Brendan J. Witry | The Dispute Resolver
As US-based construction lawyers know, arbitration is a frequently used method of dispute resolution. However, construction lawyers who practice primarily with projects and clients in the US may not be aware of the nuances that come with the use of arbitration on international projects. For this month’s installment of the Toolbox Talk Series, Zachary Torres-Fowler and Manav Singhla discussed the similarities and differences between domestic arbitration and international arbitration.
Zachary and Manav first demystified the nature of international arbitration; it is simply a means of dispute resolution just like domestic arbitration. They discussed the advantages of international arbitration, most notably the easier means of enforcement. Particularly where there are different legal systems (i.e., common law vs. civil law) enforcing a judgment from one legal system can be difficult where the prevailing party must go elsewhere (with a different legal system/tradition) to collect.
In contrast, international arbitral awards generally are covered by the Convention on the Recognition and Enforcment of Foreign Arbitral Awards (also known as the New York Convention). The majority of jurisdictions across the world are parties to the Convention. The Convention permits an arbitration award entered in one jurisdiction to be enforced in another jurisdiction. In addition, the typical advantages familiar to domestic arbitration apply, such as privacy/confidentiality, cost efficiencies, and speed. Zach and Manav discussed that international clients with projects in the US may look to arbitration to avoid civil jury trials.
Some differences from domestic arbitration are found in the mechanics of the arbitration proceedings. In the Statement of Claim/Defense (also known as Memorials) the parties include far more information that would be seen in a domestic arbitration. This includes items such as the substantive legal arguments, evidence, and expert materials. Discovery is far more limited than the already circumscribed discovery in domestic arbitration. Even the term “discovery” is avoided; rather parties will refer to document exchanges as “disclosure.”
Thank you Zachary and Manav for an insightful presentation.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.