Is Arbitration Heading Toward a Model Procedure (And Is That a Good Thing?)
Sida International Xalinta Khilaafaadka waa arrin caalami ah, ay tababar u faafayaa on dhammaan qaaradaha iyo dabacsanaanta uu noqday mid ka mid ah xubno ay muhiim ah. A growing debate in International Arbitration highlights the tensions between the diversity of culture and practice in proceedings, and the need for harmonization. While harmonization would increase predictability in the procedural process, dabacsanaan kolka ay u oggolaanaysa in, ka mid ah faa'iidooyinka kale, suurtagalnimada of taam caado, habka gaarka ah kiiska, loogu talagalay by kooxda sharci la taaban karo, istiraatiiji ah, iyo tixgelin hal abuur ku hay.
Xujooyin taageeraya dhaqaaqo xagga habka model ah
Xalinta Khilaafaadka ayaa sameeyay sida habka door iyo dejinta khilaafyadda ee keentay in isdhexgalka u dhexeeya dadka ka soo jeeda sharci oo kala duwan. In the interest of efficiency, isdhexgalka, kuwaas oo keeni dhaqaaqo guud xagga is waafajiyo nidaamka loo marayo heshiisyada iyo sharciga jilicsan.
Xisbiyada waa lacag la'aan in aad dalbato xeerarka hay'adaha, waxay u malaynayaan ugu habboon in ay muran gaar ah. Despite the suitability of party autonomy and the great number of procedural alternatives available, it is a fact that parties often end up doing things in the same way and choosing a set of rules they believe to be more efficient (or that is simply more popular).
Counsel’s and arbitrator’s influence and guidance also contribute to harmonization. Lawyers will often suggest rules that they are familiar with and that seem preferable to them. Arbitrators regularly suggest the same or similar procedures across cases for reasons of comfort and ease.
alaabtii International qaabka guud, represent a political desire to move toward harmonization and create a model ground for procedural rules. The Geneva treaties of 1923 iyo 1927 were the first steps toward the recognition of arbitral clauses and awards (later to be crystallized in the New York Convention of 1958).
The underlying purpose of UNCITRAL was to provide for general harmonization and set up a minimal standard to cope with the flaws that disparities can create. The UNCITRAL Model Law has been used by many countries as a basis to adopt their own domestic law and become more arbitration friendly. Its purpose was to achieve uniformity of procedural law throughout the world. While it is true that choosing a place / kursiga of heshiisiin keeni doonaa set gaar ah xeerarka, xaqiiqda ah in sharciyada qaranka la'ah inay Law qirto Model ah ugu mahad naqa, waayo, in la is waafajiyo oo ah habka.
The availability of the jurisprudence and its global use has also influenced and contributed to harmonization. The ICSID Convention has played a key role in this matter.
macaamiisha badan oo dar-qaadidda burburin ah ka ay heshiis inta badan sababtoo ah ma rabto in aad tagto maxkamada, not because they know what going to arbitration entails. For this reason, it is crucial that the arbitration community provides them with a strong degree of guidance. The epistemic community shares the same expertise and is moved by similar objectives, iyo shaki la'aan ayaa xiisaha kor u qaadida dhaqanka heshiisiin ah in si la mid ah.
Inkasta oo waa la fahmi karo in Mareykanka ay leeyihiin dano siyaasadeed weyn ee dhaqmaadka sharciyada la mid ah, mid la yaabi karaan sababta ay had iyo jeer u samayn waxyaalahaas oo kale si la mid ah ka fiirsaneysa degree badan oo dabacsanaan ay bixiyaan. That they want to attract business to their own countries (and do so by adopting an arbitration friendly framework with greater predictability) is one thing, but don’t they also have a strong interest in distinguishing themselves? Arbitration is a business in itself and the very existence of Paris Place of Xalinta Khilaafaadka muujinaysaa doonista dalalka ay u tartamaan soo horjeeda midba midka kale marka la eego sumcad iyo habka xilgudashada ugu habboon.
Arbitration institutions have historically been very influential in this process. When the ICC changes its arbitration rules, it is likely that other institutions will consider those changes and use the guidance provided by the leading institution to modify their own rules. More and more arbitrations are institutional and rules now tend to converge rather than differ.
Professional associations such as the IBA provide guidance through their notes and rules. While civil and common lawyers often disagree on what to do with the evidence, Xeerarka IBA dhigay saldhig caadiga ah weli dabacsan oo ku saabsan sida si ay ula arrintan ka qaban, oo hadda loo isticmaalo in 60% of arbitrations. It can be argued that soft law relating to the law of evidence provides for a degree of convergence of the two legal traditions and for a common ground that lawyers often need.
The 2012 International Arbitration Survey conducted by the University of Queen Mary and sponsored by White & Case dealt with current and preferred practices in the arbitral process. It led to the conclusion that there is indeed a general common practice on how proceedings are conducted and how evidence is managed. Tusaale ahaan, waxaa jira sixina uu heshiis ku saabsan waxtarka of cross-baaro, cadayn marag khabiir, and that fact witness evidence should be offered by exchange of witness statements. This has become a general global framework.
Arguments opposing a move toward a model procedure
Iyadoo ay run tahay in arrimo ha isugu xagga dhaqanka ugu fiican nidaamka Xalinta Khilaafaadka International, arrimo dhowr ah looga hortago in la is waafajiyo. First, halka aan aan shaki karaa jiritaanka bulshada heshiisiin ah oo gool oo laga filayo nidaamka taageero laga yaabaa wada, one cannot argue that the practice of arbitration is limited to the arbitration community. The majority of arbitration cases involve lawyers whose practices are not arbitration. These lawyers may not see many arbitration cases in their careers and their individual litigation backgrounds will guide their conduct, sidaas taasoo keentay in ujeedooyinka nidaamka kala duwan mida dhakhaatiirta. Said differently, heshiisiin bulshada caalamiga ah ee ka kooban khubaro heshiisiin la wadaagin doonaa fikrado la mid ah sida taladoodu maxaliga ah ee ku lug-qaadidda dhawr jeer noloshooda.
Oo weliba, the existence of a model procedure assumes that all players have reached a consensus on the practice. Such uniformity is not the reality of arbitration and there are many grounds for debate. Tusaale ahaan, some lawyers appoint an arbitrator that they wish to be assisted by an administrative assistant. The debate relates to his duties, should he be drafting the award? Opinions diverge on this point.
There are many new local markets becoming places of arbitrations. The emergence of these new players leads to an increasing number of arbitrations being handled locally, where practice may differ greatly from other places. New emerging players may not agree that best practices for others also constitute best practices for themselves and would, tusaale ahaan, tixgelin Tilmaamaha IBA ku Party Representation aad u kala duwan.
Inta badan mid ka mid ah saameynta ugu weyn ee nidaamka waa dhexdhexaadiye qudhiisu. Arbitrators’ preferences for procedure remain fairly consistent across their caseloads and vary greatly when compared to other arbitrators. Some may not want post-hearing briefs whereas others do away with direct examination. Weli, dhexdhexaadiye ah oo janjeero nigis post-maqalka laga fili karo in aad dalbato hab this badan oo xaaladaha uu.
Dhinacyada isku khadadka, xisbiyada waxaa laga yaabaa in laba labeyn in isbedel soo jeediyaan in ay dhexdhexaadiye ayaa laga filayo nidaamka sababo la taaban karo. One wants the arbitrator to like him and like his case; if the arbitrator suggests something in the procedural order, waa in uu qofku run ahaantii la yaabanahay haddii jeedinayso beddelka ah in nidaamka runtii waa fikrad fiican.
U dhaqaaqidda Dhinaca habka model ah waa wax fiican,
Nidaamka A model in International Xalinta Khilaafaadka hubiyo lahaa xasiloonida iyo ammaanka ee diyaarinta dacwadda. It could reduce costs by promoting predictability and allowing parties to organize their cases quicker and with ease. Durba maanta, waxaa jira qaar ka mid dhinacyo nidaamka lagu kalsoonaan karo oo practitioners filan kartaa in ay la kulmaan in heshiisiin kasta.
They will agree that the ability to rely on the following features is indeed a good thing:
- First, Hadalka dalab la filayaa in la faahfaahsan oo ay taageerayaan caddayn. Tani ma aha kiiska oo dhan dhaqanka sharci ah sida qareenka sharciga caadiga ah waxaa inta badan laga filayaa inay bixiyaan bayaan lafaha ah sheegashada in la kaabaya dhex helay.
- labaad, daahfurka xadidan waxaa laga heli karaa. Xisbiyada ka dhanka kale codsan kartaa waraaqaha haddii dukumentiyada sida ay yihiin waxtar leh in la dhiso ay dhacdo.
- saddexaad, dhinacyada ay xaq u leeyihiin in dhagaysi. Hearings are automatic in common law jurisdictions whereas they are not in civil law jurisdictions. International Arbitration practitioners can rely on the fact that they always have a right to a hearing but may also decide to waive this right.
- afraad, muhiim ma aha in ay soo bandhigto ama sugee cadayn xiliga dhagaysiga. The sal-dhigida iyo sugida caddaynta waa hadiyad loo soo dhaqanka culaab in maamulada sharciga caadiga ah.
- Fifth, xisbiyada iyo tribunal garqaadaha wada go'aan nidaamka. Whether or not parties decide to exercise their right to participate in determining the procedural process is another consideration.
- Sixth, witnesses are examined by both arbitrators and counsel. Counsel examines witnesses in common law jurisdictions while the judge examines witnesses in civil law jurisdictions.
- toddobaad, talada la xadidaa, waxaana in awoodda uu u sameeyo baaritaan si toos ah. The witness statement usually serves as the direct examination and one will have an opportunity to supplement this statement only if something new comes up afterwards.
- Sideedaad, labada dhinac iyo tribunal magacaabi karo khubarada. Parties should always anticipate the appointment of experts and plan accordingly.
- Ninth, talada diyaarin kartaa oo markhaatiyaal iyo khubaro bixin. Tilmaamaha IBA The on xisbiga Representation xaqiijiyay in dhinacyada ku bixin kartaa markhaatiyaal iyo khubaro kharashka macquul gashay in diyaarinta dhagaysiga, luma waqti, iyo lacagta khabiir macquul ah.
- Ugu dambeyntii, talada laga yaabaa, ma og, make false submissions of facts to the tribunal. This is analogous to the rule in the United States whereas French law does not address the issue. If parties do make false submissions of facts, maxkamadda ka dhigi karaa go'aano xun ama tifatir qoondaynta Xisbiyada 'kharashka sharciga iyo ajuurada maxkamadda.
A model procedure would be evil
The nidaamka International Xalinta Khilaafaadka waxa lagu gartaa ay dabacsanaan. Parties can tailor the procedure to their individual needs and choose from a wide range of procedural options. Many arbitration proceedings look similar but, sida waxaa mana jiri doonto weligeed xaalado isku mid, halkaas waa inaanu ahaan nidaamka isku.
Xalka xagga habka model ah daruuri daciifin doonto dabacsanaan this. Sida mid ka mid ah dhakhtar yiri, “Why buy IKEA when you can have custom-made furniture?”
The 2012 Dhexdhexaadinta Caalamiga Survey ay sameeyeen Jaamacadda Queen Mary muujisay in xirfadleyaasha ayaa ka walaacsan in geeddi-socodka uu noqday mid aad u nidaaminaya.
dhaqanka ee International Xalinta Khilaafaadka u baahan in ay qaataan galay account wajiyada dhaqan iyo khilaafaadka maxalliga ah, and respect the expectations of the parties. This is what arbitration should be about. Tusaale ahaan, there are many issues to be considered when trying to enforce an award in the Middle East and that will be typical to the local culture (in Dubai the oath of the witnesses can be problematic if the proper administrative form was not use, and the Qatari Court of cassation set aside an award because it was not rendered in the name of the emir of Qatar).
Clients may eventually feel cheated by the use of a model procedure as they chose arbitration as a means to settle their disputes at least in part for its procedural flexibility. Clients may also view a harmonized procedure as taking less of their individual expectations into account.
Arguments presented during a Young Arbitrator’s Forum Panel Presentation by speakers:
- Eleonore Caroit (Castaldi, Mourre, & Partners)
- Lorraine de Germiny (King & Spalding)
- Matthew Secomb – Moderator (White & Case)
- Thomas Granier (ICC)
- Florian Grisel (Dechert)
- Olivier Marquais