EA25

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                                                       February 27th, 1998.

                                                 Publisher Michael Chapman.
                                                  mchapman@zen.dedal.fr.net
 

1. Talking Point.
2. Diary of Events.
3. Directory.
4. News items.
5.  Internet related News and Comment.
 
 

1.  TALKING POINT.

Once, some years ago, before health spending was so rigorously controlled (befly controlled (before research budgets were so controlled as well, one suspects) some happy researchers set out to investigate the price of hospital treatment in the United States. They chose only discrete towns. Only towns with one hospital, or with two hospitals. They compared prices.
'Market forces' should of course lead to competition in two-hospital-towns. Lead to lower prices.
The result showed just the opposite. Competition between hospitals was manifested in buying more and more equipment, providing more and more services, in ... well you can guess. The perverse effect was because hospital choice was made by general practitioners, who naturally wanted the best for their patients ; and, the payment for hospital services was made not by the GPs, often not by the patients even, but by the insurers.
The same survey compared 'outcomes' and noted no discernible difference between the well- ( ?over-) equipped towns, and the solo hospitals.
Market forces worked as per any more sophisticated model, but to convolute procedures and to drive up prices.
We will -of course- return to matters relevant to arbitration next issue.
                                                                         EA

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2. DIARY OF EVENTS:

 All contributions to this DIARY are welcome. It is both for the individual arbitrator and for those who plan meetings.
 Generally, listed meetings will be at least half-day and usually full day events. Evening meetings are likely to be only of local interest.
 The emphasis is European: However to help in scheduling, major world events are listed.

                PLEASE see important note below,
                 before using any of this info.

1998:
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Mar. 13      LCIA North-American Council. Joint conference with AAA.
Mar. 14      LCIA North American Council Symposium.     Miami.

May 4-6      ICCA Biennial Conference, Paris.  fax: 00+46-8-723.0176.

May 8-10     LCIA European Council Symposium. Tylney Hall, England.

May 15-17    European Branch CIArb. Biannual Conference.
             Annecy.   Michele Patocchi, fax +41.22.319.0600.

June 3-6     CIArb.  Birmingham.

June 23-24   WIPO Workshops for Mediators in Intellectual
June 25-26   Property Disputes. Geneva.

July 21-24   'Internet Dispute Resolution Mechanisms' and 'Resolution of
             Domain Name Disputes'. parts of Track 2 (social, legal,
             regulatory). Internet Conference, Geneva.
             http://www.isoc.org/inet98/

Sept. 6-11   CEDR. International Summer School.
             Vevey, Switzerland.   fax: 00+44-171481.4442.

Sept.12-13   LCIA North American Council Symposium.  Vancouver.

(October)    LCIA Pan-African Council. Harare, Zimbabwe.

(October)    Er)    European Branch CIArb.  Budapest.
             Contact Eugen Salpius   fax +43.662.633.0033.

Oct.15-17    SPIDR Annual Int'l Conference. Portland, Oregon, USA.

Nov. 13      Second IBA International Arbitration Day. Dusseldorf, Germany.
             IBA/ICC/LCIA/DIS.  Construction and infra-structure projects.
 

Please CONFIRM all details directly with organisers, the above material is drawn from various sources and should not be relied on by itself(!).
 

contact details for frequently  cited organisations:
---------------
CIArb  see Internet Directory below.
       EXCEPT CIArb Branch meetings: contact person named in the Diary.
LCIA   (London)  t: 00441-719.363.530, f: 00441-719.363.533

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3.  DIRECTORY:
The next 'full' Directory appears in EA27 (and the last was in EA24). This edition's contains contact details for bodies mentioned in the Diarys mentioned in the Diary, new entrants, amended entries, etc.

American Arbitration Association
         Homepage:  http://www.adr.org

CIArb:   E-mail:    71411.2735@compuserve.com
         Homepage:  http://www.arbitrators.org

European Arbitration:
         E-mail:    mchapman@zen.dedal.fr.net

IBA:     International Bar Association
         E-mail:    confs@int-bar.org

Kluwer Law International 'Arbitration Site'
         Homepage:  http://www.kluwerlaw.com

LCIA:    Homepage:  http://www.lcia-arbitration.com

SPIDR    E-mail:    spidr@igc.apc.org
         Homepage:  http://www.spidr.org

WIPO     E-mail:    arbiter.mail@wipo.int
         Homepage:  http://www.wipo.int
 

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4.  NEWS ITEMS

Publications:
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  'The Commercial Way to Justice; The 1996 International Conference of the Chartered Institute of Arbitrators.' G.M. Beresford Hartwell(ed.), December 1997, Kluwer, ISBN: 90-411-0478-X, Hb, 200.00 NGL, 114.00 USD, 68.00 GBP.
  'Yearbook on Commercial Arbitration, Volume XXII, 1997'. A.J. van den Berg (ed), November 1997, Kluwer, ISBN: 90-411-0432-1, Pbk, 335.00 NGL, 208.00 USD, 131.00 GBP.
  'Arbitration Site' Kluwer Law International.
Kluwer offer a site via their homepage (http://www.kluwerlaw.com). The publishers state they are currently developing a comprehensive database of arbitration material. This will include the full texts of arbitration treaties, legislation, rules, case law and commentaries. It will be supplemented by an extensive bibliography.
Full launch is scheduled for this Autumn.
Currently the site shows extracts from the database, as well as an annotated version of the New York Convention.

United States Court decision:
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The following is reproduced, with thanks, from The International Computer
    Law Observer (February, 1998, No.3). ICLO is an e-mail
    repo    report providing monthly coverage of significant legal
    developments from around the world relating to computers,
    technology and the Internet. Back issues and a listing of the
    Editorial Board can be found at http://www.lawcircle.com/observer .
"[BOTTOM LINE]  US COURTS ARE TO REVIEW ARBITRATION AWARDS UNDER
  THE STANDARDS CHOSEN BY THE PARTIES
[WHAT HAPPENED]  US District Court in California had refused to  review an
  arbitral award under the review standards (substantial  evidence and
  errors of law) agreed upon by the parties in their  contract's
  arbitration clause, finding that it could review only  under the standard
  set forth in the U.S. Federal Arbitration Act  ("FAA") (manifest
  disregard of the law).
  On appeal, in Lapine Technology v. Kyocera, the U.S. 9th Circuit  Court
  of Appeals disagreed saying that the FAA was enacted was  to ensure
  enforcement of private agreements to arbitrate in  accordance with the
  agreements' terms. The Court said that the  parties are generally free to
  structure their arbitration  agree their arbitration  agreements as they see fit including the
  rules under which that  arbitration will be conducted.  This 9th Circuit
  panel stated  its agreement with a 1995 decision by the 5th Circuit,
  Gateway Tech. v. MCI, which reached the same result.
  The appellate panel also noted that, while the arbitration was
  contractually agreed to be held under the rules of the ICC which  provide
  for finality of the arbitration award and waiver of  judicial review, a
  contrary provision in the contract overrides  those rules.
[WHY IT HAPPENED]  The FAA was enacted to counter the historic
  unwillingness of the federal courts to enforce parties'  agreements to
  arbitrate.  It sets rules and standards for such  review which this
  decision and others hold to be default  standards only.  (It should be
  noted that the FAA does not create  jurisdiction for review of arbitral
  awards in the federal courts.   The courts may review awards only if they
  would have had  jurisdiction over the parties and the dispute absent
  arbitration.)
[THE SIGNIFICANCE]  Parties to licensesCE]  Parties to licenses and other contracts often are
  unsure about the type of judicial review they can obtain in the United
  States and may forego use of arbitration as a result. This appellate
  decision makes it clear that federal courts should honor whatever
  standard of review the parties agreed was best  suited to their contract.
  In the absence of any agreement, the  courts will apply the minimal
  standard of the FAA:  that an award  will be upheld unless (as the
  Supreme Court stated) it is  "completely irrational."
[INFORMATION SOURCES]:  For the 9th Circuit's Opinion in
  Lapine Technology Corp. v. Kyocera Corp., see:
  http://www.vcilp.org/Fed-Ct/Circuit/9th/opinions/9615319.htm
  For the 5th Circuit's Opinion in Gateway Tech. v. MCI, see:
  http://www.ca5.uscourts.gov/Opinions/Pub/93/1000/93-01101-cv0.htm
[CONTRIBUTING EDITOR]  Chadbourne & Parke, Contact:  Barry  Nemmers
  barry.nemmers@chadbourne.com "
 

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5.  INTERNET RELATED NEWS AND COMMENT:
 see also details of the Kluwer 'arbitration site' under
'Publications' in the previous section.

Electronic Dispute Resolution:
------------------------------
A deliberately ambiguous title to note two recent papers, both are published in the 'Journal of International Arbitration' 'ISSN 0255-8106), September 1997, vol.14, issue 3.
     Michael Schneider and Christopher Kuner discuss 'Dispute Resolution in International Electronic Commerce' (on pages 5 to 37). After an extensive review of the background and developments in this field, they (p.32- ) describe a 'model dispute resolution system for electronic commerce'. The model is multi-tier and flexible. There is a summary procedure before a mediator. If either party is not satisfied then an appellate procedure would operate.
The 'mediator' would not only mediate but make decisions. Independence could be strengthened by security of tenure, or by allowing consumer bodies a say in appointments.
Simplified arbitration is suggested as one option for the appellate procedure. This could be on-line.
They argue that the wholesale transfer of dispute resolution to private tribunals might hinder the development of the law. In a developing area such as this tribunals not only apply, but make, the law. The possibilityhe law. The possibility of devising a mechanism for tribunals to refer new questions of law is raised (and the old English 'special case' system mentioned).
     Jasna Arsic asks 'International Commercial Arbitration and the Internet - Has the Future Come Too Early,' (on pages 209 to 221). She introduces her paper by a review of the factual background: e-mail, 'chat rooms' for hearings, teleconferencing by internet, digital signatures, and digital notarisation (including authoritative dating of documents).
The problems arising from the formal requirements of arbitration are then discussed. In particular the requirements for a written agreement and requirements for (written) signatures. This reviewer would note that signatures on an agreement to arbitrate are specifically not required under English law. A situation 'allowed' it is said, not least, to accommodate so called salvage contracts. Thus the author's further discussion of whether there will continue to be a need for a formal arbitral award with manuscript signatures is of particular interest. Following a discussion on the place of arbitration, the author concludes with a timely comment on harmonisation of laws. If laws are not harmonised for electronic commerce, then " a new wave of 'forum shopping' will emerge -one arising from 'cyber shopping'- shopping for a jurisdiction which will be friendly to doing business, including arbitrationncluding arbitration, on the Internet. "

(See also the 'Diary' for July: Sessions at the Internet Conference, will touch on dispute settlement.)
 

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