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
Media Description:
1 PDF Download
Published:
August, 2015
Description:
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.
represented by excellent and experienced counsel.