Litigation and International Arbitration

Law Offices of Olga Zalomiy offers the following litigation and international arbitration services:

Frequently asked questions about international arbitration:

What is international arbitration?

Arbitration is a form of alternative dispute resolution (ADR). ADR is an “alternative” to traditional litigation in the courts. In arbitration, one or more neutral third parties (arbitrators) consider the arguments and evidence presented by each side and make a binding decision. International arbitration is simply arbitration involving parties from different countries.

What’s the difference between arbitration and mediation?

In mediation, the mediator helps the parties negotiate and reach their own agreement. However, a mediator will not issue a decision. An arbitrator can issue a decision that will bind the parties even if one or both parties disagree with the decision.

Why would somebody settle a dispute using international arbitration?

An experienced arbitration lawyer can see to it that arbitration is faster and less costly than traditional litigation. Arbitration can be far less intimidating, and more efficient, than dealing with a legal system – especially if it’s a foreign country’s legal system.

Having an arbitration clause lets the parties avoid the risk, inconvenience, uncertainly, and expense of parallel litigation in more than one country at a time.

Also, arbitration awards (unlike judicial decisions) are recognized and enforceable in the more than 140 countries that are parties to the New York Convention (see below). Spending millions on litigation is pointless if the winner can’t enforce the award in the country where the defendant has assets.

For those reasons, many people agree to put arbitration clauses into their contracts. These clauses not only state that the parties will use arbitration to settle any disputes that arise under the contract, but also specify where the arbitration will be conducted and under what rules.

How can I assure that my contract dispute ends up in arbitration and not in court?

You’ll need to make sure that your contract has a well-drafted arbitration clause. Many of the organizations that handle international arbitrations provide model clauses.

Even if you signed a contract without an arbitration clause, it’s not necessarily too late to add one. If both parties agree, you can always amend a contract to add an arbitration clause.
An experienced international arbitration lawyer can help you with drafting an arbitration clause or amendment.

Where can international arbitration be conducted?

Arbitration can be conducted anywhere in the world. However, most people choose to conduct arbitration in one of the countries that have signed the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “New York Convention”). As noted above, an award arising from arbitration in any signatory country can be enforced in the domestic courts of any other country that has also signed the Convention. Also, most parties choose to arbitrate in a neutral third country, rather than in one of the countries where a party located. This rules out the “home court advantage” to either party.

Who conducts arbitrations?

Unless their contract specifies otherwise, the parties can pick anyone they want as an arbitrator. However, to simplify matters and reduce disputes, parties usually agree in advance to arbitration under the auspices of one of the major international arbitration organizations.

The organizations include the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR), and the international arm of the American Arbitration Association (AAA).

Some arbitration organizations specialize. For example, several entities including the World Intellectual Property Organization (WIPO) specialize in arbitrating domain name disputes, and WIPO also handles other types of intellectual property disputes. Other specialists handle construction disputes.

Having a specialist arbitrator (rather than a generalist judge) is efficient since the specialist will immediately understand the context, vocabulary, and technicalities of a dispute.
These organizations have well-established rules and procedures so that the parties know what to expect in advance and don’t have to spend their time hammering out new ground rules.

Do I need to be represented by a lawyer at arbitration?

You don’t have to, but it’s a very good idea. An arbitrator is like a judge, and if you wouldn’t go in front of a judge without a lawyer, then you shouldn’t go in front of an arbitrator without one. Just as in litigation, an experienced arbitration lawyer is usually more effective than a client in making the client’s case, including both factual and legal arguments.

If you have questions about international arbitration, want us to draft an arbitration clause for you, or need representation in an international arbitration, please contact us at 1 (310) 461 3776.