emphasis will be placed on the how these rules apply to international disputes. Civil Trials in Common Law Jurisdictions A. Overview of Trials in Common Law Jurisdictions.. (커먼로 관할에서의 소송절차 개관) 1. The Actors (소송의 주체) a. Plaintiff. (원고) b. Defendant. (피고) c. Judge. (판사) d. Fact Finder. (사실관계 판단자) The jury; if no jury, then the judge 2. The Trial. (재판 심리) The parties submit evidence in support of their claims or defenses. After a party submits evidence, the other party has an opportunity to challenge the veracity or authenticity of the evidence. In common law jurisdictions, only the plaintiff and defendant are active in submitting and challenging the a、ridence; the judge and fact finder are mostly passive observers during the trial. 3. The Ruling. (판결, 결정) After all evidence is submitted at trial, the fact finder makes findings of fact based on the evidence. The fact finder rules that one party’s rendition of the facts is more credible than the other party’s rendition. Then that factual finding is applied to the law. B. Commencing a Civil Lawsuit. (민사소송의 개시 ) 1. Filing a Complaint. (소장 접수) A civil action starts when the plaintiff files a complaint with the court. The complaint is a statement of facts stating the plaintiff’s legal c1aim. 2. Serving Notice. (소장 및 소송고지서의 송달) After receiving the complaint, the court will issue a summons. this is an order for the defendant to answer the complaint. The plaintiff (not the court) has the duty to serve a copy of the complaint and summons on the defendant. The summons and complaint serve as notice of the lawsuit and must be properly served on the defendant before the civil action can proceed. C. The Pleadings. (소장 및 답변서 진 차) Pleadings are the parties’ initial statements of their case to the court and to each other. 1. Complaint. (소장) The complaint is the initial pleading and is filed by the plaintiff. 2. Answer. ( 답변서) The defendant’s pleading is the answer. In the answer, the defendant must admit or deny any factual allegations in the complaint. The defendant may also raise affirmative defenses or grounds for dismissal. 3. Counter-Claims. (반소장) The defendant may a1so state claims against the plaintiff. These claims are called counterclaims and 、‘ìill be tried in the same proceeding‘ The plaintiff must thereafter file an answer in response to the defendant’s counter claims. 4. Cross-Claims. (피고상호 청구) If there are multiple defendants, a defendant with a claim against another defendant may file those claims with the court. One defendant’s allegations against another defendant are called cross claims. 5. Impleader. 제3자 소송참가) If the defendant alleges that another partY IS wholly or partially liable for the plaintiff’s claim, he may request to have that third party joined in the law suit. This procedure is called ímpleader. 6. Strategy and Pleadings. The scope of the plaintiff’s case and the defendant's defenses are determined by the content of the pleadings. Neither plaintiff nor defendant can present a claim or affirmative defense at trial that is not contained in the pleadings. 7. Amending the Pleadings. (주장, 항변의 변경) The parties can amend the pleadings to add allegations or defenses at the early stages of the proceedings. The court has discretion to allow amendments and may not accept amendments once the trial has commenced. D. Early Defenses. (조기 제출 항변 사유) The defendant may raise any of the following defenses in the answer or by a special procedure called a motion. 1. Improper Service of Process. (부적법 송달) An action will be dismissed if the plaintiff improperly served the complaint on the defendant. The plaintiff may be able to serve process again if the timeline for service of process has not yet expired or the court grants a time extension for service. 2. Failure to State a Cause of Action. (법적 정 인 부존재) An action will be dismissed if the plaintiff’s allegations, even if true, do not state a cause of action which the law recognized or provides a remedy. 3. Lack of Personal Jurisdiction. (인적 관할 부존재) An action must be dismissed if the court does not have personal jurisdiction over the defendant. Personal jurisdiction is proper under the following circumstances: (적 법한 인적사유들) a. Personal Service of Process in State. (법원 지역에 있는 피고에 [H 한 직 접 교부) If the plaintiff personally serves the summons and complaint on the defendant in the state where the court is located, personal jurisdiction is satisfied. b. Defendant is a State Domiciliary. (피고가 법원 관할 지역내 거주자) A court’s Personal jurisdiction is always satisfied as to domicìlìary (citizen) of the state where is court is located. c. Defendant is a Corporation Doing Business in State. (회사의 해당 주에서 설립허가받거나 주된 영업을 하고 있음) A corporation that is licensed in a state or that does substantial business in a state can be sued on any claim in that state. d. Defendant Consents to Personal Jurisdiction. (피고가 관할메 동의) Personal jurisdiction is proper if the defendant voluntarily appears or contractually agrees to appear for trial in the state. e. Defendant has Sufficient Minimum Contacts. (피고가 해 당 주에 죄소연 점 있을 것) If a defendant is not located in the state where she has been sued, the U.S. Supreme Court has developed a “ Minimum Contacts" test to determine if personal jurisdiction would still be proper. (Complicated Legal Analysis) f. In Rem Jurisdiction. (물적 판할 소재지) If the lawsuit relates only to possession or ownership of property, then jurisdiction is proper in the state where the property is located even if personal jurisdiction over the defendant is not otherwise satisfied. 4. Lack of Subject Matter Jurisdiction. (사물관할 부존재) A lawsuit must be dismissed if the court does not have the authority to hear the type of dispute the plaintiff has Initiated. 5. Affirmative Defenses. (각하항번사유) The defendant may also motion to dismiss a case based on any of the following defenses: a. State of Limitations. (소멸시효 완성) The time limit for filing the plaintiff’s action had passed at the time the plaintiff filed. b. Payment of Debt. (변제) The plaintiff’s complaint alleges that the defendant owes adebt， but the defendant has proof that she already paid the debt. c. Arbitration Resolved. (중재 성립) The defendant can prove that the issue has already been resolved in arbitration. d. Release by Plaintiff. (면제) The defendant can prove that the plaintiff has already contractually released the defendant (SETTLEMENT) e. Res Judicata. (기판력) The case or issue has already been resolved at trial. f. Infancy of Defendant. (피고의 미성년, 의사무능력) The defendant is an infant and incompetent to stand trial. g. Bankruptcy Discharge. (파산) The claim is for payment of a debt, and the debt has already been discharged in bankruptcy. h. Statute of Frauds. (특정 계약에서 서면부존재) The claim is based on a contract that must be in writing to be enforceable, and there is no such written document E. Preparing for Trial. (제판준비잘차) Once all of the pleadings are submitted, the court will set a trial date and outline a schedule for discovery. 1. Discovery. (증거개시 제도) Discovery is the process whereby the parties collect evidence from each other and determine the strength of the other's party’s case. Civil Procedure law allows each party to request information from the other party that relates to the case. The scope of discovery is very broad, and each party is generally obligated to give the other party any evidence requested. The court has GREAT discretion is ordering a party to comply with discovery requests. In extreme cases, the court may penalize a non-cooperative party with a monetary fine, brief detention， or even declare the other party the victor of the case! a. Disclosure Devices. (개시 수단, 방법) i. Initial Disclosures. (개시 시작) Before formal discovery begins, the parties are required to disclose the location of documents that are relevant to the case. The parties are also required to describe any documents or other evidence that is likely to be used by EITHER PARTY at trial-e.g.， contracts, tìt1e documents, insurance contracts, etc. ii. Depositions. (진술 녹취) These are formal, recorded intervieWS of the other party or witnesses. The purpose Ís to 1earn more about the case or the existence of evidence. A deposed witness MUST tell the truth or she can be punished criminally. iii. Interrogatories. (서면 질의) These are written questions submitted to the other party or a witness. The recipient must answer the written questions m wntmg. iv. Documents Requests. (서면 요구) A document request COMPELS the recipient to submit copies of all documents that match the r，equesting party's request‘ v. Medical Exams. (으| 학적 검사) A party can request other person to be examined. vi. Requests for Admission. (사실인정 요구) A party can ask the other party to admit to certain facts. b. Objections to Disclosure. (증거개시에 대한 이의) The parties generally try to work it out on their own. lf they cannot, one of them will motion the court. The requesting party wiU file a motion to compel and the objecting party will seek a protective order. C. Remedies for Failure to Disclose. (종거개시 거부에 대한 구제) Civil or criminal contempt of court; in some extreme circumstances, the court may terminate the case by ruling in favor of the non-offending party. 2. Settlement Negotiations. (화해어l 의한 분쟁 종결) Parties are encouraged to negotiate a settlement of their dispute outside of court. Once the parties have agreed to a settlement， they typically sign accord or settlement agr야ment. The agreement is pay some money or take some action in exchange for the other party promising to drop the case and not sue again (accord). F. Judgments before Trial. (심 리전 재판) 1. Summary Judgment. (심 리전 판결) Either party may, before the presentation of evidence commenιes at trial, motion the court for summary judgment. The court w피then review the documents， affidavits, and other evidence to determine whether there is any issue of fact requiring a trial. If the e、ridence so strongly favors one party that reasonable jurors could not differ in opinion, then the court will enter summary judgment on the case. 2. Default. (으|제자백 또는 각하결정) If the defendant fails to answer the summons and complaint or if either party fails to aetively participate in the trial, the court will make an order of default. Afterwards, the non-defaulting party may request the court to enter judgment by default in her favor. G. The Trial. (재판 심리) Once the parties have finished collecting their evidence, they go trial. At trial, the parties use evidence to convince the jury that their assertions are true and that their opponent’s assertions lack merit. 1. Role of Judge. (판사 역할) The judge determines all motions, administers the proceedings according to the rules of procedure, ensures the parties present evidence according to the rules of evidence, and instructs the jury on the relevant law. 2. Role of the Lawyers. (변호사 댁 The lawyers try to convince the jury (or fact finder) that their client should win the case. Lawyers do this by presenting evidence, questioning witnesses, and attacking the credibility of the other party’s evidence or witnesses (impeachment). 3. Role of Jury. (배심원 역할) In most cases, the fact finder is the jury, a group of‘ unbiased citizens. The parties may agree to try the case without a jury. If so, the judge is the fact finder. In either case, the fact finder must decide every element or issue of the plaintiff’s claims and the defendant’s defenses. Factual findings must be based only on ADMISSIBLE evidence presented at trial. H. Evidence (증거). 1. Purpose of Evidence. (증거제줄 목적) The parties present evidence in order to convince the fact finder that their factual allegations or defenses are credible/true. The fact finder can base its findings only on the evidence properly admitted at trial. 2. Relevance. (관련성) The most important rule of evidence is this: only relevant evidence is admissible‘ Evidence is relevant if it had tendency to make a t would be without the evidence. 3. Judge Discretion. (판사 재량) The judge is the referee in the jury trial. As such, the judge must make sure that the parties observe the rules of evidence. The judge can exclude evidence if the rules of evidence require it. Also, the judge may exclude some admissible evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion or undue delay of the trial. 4. Methods of Presenting Evidence. (증거 종류) There are a number of ways to present evidence at trial: a. Witness Testimony. (일반 종류) Non-expert witnesses are allowed to testify regarding facts they witnessed first hand. They may also testify regarding their opinion of a party or the reputation of a party. b. Expert Witness Testimony. (전문가 증언) Parties often present the testimony of an expert witness. The court must first ensure that the witness is qualified as an expert before he or she is allowed to testify at trial. c. Hearsay. (전문증거 배제) There are very strict limits on how statements or documents made outside of court can be presented in court. These rules are complicated, but the goal is to keep unreliable evidence out of trial. d. Impeachment. (탄핵증거) Either party may attack the credibility of a witness. This is usual1y done by showing that the witness’s testimony is unreliable or false. e. Documentary Evidence Rules. (증거능력) Before entering documents, pictures, or other re:cording into evidence, the party must first establish that the document or recording is in fact what she purports it to be 5. Excluding Inadmissible Evidence. (증거배제방법) a. An Objection. (증거이의) If a party believes that evidence presented by the other party is improper, he must immediately state his objection to the court. The judge wiU then rule whether to allow the evidence or exclude it. b. A Motion to Dismiss. (사전증거이으1) Often a party will know in advance that the other partY wishes to present disputed evidenceIn this case, the party can motion the court to exclude the evidence before trial. The judge must exclude the evidence if it is improper under the rules of evidence. c. A Limiting Instruction. (증거배제 지시) If a party does present improper evidence, the judge must order the evidence improper and instruct the jury to 19 nor응 the evidence. If there is no jury, the judge MUST NOT consider that evidence when making the final decision in the case. I. Judgments (판결) 1. Judge Instructs the Jury on the Law and Instructs them to Reach a Finding on Each Element of the Cause of Action. After the presentation of evidence, the judge will instruct the jury on the law. Usually, this means that the judge will explain every legal element of the plaintiff’s claim, and then tells the jury to weigh the evidence as to every element. Also, the judge will instruct the jury to ignore any evidence that was improperly mentioned or introduced. 2. Judge is Bound by Jury Determinations. The judge is bound by the jury determinations UNLESS one of the parties moves for Judgment Notwithstanding the Verdict (JNOV). By using this motion, a party argues that the jury’s determination is against the clear weight of the evidence. If the court grants the motion, it essentially reverses the jury’s determination on the contested is없le(s) of fact. J. Res Judicata. (기판력) Courts CANNOT and WILL NOT re-try issues of 훨학 that have already been determined at trial. 1. Claim Preclusion. (청구원인에 대한 기판력) Once a lawsuit has come to final judgment, the plaintiff‘ cannot sue the defendant on any claim arising from the same transaction or occurrence that gave rise to the lawsuit. 2. Issue Preclusion. (이슈에 대한 기판력) Once a fact finder has determined an issue of fact at trial, that fact will not be tried again if the issue is rele、'ant in a future lawsuit. K. Appeals. (항소절차) Once the trial has reached a final judgment, the unsuccessful party may appeal any decision or ruling of the trial court, but only if they objected to it at trial. 1. Timely Appeal. (항소제기 지 간) In most jurisdictions, an appeal must be filed within 30 days from the date of the judgment. 2. Role of Appeals Court. (항소심의 심 리 범위) Courts of appeals will fully review lower courts determinations of law (issues of law)‘ Appeals courts will only review a trial court’s finding of fact if it is clearly erroneous (clearly against the evidence). L. Enforcement. (앙제집행) Courts can only render judgments; they have no power to enforce their judgments. In most cases, the losing party wi1l voluntarily pay the judgment. If not, the victorious party must find a way to enforce the judgment. 1. Role of the Government. (경잘의 집행권한) Court judgments are enforced through an order of execution. Execution is issued by the court and delivered to executive branch officials (usually police), who order the losing party to pay the judgment. Otherwise, the police attach or seize property and hold a sale of the debtor피 property to satisfy the judgment amount. 2. Sufficient Assets? (집행 불능 경우 및 불능재산) If the judgment debtor has insufficient assets to pay the judgment, then the victorious party in court will go unpaid. In some states, some assets such as the family home, one car, pension benefits, etc. are exempt property and, thus, cannot be levied to satisfy a debt. =KCAB 국제중재법규 해설= =KCAB 국제중재 판정사례= The Arbitration Agreement Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration under KCAB Rules/International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. Conducted in Claimant's Country: "All disputes in relation to this contract shall be finally settled by arbitration in this country of the claimant. In case the claimant is (a Korean Company), the arbitration shall be held at the KCAB. In case the claimant is (a Chinese Company), the arbitration shall be held at the CIETAC" Request for Arbitration The request shall contain the following information Name in full, description and addresses of each of the parties A description of the nature and circumstances of the dispute giving rise to the claims The relief sought of any amounts claimed Composition of Arbitral Tribunal Parties may, by their agreement, appoint arbitrator(s) or the method of appointment. The number of arbitrators, a Sole Arbitrator or three Arbitrators Appointment by Secretariat Three Arbitrators shall be appointed taking into consideration the size, complexity or the factors of the dispute General Provisions Arbitrators acting under the Rules shall be and remain at all times, impartial and independent. Prior to accepting appointment: a prospective arbitrator shall disclose in writing to the Secretariat, any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Arbitral Awards The arbitral award shall have the same effect on the parties as the final and conclusive judgment of the Court. The enforcement of an foreign arbitral award shall be granted by the judgment of a Court (Provisions on the New York Convention, 1958) Case Study Main Issues: Breach of Contract Claimant is alleging that Respondent has a responsibility for the damages. • Claimant: There were product defects or quality claims such as inferior parts and excessive noise etc. Claim on loss caused by slow sales of 950 sets in quality problem among totally supplied 2,000 sets. The Claimant also alleges that the Respondent should compensate for all damages incurred by them. Respondent: Not by quality problem, but by the Claimant incapability for distribution and unfavorable external factors such as brand in the market. There was an agreement that in case of 5% or more of defects among the goods supplied by the Respondent. As to the Respondent's assertion that sales contract terms, must be construed as consistent with course of performance and dealing. Considering the circumstances: The main commercial risks in international trade relate to; Goods not matching the requirements of the order, goods which are unsatisfactory because they are of poor quality, poor value. The testing results of the defects in the chip processor and the conclusion are different. The evaluative defect is not clear about the object of comparison that is objective in standard and the measuring method is different from a common one. Any claims by Buyer of whatever nature arising under this contract shall be made by e-mail within three months after arrival of the goods at the destination specified in the Bills of Lading. Full particulars of such claim shall be made in writing, and forwarded by registered mail to Seller within 30 days after claim notice. Buyer must submit with particulars authorized Surveyor's Reports when the quality or quantity of the goods delivered is in dispute. CISG should be applicable The applicable laws to find the facts of this case and to provide legal interpretation and construction, including the burden of proof, good faith principle and consideration of equity, shall be the body of CISG. CISG 38(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances CISG 39(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. CASE: Performance of the Sales Contract Summary of Relief Sought 1. The Respondent shall pay to the Claimant the sum ofUS$425,730 with interest thereon from March 9, 2010 . 2. The Respondent shall compensate the Claimant for lost profits arising from the need to re-allocate Claimant's purchase of the subject goods. Reasons for Award 1. Basic Facts relating to the Disputes According to Claimant's Exhibits A and B and Respondent's Exhibit 4, the Claimant and the Respondent have agreed that all disputes in connection with the subject sales contracts shall be finally settled by arbitration before the KCAB in accordance with the Arbitration Rules. The principal issues of this case whether the Sales Contract has indeed been established and if so, who shall be liable for the consequences in the event of failure to perform the Sales Contract. The scope of such liability and quantum of damages . The Respondent's act to have returned the Sales Contract via facsimile stating thereon "Not Confirm", an ambiguous expression, as a firm expression to reject the modified offer by the Claimant in the international transaction. The Respondent may not avoid the responsibility arising out of its non-performance of the Sales Contract. The compensation of actual damages, it is not necessarily true that there shall be no causal link between any damages incurred by the Claimant. The Tribunal determines that the Sales Contract has indeed been established. Both parties were duly obliged to faithfully perform their respective contractual obligations. The Respondent, having been alerted to the seriousness of its liability which may be triggered due to its non-performance of the Sales Contract, attempted to find a way out for indulgence. This award is prepared by the Tribunal in both the Korean and English language so that both versions may have force as the duly authenticated award. There should be any discrepancy of this award, the Korean version shall prevail as a matter of the laws of Korea. The judgment upon this award may be entered in any court having proper jurisdiction. =Arbitration Under Investment Treaties= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. =Interactive Session= In this Interactive Session, there will be an assessment of students' under•standing of International Arbitration on the basis of theory and work of International Arbitration of this program. The test will be composed of multiple type of questions about theory and case for arbitration work. hpymphj4pxngzh4w3f66ujxy9y0jvlg