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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.
&nbsbsp; * *
* EUROPEAN *
* ARBITRATION *
* issue 34. *
November 6th, 1998.
Publisher Michael Chapman.
1. Talking Point.
2. Diary of Events.
4. News items.
5. Internet related News and Comment.
1. TALKING POINT.
Anbsp; Arbitration and the Pharmaceutical
The small piece, about two arbitrations related to
the pharmaceutical industry, in EA33, caused some comment and I hoped some
background might be of interest.
The industry tends to divide itself into 'research based' and 'not'. The latter is thriving, and often very innovative as to how to market drugs. The 'research based' end is though engaged in the quest for NCE's (new chemical entities) over which they will enjoy patent and/or governmental licensing monopolies for a discrete period of time. The figures thrown around for the likelihood of a new chemical ever reaching the market are though sobering. For every 10,000 new molecules synthesised, 1,000 will proceed to secondary screening, of those only ten will be the subject of trials in man, of which one may finally be marketed.
Hence the wave of recent mergers. A 'Viagra' can keep you going, and thriving, for a decade or so, every company is in the quest for the next one. The situation was rapidly developing where companies were hitting about one major income source compound every ten years. The logic is harsh: One at a time is continuing success, two is unbelievable success, but zero is the end. There are no half way houses between one and zero.etween one and zero. So bigger companies (by merger) should be a solution.
Whilst all that has been happening technology has itself moved on, and a host of smaller companies have entered the market developing potential products in specialised fields. How to fund long term research is the problem. Hence the problems of British Biotechnology (who chose the market route) and the problems alleged in one of the cases reviewed in EA33. Allowing a big company to support the little company's research is a gamble on both sides: If the results do not materialise, or if they are better than expected, one or other party is going to be unhappy. Any dispute will be a classic commercial 'partnership' dispute, with the initial disproportionate negotiating strengths of the parties compounded by the extremely long-lead time of pharmaceutical projects.
Due to market segmentation by product category (even a major company may not, for example, have any dermatological products, but may have discovered a potential product) or geographically, the other main area of potential disputes again is 'classic commercial': involving distributorships, licensing, etc. (again as illustrated by one of the two cases in the last issue).
Theoretically the development process (stretching over several years) using as it often does contract laboratories for toxicological testing, contract houses for mantract houses for managing clinical trials, various consultancy practices, etc. ought (like building projects) to be ripe for complex disputes (running into sub-contracting as well as simple contractual relationships). Experience says that such disputes are relatively rare. One reason, perhaps, compared with construction, is the lesser desire to 'change the plans' mid-project, let alone the reluctance of governmental authorities to accept data from projects that have not run to procedures that were well documented in advance.
The final area that has been rumoured for 'take off' for some years is patient claims for negligence. Claims in court are though most often brought against the prescriber and not the manufacturer. Without extensive funding for plaintiffs it seems unlikely that that target will be widened.
So the two cases probably are typical. Pharmaceutical projects are very long-term compared with most other hi-tech developments. Disputes tend to follow classic commercial patterns, distinguished most by the confidentiality which surrounds them (and everything else!) in the industry.
But that is but one view from one desk ... if anyone has other experiences to share do please write in.
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.
Nov. 10, Freshfields Arbitration Lecture,
London. "Does the world need
additional uniform legislation?" Dr Gerold Herrmann, Secretary mann, 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. Contact IBA (firstname.lastname@example.org).
Nov. 14 Traditional-style LCIA symposium, Dusseldorf.
Nov. 26-27 IWBL, Int7 IWBL, International Arbitration Practice Workshop. Paris.
Dec. 2-3 7th Geneva Global Arbitration Forum.
'Settling Disputes on a Shrinking Planet'
Dec. 7-11 PIDA XXXIV. Study based on a mock arbitration
1988 ICC Rules. Paris. email@example.com
Dec. 18 ICC's Second Asian Arbitrators'
Colloquium (Ethical Issues
in Arbitration Practice). New Delhi. Invitation only (but
subject to space applications for tickets welcome).
Jan. 15-17 ASA, DIS & LCIA, Practice Building Seminar, Badenweiler,
Germany. Contact: Fr.Loechner, DIS, fax 00+49-18.104.22.168
Jan 22 ASA Conference "The Claims
Resolution Process for Dormant
Process for Dormant
Accounts in Switzerland", Zurich. mailto:WZEP@PGPZH.CH
Feb. 17-20 CIArb, Conference. Cancun, Mexico.
Mar. 1-5 XIIIth Meeting. International Congress
fax Convention Management Services on: +64-9.360.1980
March 19 Second Joint AAA/LCIA Conference
('Consent in Arbitration:
Reality or Illusion?') London. Contact: LCIA.
March 23rd LCIA Pan-African Council. 'Arbitration and
May 17 Conference of the [state]
members of the Permanent
Court of Arbitration, The Hague.
May 18-19 THIRD HAGUE (Governmental) CONFERENCE,
Centenary of the First Conference.
Sept.24-26 LCIA European Council Symposium. Barcelona/
Sept. 26 - IBA Conference, Barcelona.
Nov. 17-18 CIArb, Millennium Conference. QEII Conference
Please CONFIRM all details directly with organisers, the above material is drawn from various sources and should not be relied on by itself(!).
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
& L'arbitrage: http://www.club-internet.fr/perso/sbraudo/
La Conciliation, la Mediation et l'arbitrage:
Kluwer Law International 'Arbitration Site'
Prof.Dr. Marianne Roth (Christian-Albrechts-Universitaet, D-Kiel)
International Commercial Arbitration
ASA (Swiss Arbitration Association)
President's Secretary; Waltraud Zepf
CIArb: Chartered Institute of Arbitrators (London)
Danish Institute of Arbitration
HKIAC Hong Kong International Arbitration Centre
ICC: International Chamber of Commerce (Paris)
President, Michael Hollering
JCAA Japanese Commercial Arbitration Association
Lebanese Review of Arab and International Arbitration.
Milan Chamber of Arbitration
Qingdao International Arbitration Commission (Shandong Province)
Zurich Chamber of Commerce:
4. NEWS ITEMS
The Alternative Newsletter:
If anyone wants convincing that a paper publication is more readily scanned by the eye, and allows more rapid access to more information (in more diverse places than just at the desk) then they should compare EA with our 'competitor'. (EA's raison d'etre has always been its frequency and the currency of it diary.)
The latest issue sixty-five pages of news, comment, book reviews, diary of events, etc. All for USD 15 a year.
The reason for this note was not journalistic mutual congratulation, but to reproduce a paragraph from Jim Boskey's opening editorial:
"As long as I have the editorial space, I would like to invite all readers to spread the word and work of The Alternative Newsletter by informing their colleagues and trainees of its existence and availability both in hard copy and on the web. If you are running a meeting or offering training in ADR and would like copies of the current issue to distribute to your attendees or trainees, contact the editor with a mailing address and a number of copies and I will do my best (within reasonable financial constraints) to oblige."
I think the latter must include the requester offering a contquester offering a contribution to postage *outside* the United States, mailto:Mistofoles@aol.com
Holding of 'database' information:
EA made the offer some time ago to host information for readers (or others) that was not easily publishable in the conventional sense. We had interesting discussions with one colleague who had a database of a special subset of arbitrators that had not found favour for print publication, but in the end the information was not that readily available.
That offer was for hosting by 'ftp' (file transfer protocol) a very good system but one that with the web and e-mail becomes (proportionately) less and less known.
The offer is in any event renewed.
EA has a very basic webpage, it would be easy to host information as sub-pages from that.
We also have the ability to send material as automated replies to e-mail requests. (See a description of the revised service in section5, below.)
Is there a wealth of worthy, but commercially unpublishable information out there? If you feel so and you are sitting on something you would like to share, do get in touch. ( mailto:firstname.lastname@example.org )
A new, refereed, electronic quarterly, the "Electronic Journal of Comparative Law", at http://law.kub.nl/ejcl/ mailt//law.kub.nl/ejcl/ mailto:email@example.com
Nothing on arbitration is volume 1, issue 1 but they are soliciting contributions.
"Le reglement amiable des litiges", Nabil N. Antaki.
454 pp., 65 dollars + 10 shipping. ISBN 2 89451 284 8. Les Editions Yvon
Blais, Inc., Quebec.
"Internet" edited by Boele-Woelki and Kessedjian. Kluwer, 1998, 208pp. ISBN 90-411-1036-4. NLG 115. A collection of seven papers from a Utrecht conference of June 1997, on the seemingly perennial questions of jurisdiction and of applicable law. EA has not seen a copy, but except for a niche of the legal community, the feeling here is that the debate has (or ought to have) moved on from undergraduate discussions of PIL to issues specific to the Internet ... let alone, that publishing conference proceedings about the Internet on paper, fifteen months after the conference took place is not to be recommended. That said the authors listed do contain some leading names and the contents should be better than the promotional text suggests.
"International Commercial Arbitration in Latin America", special supplement to ICA Bulletin. Covers 16 Latin American countries. ICC Publication 580. 126 pp. ISBN 92-842-1238-3. FRF 250 (+ 28 F surface, or 75 F air).
"The Status of the Arbitrator", special supplement to the ICA Bulleement to the ICA Bulletin. ICC Publication 564. ISBN 92-842-1218-9 (or in French 92-842-2218-4). FRF 250 (+ surcharges as above if you require delivery).
"Electronic Commerce in Practice", ICC Publication No 945 "over 190 pages". FRF 300 (+ 30 F surface, 60 F air).
"The Future of Copyright in a Digital Environment", ed Bernt Hugenholtz. ICC Publication No 941. 248 pp. ISBN 90-411-0267-1. 440 FRF (+ 66 F surface, or 132 F air).
"Yearbook Commercial Arbitration", ed A.J. van den Berg. Kluwer, ISBN: 90-411-1104-2. Softcover. Prices: 365 NLG, 198 USD, 124 UKP.
"Arbitration cd-rom." Kluwer, ISBN: 90-411-1072-0.
Price: Institutions: 3000 NLG, 1625 USD, 1020 UKP. Networks: 4500 NLG,
2435 USD, 1530 UKP.
Material on the CD includes: ICCA (International Council for Commercial Arbitration) Yearbooks from 1976 to present; ICCA Handbook including country reports and translations of arbitration acts; the journal 'Arbitration International', for the years 1993 to present; 'Journal of International Arbitration' from 1993 to present; and the Bibliography compiled by the Chamber of National and International Arbitration of Milan.
An exciting development, and whilst announced for publication this December, we are also informed that the product is currently undergoing "testing", and readers can benefit from a 15% discount until a 15% discount until the end of November (considering the price please confirm with Kluwer!).
It is early days for such products and easy to be critical. (The Kluwer arbitration website, for example seems unnecessarily 'focused' in its approach. It is not clear if the same team are responsible for the CD-ROM.) Whatever, to have ICCA yearbooks and the Handbook all electronically searchable most justify some of the price to many. It is not clear what provision will be made for updating the disc when the new Yearbook appears in 1999. (EA would welcome comments from readers who have used a copy in practice.)
5. INTERNET RELATED NEWS AND COMMENT:
European Arbitration Electronic Archive.
The following documents are now available :
To use this service send an e-mail
text: any one of the following phrases:
<help> an expanded version of these instructions is returned
<index EA> a listing of available back issues is returned
<get EA00> the current issue is p; the current issue is returned
<index interarb> a listing of available material (a list of lists)
<get UAR> returns the UNCITRAL Arbitration Rules
<get UAR-F> returns the UAR in French
<get UAR-E> returns the UAR in Spanish
<get UCR> returns the UNCITRAL Conciliation Rules
<get UCR-F returns the UCR in French
<get UCR-E> returns the UCR in Spanish
<get MAL> returns the UNCITRAL Model Arbitration Law
<get MAL-F> returns the MAL in French
<get MAL-E> returns the MAL in Spanish
<get MAL-en> returns UNCITRAL's explanatory notes on MAL
<get MAL-ne> returns the notes in French
<get MAL-nota> returns the notes in Spanish
<get NYC> returns the New York Convention
For most of our readers direct web access will be much easier. E-mail delivery is aimed at those who personally do not have full Internet access (this seems to apply in some big companies(!)) or who are from countries/areas without full access -or without access at high enough speeds to effectively use a browser. Anyone is though welcome to use the service. Allow a few hours for the response, and report any pronse, and report any problems to me.
If any readers know of, or have, text material suitable for adding to the archive, do please contact the Editor.
Arbitrating the Internet: Some thoughts provoked by the WIPO Training
------------------------ Programs on Domain Name Dispute Resolution
Procedures and the IWBL Paris meeting 'Forging
M.J.Chapman Trust in Electronic Commerce: Law and Dispute
Whatever is a challenge to mankind is undoubtedly an
opportunity for the law. So before deciding whether the Internet is an
'opportunity' for arbitration, it would perhaps be worth reflecting on
how much of a challenge it is to man. I will though, in what appears to
be the tradition of discussions such as these, leave that question until
The Internet provides some drastic qualitative changes. Everyone can now act globally. The new players will have international disputes and will not have the funwill not have the funds to pay the established systems. Many small businesses will be involved, many 'from home' businesses and certainly many with less than ten employees. Any DR system must be cheap and efficient. Though as Stewart Baker said at the Paris meeting, it is no good if it is "cheap, efficient, but wrong". It has been suggested that consumer confidence will tend to support the established arbitral bodies rather than the newer 'electronic' bodies, when it comes to selecting a name for an arbitration clause. Trust is proportionate to time and new bodies have a strong fight if they are to take on the world's international arbitration institutions. (The limited success of the Internet tribunals perhaps bears out such an argument.)
The question must be whether the established institutions will even wish to play the game. Or at least will wish to do so until it is almost too late. The example of IBM's failure to 'take on' the personal computer market was cited by comparison. But, equally, why 'downsize' the operation (in terms of service per arbitration, not in total institution size) when an established clientele exists for a 'Rolls Royce' service, is willing to pay for it, and more importantly expects it (and will search for it). (And, it must not be forgotten, that many of those who recommend DR clauses are indirect beneficiaries. The same system engages them if not as tribunal members, then at least qers, then at least quite frequently as advocates. Changing too soon can be just as fatal as not evolving at all!)
The 'odd man out' in all this is, though, WIPO. Well established and trusted but with no legacy of bespoke arbitrating, with an already fixed clientele. It has the decades of respectability that breed trust. Its 'Domain Name Dispute Resolution Procedure' offers an on-line dispute resolution system with WIPO acting as secretariat, collecting fees and all, electronically. The parties, the tribunal have access to a computerised system at WIPO and can exchange messages, facsimiles (and all other types of files: photographs, videos, sound ...). The system is established to deal with domain name disputes (where parties signing up for a domain name within one of the seven new Top Level Domains (TLDs) (.arts, .firm, .info, .nom, .rec, .shop, & .web) also sign up for the standard form dispute clause). It can, in principle, though be used for any dispute (whether connected with the Internet or not) as long -as ever- if both parties agree. Though WIPO do not seem to be canvassing for general use of a clause specifying the new system, it is here that the exciting possibility is.
The down side to WIPO's respectability is that it is undoubtedly seen by some as 'the establishment', particularly the establishment against the unrestricted 'sharing' (a.k.a. copyright theft) of informationeft) of information on the 'Net. WIPO is undoubtedly aware of this problem (and that is reflected in the security for the Domain Name Procedure). Indeed it can hardly have missed the 'alternative' domain name of WIPO.NET registered by a Netizen giving his (or her) name as "I don't like WIPO"! The problem should not be magnified. Concepts of IP are changing, indeed will have to change. (Indeed another often forgotten truism from the Paris meeting: When social practice has headed in one direction and the law the other -the it is usually the law that changes.) We cannot though live without IP rights, even if they are modified IP rights.
Which brings me back to the beginning. There is more, or ought to be more, to these debates than erudite exposes on jurisdiction and applicable law. I have heard nothing novel said about either of these two in relation to the Internet, just how to apply the established rules. For that very reason it does seem 'safe ground' for many speakers.
Even the domain name question has a Nineteenth Century analogy. It was possible to register 'telegraphic addresses' for telegrams. So that a telegram sent to "PRESS LONDON" (an economy for journalists) would be delivered, well to whichever paper 'bagged' the address first. (PRODROME SOME-CITY should still work for British embassies!)
The President of the ICC Institute of World Business Law, World Business Law, Serge Lazareff, responded to one question by suggesting that one's response to the hypothetical problem would be much the same as if one had bough some bad apples. Such common sense is needed! John Perry Barlow of the Electronic Frontier Foundation also queried if there was anything on the 'Net that glaringly needed fixing: If it ain't broke don't fix it!
Are there really opportunities? Well yes, but whether they are the things doctorates are made of, or just an enormously increased volume of the type of disputes that already arise with mail order or telephone sales will be the interesting question.
Date: Sat, 24 Oct 1998 16:20:18 -0700 (PDT)
From: Li-Kai Chen <firstname.lastname@example.org>
Subject: Arbitration v Litigation
Recent case law in the United Kingdom (Beaufort Developments (NI) Ltd v Gilbert Ash NI Ltd and Others) has overturned the controversial Northern Regional Health Authority v Derek Crouch Construction Ltd.
This chan This changes the previous position that Courts did not have the power conferred upon the Arbitrator to open up and review Certificates, save in cases of bad faith or excess of power.
This has led some commentators to suggest that this would lead to more arbitration
and less litigation.
What are the implications of this decision?
University of Central England
Date: Sun, 1 Nov 1998 20:22 +0000 (PST)
From: email@example.com (Cliff Dilloway)
I take your point of not being dominated by your medium of publication but material of the kind below cannot be sensibly discussed other than through the Internet. You have doubtless seen all the material submitted to the IFWP list and the way it is treated. I would rather consider the question from a arbitral standpoint. The material appears below.
GOVERNANCE BY SELF REGULATION IN THE INTERNET
JURISDICTION TO DEVELOP THE LAW OF THE INTERNET
Have you had cause to consider how some discipline might be exercised over the Internet. If so you will have realised that no country can exercise jurisdiction beyond it's own boundaries. There is much discussion but little prospect of action. Unless the Internet is made responsible for it's own self regulation. How that might be done is set out in the links from the Internet Notice below. Please be my guest.
An Internet Self Regulatory Process can be achieved through arbitration following an uncodified Law of the Internet. Published Reports on the diverse arbitral awards will evolve into a generally accepted Law of the Internet. One cannot expect to get it right first or even second time. Experience rules. The Reports will be available for comment on the Internet. The Law of the Internet is no more than morally binding but will guide future arbitrators, who will produce case Reports and so on ad infinitum. If not accepted graciously, each separate arbitrator's award may be enforced almost worldwide through international treaties. National courts will enforce the arbitrators' awards under the international treaties without any possibility of appeal. This ippeal. This is an International centric free solution to an International problem.
The mechanisms for developing and enforcing a generally accepted Law of the Internet are explained at:
"Comments on how the Internet can arrange its own Regulation"
An overall description.(24k)
"Draft Constitution of The Internet Arbitration Association"
An association to bring all those in the Internet Community
under the Law of the Internet.(5k)
"Draft of the Law of the Internet Arbitration Rules"
Internet process for resolving disputes.(13k)
"Full effect of the Law of the Internet Arbitration Rules as
&nbp; expanded by the Arbitration Act 1996"
The effect of the supporting legislation is
shown in full detail.(75k).
The author is an individual working on his own.
Cliff Dilloway firstname.lastname@example.org
Comments to email@example.com
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