Arbitration is especially well suited to international commercial dispute resolution. Parties from different countries need not worry about winding up in litigation in each other’s “home” courts, or seeing disputes adjudicated under unfamiliar laws. International arbitration sidesteps these thorny problems by permitting the parties to select neutral venues and their preferred choices of law and rules of procedure. The parties may also select arbitrators with experience in international commerce and/or knowledge in a particular field, rather than litigating before local, nonspecialist judges (and juries) who may be ill-equipped to deal with complex international commercial disputes. Importantly, once a party prevails, it has proven considerably easier to enforce international arbitral awards than to enforce the judgments of foreign courts in other countries.
Sidley’s international arbitration practice has two principal components: first, international commercial arbitration (typically between private parties) in fora around the world, and second, treaty-based arbitration of disputes involving sovereign governments, such as WTO cases or arbitrations between foreign investors and their host governments. These two areas can and do overlap, but they also represent distinct skill sets within the firm.
Sidley’s experienced international arbitration practitioners can provide invaluable advice in:
Crafting contract clauses in favor of international commercial arbitration. In today’s global economy, every international commercial agreement should contain dispute resolution provisions that are custom-tailored to preserve commercial relationships where possible, and to assure the prompt resolution of intractable disputes. Arbitration clauses are the preferred solution. We can help with choosing among prepackaged arbitration procedures such as those of the International Chamber of Commerce (ICC), the American Arbitration Association (AAA) or the U.N. Commission on International Trade Law (UNCITRAL), supplementing those rules with customized provisions to the extent permitted, or crafting a client's own rules and procedures altogether to fit specific situations such as infrastructure engineering projects, joint ventures and international shipping and trade transactions.
Enforcing agreements to arbitrate. Some 132 countries have ratified the New York Convention, binding their courts to enforce written agreements to arbitrate international commercial disputes. In addition, 36 jurisdictions have enacted legislation based on the UNCITRAL Model Law on International Commercial Arbitration, which provides for enforcement of arbitration agreements and harmonized arbitration procedures. The bottom line is clear: clients can rely on arbitration agreements to bypass unfamiliar or inadequate domestic court systems in foreign countries in which they do business.
Arbitrating disputes. Arbitration is not merely streamlined litigation. It is important to have experience operating within the rules governing a particular dispute. International arbitration can take place - and be managed from - almost anywhere in the world, but it should be managed by experienced practitioners.
Enforcing arbitral awards. In the 132 countries that are signatories to the New York Convention, local courts are obliged to recognize and enforce foreign arbitral awards, subject only to limited, specified exceptions and “public policy” limitations. With bases of operation around the globe, our team can work to enforce arbitral awards wherever the losing party’s assets are located, or (as the case may be) to resist enforcement wherever it is attempted.
Pursuing arbitration even when the contract directs disputes to domestic courts. Where a government’s action or inaction is at the core of a dispute, a foreign investor may be able to resort to a specialized form of international arbitration under treaties designed to protect investors - even if contracts related to the investment (such as concession contracts) specify adjudication in domestic courts. Because this option may only be available before the dispute has been referred to courts or contractual dispute settlement mechanisms, it is critical to investigate the option early on.
Convincing governments to arbitrate to protect investors or traders at the World Trade Organization. Where a government has taken actions that injure an investor or trader, it may well have contravened aspects of the WTO rules involving trade in goods, services, investment or intellectual property rights. If so, government-to-government arbitration at the WTO is potentially available in addition to any other arbitration remedies, and is not subject to the limitations of the company’s arbitration contract clauses.
Sidley lawyers have extensive experience in international arbitration under all of the relevant procedures and in all of the leading fora - including UNCITRAL, ICC, AAA, CIETAC, CMAC, LMAA and ICSID rules and proceedings in the London Court of International Arbitration, the Arbitration Institute of the Stockholm Chamber of Commerce, the Hong Kong International Arbitration Centre, ICSID, the WTO and in ad hoc arbitrations around the world.
Our practitioners’ experience includes:
- Service as President and judge of the International Court of Justice, and as an arbitrator in dozens of international disputes, including cases between investors and foreign governments, some involving claims for hundreds of millions of U.S. dollars;
- Representing a French satellite manufacturer in an ICC arbitration with the Dutch purchaser, conducted in Washington D.C., and involving claims valued at over US$100 million;
- Developing and litigating investor claims under bilateral treaties in arbitrations before the World Bank’s International Center for the Settlement of Investment Disputes, including claims by U.S. and French investors against Argentina, by Italian investors against Pakistan and by a German investor against Saudi Arabia, in addition to representing respondent governments;
- Representation of a consortium of NATO countries in ICC arbitration involving U.S. and international companies competing for a multibillion dollar missile defense system contract, in which the NATO countries’ contract award was upheld;
- Providing expert testimony on principles of international law in an ICC arbitration before the Arbitration Institute of the Stockholm Chamber of Commerce;
- Conducting an ICC arbitration in Lausanne, on behalf of a Chinese chain of home improvement stores, arising out of the breakdown of a joint venture agreement;
- Prosecution in AAA arbitration of claims by Lockheed Martin relating to software development for a mobile radar defense system for the Government of Turkey, resulting after an 8-day hearing in a US$17 million award for Lockheed and the rejection of a US$74 million counterclaim;
- Advising a large multinational company in negotiating and enforcing, against the backdrop of arbitration, settlement agreements with French and Taiwanese entities over a property dispute in Taiwan;
- Arbitrating a commercial dispute brought by a Russian company against a California company in AAA arbitration in San Francisco; and
- Working with or for governments in defending or prosecuting more than 170 WTO disputes in Geneva.
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