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EA is distributed free of charge, via the Internet, to interested members of the arbitral community.
News and details of forthcoming events are
particularly welcome. These and subscription requests should be addressed
EUROPEAN ARBITRATION, EA and interarb are the trade marks of the publisher, the entire contents of EUROPEAN ARBITRATION are the copyright of the publisher and individual contributors. Conditions allowing for not-for-profit, electronic redistribution and storage of the material are given in each issue.
&nbssp; * *
* EUROPEAN *
* ARBITRATION *
* issue 33. *
October 16th, 1998.
Publisher Michael Chapman.
1. Talking Point.
2. Diary of Events.
4. News items.
1. TALKING POINT.
Arbitration and the Internet. the Internet.
We have frequently declared an editorial policy of not being dominated by our medium of publication. European Arbitration should be no more obsessed by the Internet than a daily broadsheet is by woodpulp chemistry. (That said the broadsheets seem obsessed by the Internet!)
News leads in its own directions though, and this issue is dominated by happenings on the Internet. There are now extensive web-page based guides to arbitration available (in particular from Marianne Roth and from Serge Braudo). The LCIA has published (in 'Arbitration International') a paper guide to web-based arbitral material (with a simultaneously published version on floppy disc), by Rosabel Goodman-Everard.
We also report on a (free) arbitration service offered (in French as well as English) by the Quebec based 'CyberTribunal'.
The rise of the non-English language sources cited in EA, do mean that the much promised 'reader questionnaire' will be coming sooner, rather than later. We need a richer typeface than plain-ASCII to represent accented letters. A richer typeface would also allow for diary and directory entries to be in a different colour on their first appearance (or modification). We are though committed to ensuring the universal readabili universal readability of EA (having with this issue our first subscriber from Africa we now cover every continent: Asia, Africa, North, Central and South America ... as well as Europe). The current mailing list would though justify the simultaneous publication of a 'rich' issue and a plain-ASCII issue, so no one will be deserted!
All is not electronic though, we also report in this issue on an innovative paper publication (by Neil Aitken and Charles Sprazgge) giving a detailed view of arbitration in Central and Eastern Europe.
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 localbe 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.
Oct. 17 LCIA Pan-African Council.
Harare, Zimbabwe. Jointly with:
Commercial Arbitration Centre, Harare & Zimbabwe Arb.Assoc.
Oct. 20-22 Three day arbitration conference.
Central European University, Budapest.
Oct. 23-25 European Branch CIArb, Biannual Meeting. Budapest.
Contact Eugen Salpius firstname.lastname@example.org
Oct. 23 Conflict Studies: The New
Generation of Ideas. Second Annual
Graduate Student Conference on Dispute Resolution and Related
Topics. Boston, USA. Send postal address to
Oct. 29 Nineteenth Annual Meeting
of the Institute of World Business
Law. 'Forging trust in electronic commerce: law and dispute
resolution.' Hotel Prince de Galles Paris.
Oct. 30 Fifteenth Annual Joint AAA/ICC/ICSID Colloquium. ' Hotel
Prince de Galles Paris. Details: ICC.
Nov. 6-7 International Commercial Dispute
Resolution. A conference at
Southern Methodist University Dallas (Texas) sponsored by
ASIL's Interest Group on Dispute Resolution. Contact:
Sandra Liebel, Amer.Soc. of Int'l Law, fax 00+1-202-797-7133
Nov. 10, Freshfields Arbitration Lecture,s Arbitration Lecture,
London. "Does the world need
additional uniform legislation?" Dr Gerold Herrmann, Secretary
Nov. 10 Goff Lecture, Hong Kong: Professor
Nov. 11-12 International Arbitration Conference, Hong Kong. ICC /
CIArb / HKIA / CIETAC / CMAC / IPBA / IMB.
Contact Christopher To at HKIAC.
Nov. 12 Fourth Young Arbitration Practitioners'
Dusseldorf. Contact Irene Bates, LCIA, .
Nov. 13 Second IBA International Arbitration Day. Dusseldorf, Germany.
IBA, ICC, LCIA & DIS. Long-term construction and infra-
structure projects. &nbs Contact IBA (email@example.com).
Nov. 14 Traditional-style LCIA symposium, Dusseldorf.
Nov. 26-27 IWBL, International Arbitration Practice Workshop. Paris.
Dec. 2-3 Geneva Global Arbitration Forum. firstname.lastname@example.org
Dec. 7-9 Liability & Damages in Int'l
Comm. Contracts. at the LSE,
London. 'The Legal Workshop', fax +44 181 505 0022
Dec. 7-11 PIDA XXXIV. Study based on a mock arbitration
1988 ICC Rules. Paris. email@example.com
Jan. 15-17 ASA, DIS & LCIA, Practice Building Seminar, Badenweiler,
Germany. Contact: Fr.Loechner, DIS, fax 00+49-22.214.171.124
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:
LCIA (London) t: 004; (London) t: 00441-719.363.530, f: 00441-719.363.533
The next 'full' Directory appears in EA35 (and the last was in EA32). This edition's contains contact details for bodies mentioned in the Diary, new entrants, amended entries, etc.
The Alternative Newsletter
La Conciliation, la Mediation et l'arbitrage:
for a commentary on the Serge Braudo sites, see below.
Prof.Dr. Marianne Roth (Christian-Albrechts-Universitaet, D-Kiel)
International Commercial Arbitration
American Arbitration Association
CIArb: Chartered Institute of Arbitrators (London)
Danish Institute of Arbitration
Estonian Chamber of Commerce
IBA: International Bar Association
ICC: International Chamber of Commerce (Paris)
Institute of World Business Law, see ICC (Paris).
Lebanese Review of Arab and International Arbitration.
Milan Chamber of Arbitration
PIDA (Programme de l'Institut de Dix Ans) of the ICC, Paris.
Zurich Chamber of Commerce:
4. NEWS ITEMS
Arbitration clause not unconscionable, but 'ICC forum' was.
In Brower v. Gateway 2000 Inc. (N.Y.A.D. August 13 1198):
G sold computers by mail order. B received one with 'Standard Terms and Conditions' of sale which became binding if the customer kept the computer beyond thirty days.
The ST&C's contained an arbitration clause specifying ICC rules and Chicago. (These would require a USD deposit of 2,000 to lodge any small claim (up tony small claim (up to USD 50,000).)
Court rejected that the contract was one of adhesion, rejected that the arbitration clause within that contract was unconscionable, but held the forum clause only as unconscionable as the excessive costs would deter consumers from invoking arbitration. (see Westlaw 1998 WL 481066)
Arbitration information on the Web:
Professor Marianne Roth's site is described (not by her, but by the university's webmaster) as currently the most exhaustive link collection on the web. http://www.uni-kiel.de/zivilrecht/roth/engl_links.htm
"Blood and money" ... well at least 'drugs and money'.
Your editor spends many of his daylight hours in what is known as 'regulatory affairs'. The registration of pharmaceuticals to allow their marketing in different jurisdictions.
The pharmaceutical industry is peculiarly, if not unexpectedly, secretive about its goings-on. It obviously has its disputes, but these can usually be negotiated through. Some of those that cannot end up before an arbitral tribunal. They would make a good 'advert' for arbitration, if only the stories could be told. Certainly a counter-blast to the promiscuous complaints heard about the construction disputes. Construction disputes, howuction disputes, however they go, always seem to be open knowledge.
So it was with interest that I noted the public announcement by Hoechst Marion Roussel Inc. (a filial of Hoechst AG) that it had served a request for arbitration in the United States (on September 28th). The dispute concerned a licensing agreement with Alliance Pharmaceutical Corporation. Hoechst were seeking close to 17 million dollars (plus interest, plus punitive damages) in relation to the events surrounding the termination of the agreement.
The licence agreement was terminated in December 1997, and HMRI president for North America, Gerald Belle, claimed "all our dispute resolution initiatives to date have been unsuccessful".
The public nature of the battle was highlighted (or increased?) by Alliance's CEO in their own press release. Duane Roth stated "It is interesting that HMRI would use its own argumentative pleading in an arbitration proceeding as the basis for a press release to impugn the reputation of Alliance. Tellingly, at no time previously did HMRI make any claim or even suggestion as to any supposed 'misrepresentations'" by Alliance. ..."
Will the appointment of a tribunal ... if it gets that far ... restore decorum, or is this a new style of semi-public-arbitration?
If that was not enough, at the same period the Wall Street
Journal claimed that Johnson &amed that Johnson & Johnson and Amgen were engaged in an
arbitration in Chicago (issue of 30/9/98). Reportedly in the mid-Eighties
the relatively new Amgen exchanged backing from J&J for extensive rights.
Some claim the situation has been a feud ever since.
I make no apology for returning to these sites, and giving the author's own description of the purpose of each, and an overview of their content.
"Concerning arbitration, I posted two programs :
called: "La conciliation, la mediation et l'arbitrage" (Conciliation, Mediation and Arbitration)
It is a general study about alternatives to court proceedings in dispute resolution.
This site contains a bibliography of the most recent articles on Arbitration , addresses of the most important Arbitration Centres in France, in Europe and elsewhere , texts of the French Laws on arbitration and mediation, explanations on French arbitration law, and a great number of links.
The site is lodged by the University of Nancy-2 (France) .
Named " L'arbitrage", is devoted to the practice of arbitration. Some of the texts are linked to the "La Conciliainked to the "La Conciliation, la Mediation....".
On this site are model rules for ad-hoc arbitration, French case law (and commentaries for some cases), two studies: one on exequatur (the enforcement of sentences pronounced in France), the other on arbitrators nominated as amiable compositeurs, links to EA, to Foreign Counsel Worldwide and to the site of Robert M.SMITH Esq.
Named: "Dictionnaire du Droit Privé"(Dictionary of Private Law"). This program is a French Law Dictionary. One can find in it an explanation
on the meaning of the French Law (particularly on Arbitration, Arbitrators, Mediation, Sentence, Exequatur ...) and judicial institutions (the French Courts, judges, judgements, enforcement of judgements, barristers, lawyers, notaries..). The words are classified in alphabetical order. An index is permanently visible during consultation.
All the texts of theses sites are written in French."
"Sources for the History of Arbitration", Derek Roebuck. Arbitration International 14(3), 237-343. A monumental contribution to the study of the history of arbitration by Professor Roebuck. Also provided on an accompanying 3.5" disc, in WordPerfect 5.1.
"Arbitration in CyberrsArbitration in Cyberrspace - An Off-line, Low-tech Guide for Compucowards", Rosabel Goodman-Everard ( mailto:firstname.lastname@example.org ). Arbitration International 14(3), 345-358. This not only provides some interesting new material, but rather exceptionally gives links to specific pages within web-sites, rather than (as I have been guilty of) dropping you off 'at the front door, like a badly tipped taxi driver leaving you in the rain, on the doorstep, hopefully ringing the front door bell'! Also provided on an accompanying 3.5" disc, in WordPerfect 7.0 (to allow use of hyperlinks).
New Belgium Arbitration Law.
Serge Braudo has posted this at:
"The Yearbook 1996", Arbitration Institute of the Stockholm Chamber
of Commerce, 45 pages. Includes articles on Russian arbitration
procedure (Zykin) and Russian arbitration clauses (Kostin). 350 Swedish
Kroner (SEK 350).
"The Yearbook 1997", 84 pages. Includes articles on applicable law
(Mayer), CIETAC (Jianlin), competition law (Dhuner), the 'Emja'
Case ('assignee bound to arbitrate', Jarvin) and the Ukraine
(Slipachuk). 425 Swedish Kroner (SEK 425).
"The Institute's Rules", free of charge. Specify whether Swedish,
English, Chinese, French, German or Russian edition required.
"The Institute's Brochure" a new leaflet is available, free of charge.
Specify whether English, French, German or Russian edition required.
For all of above mailto:email@example.com (Christina Franzen-Papazov).
"Construction & Engineering Law" is published six times a year (20
A4 pages per issue) at GBP99 p.a., describes itself as having a "New
Journal format for the latest in Cross Professional Thinking", and
is offering 2 free trial issues to those interested in subscribing
. Contact CLT Professional Publishing fax +44 121 355 5517.
A Guide to Arbitration and Litigation in Central and Eastern Europe.
Neil Aitken and Charles Spragge. 144 pages, A5. Cameron McKenna,
-------------------------------- London. ISBN 0 9533867 0 8.
A refreshing new book, in a refreshing new style (and at a refreshing price, but more of that later).
Cameron McKenna's are one of the big law practices in the City (London). Two of their senior staff have their senior staff have set out to produce a guide to dispute resolution options in Central and Eastern Europe. The geographic scope is limited, but for good reason. CMcK have offices in Prague, Budapest, Warsaw and Moscow. The book confines itself to areas where the practice has obvious expertise.
The style is simple: "The job of business lawyers is to make deals work. By ensuring that the contract makes sensible provision for the resolution of disputes, deals have a better chance of success." But readability is not gained at the expense of becoming trite. Most noteworthy to me, the authors set out in a mere four pages to compare civil and common law systems. The subject could easily have been ignored and the country-by-country analysis begun. But what, to my mind, is a lucid explanation is given. This, without on the one hand trying to make the situation black and white, merely to allow tabulation of differences ("In reality, the distinction is far from clear-cut and most modern legal systems contain elements of both styles."), and yet still coming out with some sound practical points.
The country sections follow a similarly informative style (and occupy most of the book, pages 26-140). Firstly the background to the current legal system is discussed in historical context. Then the current legal system is described. Thirdly the procedures and systems for arbitration within that country are described. Lastly a sectribed. Lastly a section details the permanent arbitration bodies that exist in each country.
This journal has commented previously on the tendency, either from sloth, from over-work, or just perhaps from the feeling that someone might steal the crust from one's mouth ... the tendency by some senior practitioners (let alone institutions) to not pass their knowledge on to the next generation. This book is a refreshing change. That the same firm are talking of a companion volume on Western Europe is even more intriguing.
The price, by the way, is GBP 9-99 plus delivery. The latter is GBP 1-50 in the UK and GBP 3-00 overseas (for second and additional copies GBP 1 and GBP 1-50 respectively). Orders to Suchen Debling, Cameron McKenna, 160 Aldersgate Street, London EC1A 4DD ( mailto:firstname.lastname@example.org ).
One quibble, would be the cost/difficulty of transferring a mere ten or twelve pounds to London ... a facility to pay by mail order use of Visa / MasterCard would have been an advantage for the non-Brit's.
"CyberTribunal is [in its own words] an experimental project, developed by the Centre de recherche en droit public (CDRP), targeting the establishment of an innovative service for the prevention and resolution of conflicts arising in cyberspace. ... this CRDP project should be useful for arbitration services in the real world. In othhe real world. In other words the technology perfected for the CyberTribunal project could also be used to complement arbitration taking place in the physical world. ... employ this technology to accelerate the arbitration process and reduce its cost."
Currently mediation and arbitration services are offered free of charge "to all cybernauts".
CRDP is based in Montreal and describes CyberTribunal as "the first French-language virtual arbitration organisation". (In effect, it appears to be at least bi-lingual.)
Pulling no punches it compares its own services with the 'Virtual Magistrate' project that took place in the USA. CyberTribunal's field of application is wider. It will not issue decisions on issues of a public nature. It will deal only with issues concerning new information technology law. Mediation is also favoured over any adjudicative procedure.
Frances Turton, Chief Executive Officer of The Arbitration Foundation of Southern Africa (AFSA) was killed in a road accident in South Africa in the week of September 20th. Following qualification in law from Pretoria she worked there as a lecturer in the faculty from 1991, joining the Alternative Dispute Resolution Association of SA (ADRASA) as Exn of SA (ADRASA) as Executive Director in 1995. In June 1996 she became CEO of the new AFSA constituted from previous arbitral bodies.
South Africa and arbitration has been robbed of a young, dynamic personality who had much to contribute to the development of arbitration in what are the rapidly changing commercial environments of sub-Saharan Africa.
From: serge braudo <email@example.com>
Subject: enforcement of foreign awards
Is there a country of which the Law authorises foreign
awards to be
set in force without been submitted to a prior judicial or administrative
recognition and enforcement .
This kind of enforcement "de plano" can be the result of a
bilateral or pluri-lateral Convention : have you ever heard of such a
Convention? And in what country ?
Thanks for help.
Serge Braudo ,Conseiller honoraire C.A Versailles
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