Saving Time and Money in Cross-Border Commercial Disputes - Chapter 28 - AAA/ICDR Handbook on International Arbitration and ADR - 2nd Edition

SAVING TIME AND MONEY IN CROSS-BORDER COMMERCIAL DISPUTES Walter G. Gans∗ I. Introduction The number of transnational transactions spawned by an expanding global economic environment and trade liberalization is increasing at a rapid rate. Many of these are in the form of joint ventures, alliances and other collaborative arrangements which envisage ongoing, usually longterm, business relationships. But just as two people getting married are not disposed to foresee disputes between themselves or contemplate the unthinkable, a rupture or a divorce, so business negotiations typically have failed to recognize, in otherwise detailed documentation of their venture, the importance of anticipating the consequences of future disagreements that might result in serious disputes. Lawyers’ efforts to get the business people to focus on these issues, let alone to adopt well-articulated modalities to handle differences of opinion, often fall short. What frequently results is a truncated dispute resolution clause that fails to take into account the nature of the transactions envisaged, the organization and cultures of the participants, and their intentions, whether or not expressed at the outset. Yet, business executives will acknowledge that in any long-term contractual relationship differences in business philosophy and interpretation of the negotiated deal are inevitable. The document evidencing the relationship cannot possibly foresee, nor perhaps should it, the myriad areas of possible conflict and disagreement. Nevertheless, the ideal time to acknowledge and deal with potential future conflict is at

Table of Contents:

Full Table of Contents from "AAA/ICDR Handbook on International Arbitration and ADR - 2nd Edition"

PART I: International Arbitrators and Institutions

Chapter 1
International Commercial Arbitration: Harmonizing Cultural Differences
Julian D.M. Lew and Laurence Shore

Chapter 2
Managing International Arbitration:
A Shared Responsibility of the Parties, the Tribunal, and the Arbitral Institution
David E. Wagoner

Chapter 3
Selecting an Arbitral Institution to Administer International Arbitration:
Are National or Regional Centers a Viable Option?
John B. Tieder Jr.

Chapter 4
Corruption, International Public Policy and the Duties of Arbitrators
Bernardo M. Cremades and David J. A. Cairns

Chapter 5
The Civil Law and Common Law Divide:
An International Arbitrator Tells It Like He Sees It
Pierre A. Karrer

PART II: International Arbitration Proceedings

Chapter 6
The Role of Party Autonomy in
International Arbitration
Karl-Heinz Böckstiegel

Chapter 7
Presenting, Taking and Evaluating
Evidence in International Arbitration
Karl-Heinz Böckstiegel

Chapter 8
Arbitral Interim Measures: Fact or Fiction?
Raymond J. Werbicki

Chapter 9
Special Considerations When a State Is a Party to International Arbitration: Why Arbitrating Against a State is Different:
12 Key Reasons
Barry Leon and John Terry

Chapter 10
Conducting Satellite Industry Arbitrations Under the Watchful Eye of the International Traffic in Arms Regulations
Raymond G. Bender, Jr.

Chapter 11
In International Arbitration, Disclosure Rules at the Place of Enforcement Matter Too
Peter L. Michaelson

PART III: The Enforcement of Arbitral Awards

Chapter 12
Interim Relief in International Arbitration-Enforcement Is a Substantial Problem
David E. Wagoner

Chapter 13
Interpreting the New York Convention:
When Should an Interlocutory Arbitral "Order" Be Treated As an "Award"?
Marc J. Goldstein

Chapter 14
The Perils of Parallel Proceedings: Is an Arbitration Award Enforceable if the Same Case Is Pending Elsewhere?
Nadine Balkanyi-Nordmann

Chapter 15
Respecting Awards Annulled at the Seat of Arbitration:
The Road From Chromalloy to TermoRio
Jonathan I. Blackman and Ellen London

Chapter 16
The ICDR"s Emergency Arbitrator Procedure in Action:

Part I: A Look at the Empirical Data
Part II: Enforcing Emergency Arbitrator Decisions
Guillaume Lemenez and Paul Quigley

PART IV: Negotiation and Mediation

Chapter 17
Confidentiality in Mediation
Klaus Reichert

Chapter 18
Negotiating in Good Faith
David I. Bristow, Q.C. and R. Brendan Bissell

Chapter 19
International Intellectual Property Dispute Resolution:
Is Mediation a Sleeping Giant?
Carmen Collar Fernandez and Jerry Spolter

Chapter 20
Mediation and the North American Free Trade Agreement
Steven K. Andersen

PART V: International Mediation

Chapter 21
Selecting a Mediator in International Disputes:
Dare We Speak of Mediation as "Winnable"?
Claudia T. Salomon and Peter D. Sharp

Chapter 22
The Power of Mediation to Resolve International Commercial Disputes and Repair Business Relationships
Alexandra Alvarado Bowen

Chapter 23
Mediating International Commercial Disputes: Differences in U.S. and European Approaches
David J.A. Cairns

Chapter 24
ICDR Offers Concurrent Mediation/Arbitration Clause
Steven K. Andersen

Chapter 25
Mediating International Environmental Tort Claims in the Shadow of the Alien Tort Claims Act
William G. Bassler and Yitzchok Segal

PART VI: Investment and Trade Arbitration and Mediation

Chapter 26
10 Golden Rules for U.S. Investors to Follow in Dispute Resolution Negotiations a Foreign State or State Entity
Arif H. Ali and Baiju S. Vasani

Chapter 27
Bilateral Investment Treaties and Arbitration
Dana H. Freyer and Barry H. Garfinkel

Chapter 28
Saving Time and Money in Cross-Border
Commercial Disputes
Walter G. Gans

Chapter 29
An Examination of GATT/WTO Arbitration Procedures
Georgios I. Zekos

Chapter 30
The ABCs of WTO Dispute Settlement
Karim Sarhan

Chapter 31
WTO & ADR
Frank W. Swacker, Kenneth R. Redden & Larry B. Wenger

Chapter 32
Investment Treaty Arbitration's Contribution to International Commercial Arbitration
Barton Legum

Chapter 33
Investor Protection and Legal Security in International Arbitration
Bernardo M.Cremades

Chapter 34
Amicus Intervention in Investor-State Arbitration
Jorge E. Viñuales and Florian Grisel

Chapter 35
Developments in NAFTA Arbitration - From Jury Verdicts to Amicus Briefs
John M. Townsend

Index

Author Detail:

Since 2002 Walter G. Gans has served as a fulltime arbitrator and mediator for international commercial and sports disputes based in New York. He is a former Special Counsel at Kaye Scholer L.L.P., New York, and the former vice president, general counsel, and secretary of Siemens Corporation. He holds a B.A. from Bowdoin College and a J.D. and L.L.M. from New York University.