Dispute Resolution
Dispute Resolution Who’s Who The last decade has been a period of significant change for commercial dispute resolution practices worldwide. With court time at a premium and a growing emphasis on alternatives to litigation, the role of the commercial litigator has shifted towards advisory services rather than pure court work. In the UK, commercial dispute resolution has changed dramatically. With a growing number of large corporates bringing their representation in house, and a greater emphasis on dispute resolution through mediation, the landscape has shifted dramatically. The primary catalyst for change in the UK came in the form of the Woolf Reforms. Named after Lord Woolf, the man responsible for updating the civil law system in England & Wales in the 1990s, the rules were intended to simplify and speed up the process of taking cases through the UK courts. The rules were written in plain English and placed a far greater emphasis on settling disputes before going to court. These rules came into force in April 1999. Since that time, the old perception of litigators as ruthless and aggressive has become more and more outdated in the UK. The onus placed on parties to settle disputes before the litigation stage encouraged recourse to mediation and other means of alternative dispute resolution (ADR) where appropriate. This often removed the need for protracted and costly court proceedings. Similar steps were taken across Europe around the same time as the Woolf Reforms. In 2000 the European Commission launched the European Extra-Judicial Network (EEJ-net), a new network for settling commercial disputes out of court. The aim was to boost confidence in cross-border transactions, especially those involving the internet and other new media. The EEJ-net’s mission became the provision of a single point of contact in each EU member state for the resolution of conflicts arising from cross border trade within the Union. Those themes that have characterised dispute resolution in the UK and Europe have largely been mirrored around the rest of the world. Indeed, concerns in the USA over the costs of increasing litigiousness led to the development and export of ADR techniques in the first place. Quick on the uptake Despite initial resistance to ADR by both parties and their advocates, ADR has rapidly gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried. The rising popularity of ADR can be attributed to the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. A central concern facing companies making a decision to pursue litigation against a supplier or client is the severing of the business relationship that usually accompanies court proceedings. It is perhaps here that mediation and ADR have their most valuable application, in healing rifts and avoid the hostilities of court battles. A central development in dispute resolution around the world has been that of early neutral evaluation (ENE). This technique, which provides early focus in complex commercial disputes, offers a basis for sensible case-management or a suggested resolution
International Council for Commercial Arbitration (ICCA) Antonio R. Parra, Secretary General +1 202 744 8801 arparra@earthlink.net
of the entire case in its very early stages. In ENE, an evaluator acts as a neutral person and assesses the strengths and weaknesses of each of the parties. In this way, parties gain awareness (via independent evaluation) of the merits of their case. In the case of mediation, solutions normally emerge from the parties themselves and mediators endeavour to find the most acceptable solution by bridging gaps between the parties. Promoting ADR worldwide The focus on mediation and other forms of dispute resolution has led to the development of numerous accreditation, training and development organisations in the major jurisdictions around the world. Official bodies such as the National Alternative Dispute Resolution Advisory Council in Australia and American Center for Conflict Resolution Institute in the USA have committed to the training of professional mediators and the development of new techniques. On a larger scale, the Council for Commercial Arbitration (ICCA) is a worldwide non-governmental organisation dedicated to promoting and developing arbitration, conciliation and other forms of international dispute resolution. Its activities include convening international arbitration congresses and conferences, sponsoring authoritative dispute resolution publications, and promoting the harmonisation of arbitration and conciliation rules, laws, procedures and standards. ICCA’s principal publications, prepared with the assistance of the Permanent Court of Arbitration at The Hague, include the Yearbook Commercial Arbitration, the International Handbook on Commercial Arbitration, and the ICCA Congress Series, consisting of the papers presented at the biennial meetings. ICCA also co-sponsors KluwerArbitration Online, a fully searchable database in the field of international commercial arbitration. ICCA has official status as a nongovernmental organisation accredited by the United Nations. In that capacity, ICCA has participated actively in the preparation of the Arbitration Rules of the United Nations Commission on International Trade Law, the UNCITRAL Conciliation Rules, and the UNCITRAL Model Law on International Commercial Arbitration. See the following pages for a directory of dispute resolution firms from around the world.
June 2009 Corporate INTL 23
Dispute Resolution
Belgium
Dispute Resolution
Smit & Partners Lawrence Muller, Partner +32 2 533 09 33 muller@smit.be
Channel Islands
Carey Olsen Robert MacRae, Partner +44 (0) 1534 822334 robert.macrae@careyolsen.com
Colombia
Founded in 1941, Lloreda Camacho & Co is a full service law firm that provides legal counseling to foreign and multinational clientele doing business in Colombia. The firm puts particular emphasis on the preventative practice of law and assists clients in planning, projecting and protecting their business.
Smit & Partners
Lloreda Camacho & Co Bernardo Salazar, Head of Litigation & Arbitration +571 326 42 70 bsalazar@lloredacamacho.com
others have also insisted in pursuing legal actions to recover debts and enforce contracts against debtors instead of writing off those debts. The litigation and dispute resolution team has developed extensive expertise in the increasingly popular fields of mediation and arbitration. These alternative dispute resolution processes have been growing
Belgian law courts may not force the parties to use arbitration as an alternative way of dispute resolution, but in the past few years, specifically since the coming into force of the law of February 21, 2005 on mediation, Belgian law courts have begun to encourage the parties to a dispute to resort to mediation. Provided that all the parties agree, courts in Belgium may even refer the case to a mediator before trying it.
Carey Olsen is the largest law firm in the Channel Islands and, in terms of litigation, has the largest team with four partners specialising in Jersey law and four partners specialising in Guernsey law. It is also the only Channel Island law firm with litigators based in London, which enables Carey Olsen to offer a better service to its UK and international clients. This is a very busy time for litigation in both Jersey and Guernsey. In
Alternative dispute resolution is often used in Belgium as an alterna-
Jersey the volume of trust and company litigation now being handled
tive to litigation as it usually imposes fewer costs (especially media-
by Carey Olsen is greater than we have ever seen both in terms of
tion), is less time-consuming and most importantly, is confidential. In
cases and complexity. For example, we represent one of the two trust-
addition, the parties involved have greater control over the selection
ees in the Alhamrani trial, which has now been running for several
of the person who will help resolve their difference, which is a huge
months.
advantage. On the whole, many clients find that mediation results in
The Courts of Jersey are excellent at resolving trust disputes, and
a better resolution of the dispute than litigation, since parties have
the judgments of the Jersey courts have been cited and followed by
invested time and effort into reaching a mutually accepted resolu-
Courts in other jurisdictions. We have even noticed an increasing
tion of their difference. Mediation is often the best solution where
trend of parties seeking orders from the Jersey Courts even when the
ongoing relationships exist between the parties, or where the parties
trust is governed by foreign (including English) law where the trustee
have an interest in resuming relationships that have been temporarily
is based in Jersey. This is because there is a perception that the
interrupted.
Jersey Courts often offer certain advantages over the foreign courts
I have practised law for almost 30 years and have extensive exper-
in terms of speed of access, cost, and certainty of outcome. The
tise and experience in both civil and commercial litigation, but I am
likelihood in almost every case is that an application will be heard by a
also a certified civil and commercial mediator. I equally act as a con-
judge very experienced in hearing trust cases.
ciliator in civil and commercial matters, as well as an arbitrator in the
the Royal Court of Jersey makes regular use of powers introduced in
an ADR clause, such as an arbitration, conciliation or a mediation
2004. These allow the Court to order that proceedings be stayed for
clause, in the contracts they sign.
the parties to attempt alternative dispute resolution. Cases are medi-
lawyers, 7 of which are members of the firm. The firm’s primary focus is on litigation and consultation, with an additional focus on arbitra-
steadily since 2001 when legislation was enacted in Colombia to oblige
cial law, administrative and state contract law, corporate law, tax, labour and immigration
parties to carry out mediation before commencing certain civil actions.
law, civil and commercial law, intellectual property matters, litigation and arbitration.
This legislation was recently enhanced in 2009 by extending the require-
The litigation department works as a team alongside other members of the firm,
ment to the filing of any administrative proceeding. This has been effec-
depending on the subject matter of the dispute. Together we offer our clients the highest
tive in the settlement of minor disputes but not so successful in solving
quality legal advice in any type of legal controversy. The litigation department’s specific
complex and substantial disputes.
areas of practice include commercial and civil law, insurance, contract, agency, unfair competition, class and constitutional actions, patent and trademark infringements, general corporate disputes, labour matters and administrative law disputes. The department devotes particular emphasis to case analysis and strategy planning and makes it a priority to work with a team of experts throughout the entire process. While we are experts in dispute resolution, we understand that this is not the business of our clients, therefore we make an effort to manage the process in a manner that enables
On the other hand, arbitration has proved to be an efficient and reli-
them to remain focused on their business. Our highly efficient and responsive team of
able way to solve complex and substantial commercial conflicts. Indeed,
lawyers is able to effectively manage complex disputes across the country.
many important cases arising out of commercial contract disputes are
In recent months we have seen a substantial increase in dispute resolution work, which
now decided in arbitration rather than by ordinary courts. This is exem-
is probably a result of the current economic downturn. In particular we are seeing many
plified by the fact that use of arbitration has substantially increased in
clients choosing not to settle or make an arrangement out of court but to continue litigat-
the last 10 years, particularly cases before the Arbitration Center of the
ing and defending their position in Court, when previously they may have settled. Several
Chamber of Commerce of Bogotá.
Croatia
Mladen Vukmir +3851 376 0511 mladen.vukmir@vukmir.net
Mediation continues to be a popular way of resolving disputes and
same areas. I claim to favour ADR by advising my clients to include
Smit & Partners was formed in 1997 and currently comprises 13
The firm’s areas of practice include foreign investment and exchange control law, finan-
ated either by Jersey qualified mediators or foreign lawyers, usually London based QCs or partners in City firms. As to the present and immediate future, we are seeing a number
Vukmir & Associates is an independent law partnership specialised in commercial, corporate and intellectual property, which represents clients such as corporations, financial institutions and law firms worldwide.
court settlement and is a valid title for execution. An increase in mediation cases has been noted in all court instances, particularly before commercial courts and the High Commercial Court of the Republic of Croatia. The Croatian Ministry
tion and conflict prevention. The firm’s main objective is to provide
of new instructions relating to international insolvency issues and, in
a complete and service tailored to the individual needs of its clients.
particular, distressed common investment vehicles such as invest-
When it comes to dispute resolution our firm aims to prevent unnecessary litigation and
of Justice has successfully conducted a media campaign which also
Among these clients are companies, individuals and governments.
ment funds.
also reduce the frequency and severity of disputes by encouraging clients to engage in
resulted in increasing public awareness of ADR in Croatia. However,
alternative dispute resolution (ADR) techniques such as mediation and arbitration.
the obligation to initiate mediation in litigations against the State
We assist our clients in both national and international business
Carey Olsen’s litigation department in Jersey has been involved in
concerns, depending on their field of activity. Taking into account
most of the leading cases that have come before the Jersey Courts
the specific needs of our clients companies, we strive to adapt our
in the last few years. For example, Re DSL (Judgment 2008), which
rated it into the country’s legal framework. For example, the Croatian Mediation Act was
services with as much flexibility as possible.
is first case of the Royal Court setting aside a Jersey trust on the
passed in October 2003, which makes Croatia one of the rare countries that has codified
grounds of mistake and Freeman v Ansbacher (Judgment 2009), which
the mediation (conciliation) procedure.
The firm has a lawyer based in Paris and we are able to provide our
Croatian legislation has acknowledged ADR from a very early stage and has incorpo-
is often futile, as there is no mandatory institutional mechanism to implement such a procedure. The benefits of ADR are manifold, not least because such processes create a mutual understanding which inevitably improves the chances of a later settlement. It also allows parties involved to have
domestic clients with international legal assistance further afield,
was a breach of trust claim, which resulted in a ground-breaking deci-
through local law firms known for their competence in most coun-
sion in relation to the locus standi of beneficiaries of a trust to sue for
the implementation of the rules, as there were little or no incentives and no means for
full control over both the dispute and the settlement process. In ad-
tries in Europe and the United States. Due to the globalisation of the
breach of trust, and the application to such a claim of the rule against
a wide-spread application of such proceedings. In addition, in the past the courts have
dition to this, most ADR practices are confidential and they preserve
business community we are constantly developing our international
reflective loss.
been reluctant to direct parties to resolve their disputes by mediation or conciliation.
the reputation of the companies involved and increase the likelihood
affiliations and are currently developing legal and business partnerships with competent firms in Turkey.
In the early phase of the mediation legislative framework, problems were present with
of continuing business relationships between parties.
The team has also been involved in the Re Bird case (Judgment
Lately, there have been some encouraging steps in the development of mediation.
2008), the first Jersey decision considering the fiduciary nature of the
Namely, amendments to the Code of Civil Procedure from July 2008 introduced specific
powers of a Protector and the extent to which exercise of such powers
provisions relating to ADR. According to these provisions, the court may encourage
disputes, but this is something we have not yet seen in Croatia.
by protectors may be regarded as in breach of fiduciary duty and also
parties to resolve disputes by way of mediation at any point in a litigation procedure. In
However, we do expect to feel the more serious and profound con-
the aforementioned Re Alhamrani case (2009), which is the longest
such cases a mediation hearing shall be scheduled without delay in order to resolve the
sequences of the global financial crisis in the Croatian economy by
and most complicated breach of trust case ever heard by the Jersey
dispute. Mediation before the court is handled by a qualified professional selected from a
autumn 2009, when we may inevitably expect an increase in disputes
Courts.
list of judge mediators determined by the president of the court in his annual schedule.
such as debt collections and even bankruptcy proceedings.
An economic crisis often results in an increase in commercial
The settlement reached during mediation before the judge mediator is considered a
24 Corporate INTL June 2009
June 2009 Corporate INTL 25
Dispute Resolution
Cyprus
Dispute Resolution
Georgiades & Mylonas
France
Mr. Yiannos G. Georgiades, Managing Partner +357 2281 9292 yiannos.georgiades@gmadvocates.com
Litigation is still the predominant method for resolving disputes in Cyprus, however, alternative dispute resolution (ADR) is becoming an increasingly popular choice, particularly for disputes relating to cross-border transactions and commercial matters, although to date, no official bodies in Cyprus specifically offer ADR services. The Cypriot Courts are very supportive of ADR, with judges becoming more reluctant to proceed with hearing a case involving specialised, technical matters or scientific issues requiring specialised knowledge. In such cases, they are likely to recommend the appointment of an arbitrator. Georgiades & Mylonas are in a strong position to provide as-
Bredin Prat Tim Portwood, Partner +33 01 44 35 35 35 timportwood@bredinprat.com
The French courts adopt an overtly pro-arbitration stance, therefore, they are more willing to provide support for arbitral proceedings rather than interfere in them. Furthermore, Paris has acquired a reputation as an international arbitration centre, and this continues to nurture the attraction of France as a place for arbitration. To further promote the use of ADR in commercial disputes French Judges are encouraged to propose mediation as a viable alternative to litigation. The use of this technique is gaining more momentum as awards of costs are today becoming more realistic in their amount, in comparison to the previous tendency to order often derisory amounts. This may gradually change the ‘sue first negotiate later’ approach often seen in French litigation.
sistance to their clients both through traditional litigation and extrajudicial processes, namely ADR techniques such as arbitration
The main issue that is exercising the minds of ADR practitioners in
and mediation.
France at the moment is the Commission’s planned amendment of Reg
In order to commence arbitration proceedings, there must be an
44/2001, which is concerned with jurisdiction and the recognition and
arbitration agreement between the parties, which is usually irrevo-
enforcement of judgments in civil and commercial matters, to include
cable and therefore binding, unless it contains a contrary provision or
arbitration. Many French practitioners are strongly against the move
a court order is issued (Arbitration Law 1944, Section 3, Cap. 4 – the
since they fear a reduction in the attraction of arbitration resulting from
law governing domestic arbitration in Cyprus). The agreement should
the “Communitisation” of the enforcement of arbitral awards and an
be in writing - Arbitration Law 1944, Section 2 and the International
unnecessary focus on the courts of the place of arbitration when judicial
Commercial Arbitration Law L.101/87 - international arbitration.
assistance is sought in aid of an arbitral proceeding that are proposed.
If the parties commence legal proceedings in any Court against an
The international practice of law requires both global and comparative legal thinking. This is the daily business of Brödermann & Jahn in its transactional practice of bringing clients to new markets and in the daily house-keeping issues when we act as quasi in-house-counsels for internationally active companies. This practical background has shaped our approach to international arbitration which is one of the three cornerstones of Brödermann & Jahn’s legal practice.
Brödermann & Jahn Rechtsanwaltsgesellschaft mbH Eckart Brödermann, Partner +49 40 37 09 05 0 broedermann@german-law.com
Chinese, English, French, German or Spanish. In 2008, Brödermann & Jahn co-initiated the Chinese European Legal Association (CELA, see www.cela-hamburg.com) as an international non profit joint venture which, in turn, has created the Chinese European Arbitration Centre (CEAC, see www.ceac-arbitration.com). This is a global arbitration body with an international (presently Chinese-European) management and a tri-partite division of power in the Appointing Authority. For example, the first Chamber includes one Chinese, one Italian
It starts with an open minded and pragmatic approach to arbitration clauses, which some-
and one Indonesian expert representing China, Europe and the world.
times can be put in a paragraph and which, on other occasions, for example in complex
The Chairman of the CEAC Advisory Board is the former president of the
multi-party negotiations on an international construction project, need to be separated in
Chartered Institute of Arbitrators, who is Scottish. The Chairman of the
a complex agreement to cover all the issues.
CELA Advisory Board is the former president of the All China Lawyers
As counsel, the firm has acted and is currently acting in arbitrations before many dif-
Association and of the Interpacific Bar Association, and he is Chinese.
ferent arbitration tribunals under different laws and regulations, such as ad hoc, ICC, the German DIS and Swiss Rules. The firm’s experience in international arbitration goes back as far as early 1980’s and our involvement in arbitrations under the UNCITRAL Rules in the Hague Tribunals, namely the Iran cases. Arbitrators who are partners or counsel of the firm, including Dr. Eckart Brödermann, have acted under ad hoc rules, the Stockholm Rules, DIS Rules or the ICC rules. Counsel Professor Peter Behrens has acted on several occasions in investment treaty arbitrations. As a team, the firm has also advised on issues of bilateral investment arbitrations. Brödermann & Jahn also provides advice on a pro bono basis on issues of international arbitration. This includes academic teaching and publications on international arbitration. The team of Brödermann & Jahn works on a high level and in several languages including
India
Advani & Co Hiroo Advani, Partner +91 22 2281 8380 hiroo.advani@advaniandco.com
When seeking advice in a commercial dispute it is important to find a
arbitration agreement, the Court has a discretionary power to stay
lawyer that can identify the different tensions that nourish the dispute,
the proceedings under Article 8 of the domestic arbitration law for re-
separate them, understand each one and isolate the real cause. If litiga-
ferral to an arbitrator. In Cyprus, all commercial matters are arbitral.
tion is unfortunately inevitable, an advocate who has excellent commu-
However, any matter concerning criminal or family law is considered
nication skills, a quick mind, the ability to understand the other side and
to be non-arbitral.
their counsel and who is not unduly aggressive is essential.
We would advise clients to include a detailed arbitration clause
Germany
Bredin Prat’s international arbitration practice is led by a team of
The Indian economy is currently recession stricken, like most other countries, and as a result, we have seen a considerable increase in commercial disputes. These disputes are mainly driven by disagreements in payment terms and the inability to meet assured targets, amongst other things.
being both a team player and a cynical touchstone to ensure that the quality of services provided to the clients is never compromised. The firm also acts as lead Counsels which is unusual In India as many
in their commercial agreements covering their requirements for a
highly experienced lawyers from both the continental civil law and
well-organised, efficient and final resolution of the dispute on a cost-
common law traditions. This diversified team of lawyers from a variety
effective basis. It is important in dealing with disputes that practical
of legal backgrounds enables Bredin Prat to deploy devoted teams of
points are not missed. All agreements should be read in accordance
lawyers having the skills best suited to serve its clients’ needs depend-
with the Arbitration Law, Cap. 4 for domestic arbitration.
ing on the arbitration forum in question and with an extremely high level
The use of alternative dispute resolution methods such as arbitration and mediation
million dollars in Arbitrations in the past three years and have suc-
of partner involvement.
law firms engage outside Counsels. We also represent clients in enforcement proceedings. Our enviable record illustrates that we have resolved 30 to 40
has been increasing in recent years. However, the Courts in India interfere extensively
cessfully fought Arbitrations ranging from 50 million to 500 million
Bredin Prat’s arbitration practitioners act in domestic and inter-
both in domestic and international arbitral awards. This is compounded by the fact that
dollars. These successes confirm Advani & Co. as viable leaders in
settlement via mediation. Georgiades & Mylonas are well equipped to
national arbitrations in France and abroad involving both French and
a challenge to the award can take three to seven years. As a strategy and in the light of
the field of arbitration, both domestically and internationally.
deal with mediation proceedings since Mr Georgiades, the Managing
foreign law, including disputes under the various institutional rules
the judgment of the Indian Supreme Court, we draft suitable clauses for international
Partner, was at an event last year, held in Milan, by the Chamber of
(e.g., ICC, LCIA, ICSID and AAA) as well as ad hoc arbitrations. Acting for
arbitration to exclude the purview of Indian Arbitration and Conciliation Act, 1996.
Arbitration of Milan, and he was appointed as one of 28 online Euro-
clients based in Europe, the Middle East, Eastern Europe, the U.S., Asia
pean mediators who deal with cross-border disputes.
and Latin America, the firm handles disputes ranging from matters in-
experience and efficiency of the ADR management system of the firm he chooses to
Jawaharlal Nehru Port Trust, Oil & Natural Gas Corporation Ltd. and
volving investment treaties, shareholder, partnership and joint venture
counsel him. To ensure the optimum result clients must ensure that their Counsel is ap-
Indian Oil Corporation Ltd. The arbitration awards have favoured our
relevance and usefulness of ADR processes. Furthermore, Cyprus’
disputes construction, IT and commercial arbitration to disputes involv-
prised of all facts and documents that would enable them to put forth the best possible
clients in 90% of cases.
membership of the European Union and its geographical location
ing energy and natural resources, as well as many others.
case. It is also of utmost importance that a client obtains a fair evaluation of his claim.
Alternatively, the parties can voluntarily refer their dispute to an independent third party who helps them negotiate in order to find a
Businesses in Cyprus are becoming more and more aware of the
makes the country an ideal centre for resolving international commercial disputes.
Bredin Prat’s lawyers often act as arbitrators in domestic and international arbitration proceedings, being appointed both by parties to the arbitrations and by arbitration institutions around the world. The firm’s
26 Corporate INTL June 2009
When seeking advice in a commercial dispute a client’s decision is influenced by the
The firm’s satisfied clients include several domestic and international blue chip companies. In addition, the firm has fought substantial disputes for and against various Government entities such as
The expertise and experience leading the firm and the skills resid-
It would also be worthwhile for the client to ask their Counsel for an assessment of the
ing within it, have helped Advani & Co. earn the privilege of being
pros and cons of the strategy adopted in contesting a case.
named as one of the best law firms in Asia for International Arbitra-
Advani and Co has vast experience in resolving disputes arbitrated under the auspices
tion. We value the faith our clients place in us and also the efforts
lawyers also have extensive experience in other forms of alternative
of various international arbitral institutions like The International Chamber of Com-
that have contributed to the firm’s progress. In this day of shifting
dispute resolution such as mediation, conciliation and negotiation.
merce, London Court of International Arbitration (LCIA), UNCITRAL, Zurich & Stockholm
business alliances, one thing that has helped preserve our relations
Chamber of Commerce. Every member in the organization assumes the responsibility of
is our constant commitment towards our clients.
June 2009 Corporate INTL 27
Dispute Resolution
Italy
Dispute Resolution
Bonelli Erede Pappalardo
Luxembourg
Vittorio Allavena, Head of Litigation +39 02 771131 vittorio.allevena@beplex.com
Brucher & Partners Jean Brucher, Partner + 352 26 0 27 jean.brucher@brucherlaw.lu
Prof. Luca Radicati di Brozolo, London desk +39 02 771131 luca.radicati@beplex.com
Malta
Fenech & Fenech Advocates is probably the oldest law firm on the Island, traced back to 1897. In the mid nineteen eighties it underwent rapid expansion in several important areas becoming a market leader in maritime law, financial services, ICT and corporate law.
Fenech & Fenech Advocates Ann Fenech, Managing Partner +356 2124 1232 ann.fenech@fenlex.com
charterers for illegally terminating charterparties. In addition, there is a marked increase in vessel arrests and a growing number of Section 37 actions asking the Court to prohibit any dealing in a ship. There are also numerous requests from mortgagees who are eager to know their rights against defaulting owners.
Bonelli Erede Pappalardo (BEP) - one of Italy’s leading law firms - is recognised as one of the few Italian firms able to offer comprehensive legal advice with an international approach on every aspect of law for Italian and foreign corporate clients. BEP has almost 300 lawyers and offices in Milan, Genoa, Rome, Brussels and London. Our highly regarded dispute resolution department is unique in Italy for its size, expertise and breadth of activity. It is a key component of BEP’s overall commercial practice and combines our corporate and financial skills and knowledge of the market with sophisticated litigation skills. We have opened a dispute resolution desk at our London office to be in direct contact with foreign clients seeking assistance with litigation and arbitration in Italy and to facilitate the taking of instructions from foreign law firms and to liaise with them when assisting our clients in multi-jurisdictional cases. We regularly advise on litigation strategy and deal with complex, high-profile and high value litigation in the Italian courts at all levels and in multi-jurisdictional settings, as well as in domestic and international arbitrations, for Italian and foreign corporate clients. We cover the entire range of commercial disputes and .have been involved in the most relevant litigation in Italy. We currently assist a variety of national and international clients on complex disputes with cross border legal issues. We are particularly proud of our arbitration practice. We have one of the strongest and most respected teams in Italy with specialist arbitration experience. We act in institutional and ad hoc arbitrations under different substantive and procedural laws and institutional rules (ICC, LCIA, Uncitral, Stockholm Chamber of Arbitration, Milan Chamber of Commerce, Geneva Chamber of Commerce, Cairo Regional Center, Swiss-Italian Chamber of Commerce, Bangkok Center, ICSID) and in different jurisdictions. Our arbitration experience covers a broad spectrum of subject matters (contractual, construction, agency and distribution, competition and EU law, joint ventures, company law, shareholder disputes etc). We also advise on arbitration strategy and act before national courts in support of arbitral proceedings and for the enforcement and challenge of awards. Our team is particularly highly regarded for its investment arbitration practice, which is unique in Italy. We have been involved in 13 ICSID arbitrations under bilateral investment agreements involving 10 different countries. We have the ability to field large multilingual teams, headed by senior litigation specialists, and to draw on the specialist resources and expertise of our diverse practice areas. We have the resources to handle the large amounts of documents involved in today’s international litigation. Several of our lawyers are university professors and recognised scholars in their respective fields and are influential in shaping developments in the law through their publications in Italian and foreign publications, their participation at conferences and their contributions to academic and professional bodies. Several of our lawyers act as sole arbitrators and as members and chairmen of arbitral tribunals and dispute resolution boards. Chambers Global has ranked our lawyers amongst the best arbitrators in the country.
28 Corporate INTL June 2009
Brucher & Partners is a legal practice established in Luxembourg City (Grand Duchy of Luxembourg) at the heart of one of the most attractive international financial centre in the world. As a multidisciplinary practice, active in business law and litigation, we offer a comprehensive set of services to both local and international clients. The firm has an extensive experience in both pre-contentious and contentious situations in the civil, commercial, administrative and employment fields. The firm is specialized in particular in matters of banking, finance and corporate law litigation. Bearing in mind our clients’ best interest, we advise them both on legal and extra-legal actions giving the greatest chance of success. Our litigation services include traditional representation covering all aspects of cases before the Luxembourg’s courts at all levels as well as before European courts and authorities. We also assist some of our clients in their international activities. By using our international network we can ensure the best defense of our client’s interests in other jurisdictions.
The Firm’s astute team of litigators are active in local litigation before the courts and tribunals of Malta in litigation cases ranging form constitutional law, public and administrative law, criminal law, civil law, family law, property law, commercial and corporate law, intellectual property law and tax law. Most notably, the firm is the only law firm on the Island with a designated marine litigation department. The firm also engages the services of in-house legal procurators who assist with judicial acts filed by the lawyers. Apart from litigation before the Courts, the firm also enjoys vast experience in local and international mediation and arbitration. Associates are certified mediators and managing partner Ann Fenech sits on the maritime arbitration panel of the Malta Arbitration Centre, currently acting as arbitrator on a number of cases. The firm prides itself on being able to handle any request from a variety of angles, thanks to our different areas of specialisation. Our aim has, and will always be, to assist our clients in resolving disputes efficiently and effectively in a manner that promotes their
Ann Fenech has recently represented ship owners Finaval S.p.a.
business objectives and with the aim of avoiding court or arbitration proceedings in favour
against Scorpio Ship Management Sam where the courts awarded
of out-of-Court settlements on terms most favourable to clients.
Finaval the largest award in Maltese legal history - $22,000,000.00. Dr
Commercial disputes have increased tremendously in the past year, which is a direct
Fenech is also involved in the magisterial enquiry seeking to establish
result of entities being unable to satisfy their obligations due to loss of business. Most
whether vessel ‘Sichem Pandora’ was involved in a collision with a
notably, in marine litigation we have gone from a situation last year of there being too few
trawler in the English Channel. Ann Fenech is also heavily involved in
ships, to a situation today where charterparties are being cancelled and owners are suing
suggesting legislative amendments to existing shipping law.
Brucher & Partners stands for efficient and tailored service, at reasonable costs which are defined in advance together with our clients. Our flexibility and commitment allow us to deal with urgent matters. Thanks to the modular organization of our practice we can offer
Switzerland
unparalleled reactivity to our clients needs. Our vision is to maintain a close relationship with our clients focusing on understanding their
Bär & Karrer Daniel Hochstrasser, Partner +41 58 261 50 00 daniel.hochstrasser@baerkarrer.ch
evolving needs and expectations which enable a better efficiency and reduced costs. The firm’s recent highlights: Jean Brucher has been successfully representing in front of the competent Luxembourg court an Austrian Bank in a litigation between shareholders of a Luxembourg investment fund and the fund in a matter initiated by the Madoff scandal.
Bär & Karrer (B&K) handles all types of commercial disputes, both in the Swiss courts and in international and domestic arbitrations. Our partners and associates bring their longstanding experience and international training and exposure to the table, and are thus able to handle complex disputes with international implications.
are no statutory mechanisms in Switzerland such as court-mandated mediation, as they exist in other countries. A successful mediation is undoubtedly a quicker and more efficient way to reach the clients’ goals than a full-fledged litigation or arbitration; the latter is also more attractive than litigation through three layers of courts. Furthermore, alternative dispute resolution is
Jean Brucher has been successfully representing a German investment advisor in front of the competent Luxembourg court in a litiga-
When we handle a case, we usually combine the experience and strategic focus of a
definitely more promising if the parties have an interest in saving a
tion with a Luxembourg custodian bank and a Luxembourg investment
partner with the skills and dedication of an associate, which leads to an efficient use of
relationship for future business contacts.
fund in order to get the annulment of an attachment on funds claimed
our resources to the client’s benefit.
by his client. He has also been advising and successfully represent-
The most important goal for our clients is to reach a satisfactory result with reason-
ing in front of the Luxembourg court the majority shareholder of a
able means and within the shortest time possible. Clients do not like or enjoy litigation;
Luxembourg holding company of a media group in a litigation between
it is a burden, not only financially, but also on the clients resources. We understand this,
shareholders regarding the control of the company, and successfully
and advise our clients to tailor the steps we take to ensure that we reach these goals.
defending two Luxembourg municipalities in front of the Luxembourg
When a chance for a settlement presents itself, we provide a reasonable assessment of
in commercial disputes in Switzerland, as Swiss banks have sold
administrative and civil courts in litigations concerning procurement
the pros and cons of continuing the fight as opposed to reaching a settlement.
financial products, particularly hedge funds, to Swiss customers,
contracts.
For a long time, Swiss courts, and in particular the Zurich Commercial Court, which
The global economic crisis will inevitably give rise to an increase
and many of these customers will be unwilling to bear the losses
handles most of the disputes arising in the business context, have been conducting so-
they have suffered. We have not seen a large number of these cases
executive of an international institution based in Luxembourg, which
called settlement hearings once the parties have submitted their written pleadings. The
just yet. However, this is not surprising, because there have been
had been victim of moral harassment, in its internal claim against its
courts try to encourage the parties to conclude a settlement based on a thorough analy-
attempts to create quasi class actions (something not provided for
employer for violation of the obligation of assistance in case of moral
sis of the strengths and weaknesses of the parties’ positions, thus allowing the parties
under Swiss law), and banks such as Credit Suisse have settled with
harassment imposed to this international institution. An amicable
to assess their procedural risks. It is sometimes a healthy reality check for a party to
a considerable number of their customers. We will have to wait until
settlement was found, including the payment of important damages to
hear from the judge that a case is risky, because, for example, that party may bear the
the dust settles in order to find out to what extent there will be Leh-
the executive and the granting of favourable status.
entire burden of proof for certain events underlying the claim. On the other hand, there
man Brothers and Madoff related litigation.
Nicolas Thieltgen has been successfully advising and assisting an
June 2009 Corporate INTL 29
Dispute Resolution
The Netherlands
Conway & Partners N.V. Shawn Conway +31 10 204 22 00 conway@conway-partners.com
Located in Rotterdam, the Netherlands, Conway & Partners N.V. is one of the few firms in the Benelux region with extensive experience in and almost exclusively focussed on international dispute resolution. As a boutique law firm specialising in international arbitration as one of our core practice areas, Conway & Partners has a team of lawyers trained in both the civil and common law systems who have a proven track record of successfully representing clients in complex matters.
USA
The Holmes Law Firm Reginald Holmes, Managing Partner +1 877 324 7237 rholmes@theholmeslawfirm.com
In the USA the resolution of disputes is encouraged through the use of alternative dispute resolution (ADR), particularly arbitration, via the Federal Arbitration Act (FAA). Almost every State jurisdiction has optional or mandatory programs compelling or encouraging litigants and potential litigants to arbitrate their disputes. These court annexed processes usually permit the participants to opt out of the results of the arbitration and proceed to court if they do not like the results. The chief advantage of ADR is that the parties are in control of the
Lawyers in our practice group have acted as counsel in cases submit-
resolution process. They can structure how the dispute will be resolved,
ted to arbitration under the rules of the ICC, SCC, WIPO, AAA, LCIA,
what remedies may be applied and where and when the dispute will be
and Netherlands Arbitration Institute, and in related court actions
heard. Perhaps the primary advantage of ADR is that parties may select
before U.S. and Netherlands courts, as well as the European Court of
‘the right Judge to guide the resolution of their dispute. An added bonus
Justice (Eco Swiss v. Benetton C–126 / 97 ECJ, 1 June 1999).
is that the entire process is completed out of sight of the public eye and
In addition to acting as counsel, members of the Conway & Partners international arbitration team are often appointed as arbitrators,
in complete confidentiality. Since the process may be customised according to need, it is suitable
including in disputes administered under the auspices of leading
to almost any dispute that may arise. However, it is often more suited
arbitration institutions and associations, such as the (UN) Perma-
for business to business disputes involving parties of equal bargain-
nent Court of Arbitration, Netherlands Arbitration Institute, London
ing power or resources. Even so, on many occasions, arbitrators have
Maritime Arbitration Association, and ICDR.
shown far greater sensitivity to remedying inequitable conduct than
In the Netherlands, the courts have a long history of supporting
judges faced with similar dilemmas. Judges often feel hamstrung by the
and respecting arbitration. This is one of the reasons, for example,
requirement for the rigorous application of black letter law, the need
The Hague is chosen as the seat of so many international judicial
to follow precedence and concern about the political consequences of
bodies. Dutch courts adhere to international standards when enforc-
their rulings.
ing arbitral awards. Currently, the Arbitration Act of 1986 (which
When seeking to resolve a commercial dispute the client should have
was based on the United Nations Model Law) is under review by the
a clear vision of what the ultimate outcome of the resolution should be,
Ministry of Justice and a new act is expected soon. The updated law
while paying particular attention to noting the pros and cons of the case
will likely bolster the use of arbitration in the Netherlands.
and the resolution environment. Once that is obtained and communicat-
In addition to the arbitration practice, Conway & Partners lawyers
ed, the focus should turn to marshalling the advisers and staff required
are also experienced litigators, and thus regularly act for parties
for the resolution of the dispute in a quick, efficient and cost effective
before the courts of the Netherlands. As our team also includes at-
manner that does not disrupt the ongoing business of the company. If
torneys qualified in various U.S. jurisdictions, we also act for clients
the matter is committed to ADR, the selection of an experienced neutral
in matters involving U.S. litigation. Likewise our team is at the fore-
with vast legal and industry knowledge is absolutely essential. There-
front of mediation and other forms of alternative dispute resolution,
after, advocacy counsel should stay focused on obtaining an optimal
nationally and internationally. Indeed, our founding partner testified
resolution rather than conducting lawsuit warfare.
as an expert before the Legal Affairs Committee of the E.U. Parliament concerning the European Mediation Directive. While Conway & Partners is regularly instructed by companies
The Holmes Law Firm focuses on providing neutral services, such as arbitrators, mediators, special masters, receivers and private judges, and strives to attain an alternative and neutral resolution of disputes
from many industries, our experience is largely centred on the engi-
across the full spectrum of human endeavour. Reginald A. Holmes and
neering and construction, energy and petrochemical, manufacturing,
The Holmes Law Firm’s resolution philosophy is grounded on the notion
and technology sectors. Recent cases have involved infrastructure
that every dispute or conflict can be orderly resolved in a structured
and industrial projects in the Middle East, Europe and North Ameri-
fashion provided that the resolution of the dispute is desired by the
can and technology disputes arising out of ventures in Asia.
parties.
Many lawyers will be at home with procedures within their own
The firm primarily focuses its efforts on cases concerning inter-
jurisdiction, but few will have the knowledge and background to ef-
national business, technology exchange and distribution disputes,
fectively manage multi-jurisdiction disputes. Parties seeking counsel
Intellectual Property rights determination, valuation and infringement
to assist them should look for lawyers who are practically minded,
matters, Government contracts, employment and wrongful termina-
aware of alternative methods of dispute resolution, and well versed in
tions, real property disputes, construction and infrastructure disputes
the complexities of cross-border disputes.
and complex business to business disputes.
30 Corporate INTL June 2009