Useful Post-Dispute Agreements for International Oil & Gas Arbitrations - Chapter 22 - Leading Practitioners’ Guide to International Oil & Gas Arbitration

Author(s): 

Thomas J. Brewer

Page Count: 

26 pages

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1 PDF Download

Published: 

August, 2015

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Originally from The Leading Practitioners' Guide to International Oil & Gas Arbitration

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Parties involved in international oil and gas disputes often find

negotiation of several different types of post-dispute agreements

useful in particular cases in which the parties’ dispute will be resolved

by arbitration. For example, procedural agreements covering matters

such as privilege-related issues pertaining to experts, confidentiality,

and inadvertent production are now routine in such arbitrations.

 

The thesis of this chapter is that parties and their counsel

confronting a new oil and gas dispute that has already arisen and the

salient details of which are known, also should give early

consideration to whether other, and potentially more useful, types of

agreements can be negotiated with the opposing party. Depending on

the particular dispute at issue, such negotiations might address several

different types of post-dispute agreements. These possibilities include

agreements to submit the dispute to arbitration, agreements to

expedite or improve resolution of the dispute by customizing the

arbitral forum that will decide it, agreements to limit or prioritize the

issues to be addressed, and agreements to partially settle or limit the

dispute—or several of these, in combination. Even parties far apart

from one another on the substantive issues in dispute may find it

mutually beneficial to agree on post-dispute procedural steps that can

focus, partially resolve, or expedite resolution of the dispute

 

Such agreements unavoidably require negotiation with and

obtaining the agreement of the opposing party. For this reason,

counsel sometimes overlook these possibilities at the outset of a new

dispute based on the assumption that, after a dispute has arisen, it

will be “too difficult” to negotiate agreements with the other side.

This is a mistake. In fact, sophisticated parties and able counsel often

can and do negotiate agreements addressing these points. They do so

for differing specific reasons in particular cases, but also for two

additional reasons of more general applicability: Opposing parties

frequently share a common interest in designing a forum best-suited

to resolving their particular dispute and, particularly where they share

a history of doing business together, as is not uncommon in the oil

and gas business, also frequently share an interest in obtaining an

expedited resolution of the key issues in dispute without unnecessary,

expensive, and sometimes provocative efforts spent on non-essential

disagreements. Far from being a disadvantage, tackling these issues

after the nature (and, usually, most of the key facts) of the dispute has

become known, should be viewed as an opportunity to craft a dispute

resolution process well-suited to the particular dispute that has arisen.

 

To give just one example, I had the pleasure of serving as the

tribunal chair in a large oil and gas arbitration in 2012 that involved

many of these considerations. The case originally was filed in court,

in early 2009, and was still pending there by late 2011. The case

involved nine-figure damages claims and very sophisticated parties
represented by excellent and experienced counsel.