International arbitration: 'Marriage guidance for business'

By James Melik
Reporter, Business Daily, BBC World Service

image captionGlobal companies may have treaties which need resolving by arbitration

Resolving multi-billion dollar disputes between the world's biggest companies has been likened to the equivalent of marriage guidance for businesses.

The business of overseeing the resolution of disputes between large companies is booming.

Between 4,000 and 5,000 disputes went for arbitration in 1992, whereas in 2011 that figure was 12,000 according to research by Prof Loukas Mistelis, director of the School of International Arbitration at Queen Mary University in London.

"Arbitration is penetrating more regions in the world - Brazil and Latin America for example, but also China and India," he says.

"It could take 15-20 years for something to go through the courts in India.

He says that banks, insurance companies, telecoms and life-science companies have been using international arbitration for decades.

But are companies who sign up for arbitration bound by the final decision or do they accept it on a voluntary basis?

Prof Mistelis describes it as a "pre-nuptial agreement made at the time of the flirting, when the parties make a substantial agreement, with a possible exit strategy in case things go wrong".

He explains that once they have validated an agreement after the flirting, the agreement would be valid if either side refused to participate.

"The basis is consent but once consent has been given, in the majority of the cases both parties participate."

Setting the rules

He points out that initial agreements will often have a governing law clause, details that decide a type of arbitration, and typically choose where they are going to arbitrate if the need arises - generally a disinterested venue.

"That is why you have places like France, Switzerland and England being very popular venues, where the courts are very clear not to interfere with the arbitration process," Prof Mistelis says.

"The actual process of arbitration is very similar to court proceedings, less formal, a bit less rigid, in the sense that the parties and arbitrators build up the case as they go along while in a court there is not much flexibility and the rules are very formal," he says.

"Moreover, arbitration technically has absolute finality. The only review of the decision you can make is for procedural mistakes. You cannot have a review saying the law has been applied wrongly or the judgement is not very sound," he asserts.

Explaining why arbitration is more satisfactory than taking a dispute through the courts, he says: "Arbitration is more enforceable than foreign judgements. The US does not have a single agreement with any country to mutually recognise each other's decision."

Furthermore, parties cannot choose the tribunal panel, they have the confidence that is has the ability and the expertise to deal with the complexity of the dispute.

"Another characteristic is that arbitration is a neutral process - you do not hold it in one party's jurisdiction, you take it to a neutral venue," he says.

"Finally there is the question of confidentiality - you can discuss industrial secrets or the attitudes of corporations that you don't want to air in public - and that is the best place to do it."

Costly judgements

It is not just companies that determine their fates by arbitration - countries can also find themselves party to contracts being decided by arbitration tribunals.

Over the past few decades many countries have entered into bilateral investment treaties with one another, designed to grow their foreign trade.

Written into the treaties are clauses which allow private firms from one country to take an entire governments to international arbitration in the event of a dispute.

image captionRonald Lauder received a substantial sum from the Czech government after arbitration

"Arbitrators can hold whole states to account for the way they treat foreign investors," says specialist lawyer Larry Shore in the New York office of Gibson, Dunn and Crutcher.

"For example, the Czech Republic has been the respondent of these bilateral investment treaties and in a couple of instances - a very major instance in 2003, the government was hit by an award for over $320m (£198m; 248m euros)"

Because a foreign company had been deemed to have had its rights violated by the state, that judgement resulted in a rise in the tax rate for the citizens of the Czech Republic.

The case had involved Ronald, son of the cosmetic mogul Estee Lauder.

In the 1990s he invested in a Czech television company and the dispute arose when his partner broke off the deal, depriving him of his investment.

"Cases like this have made companies and countries alike take notice," says Mr Shore.

"International arbitration has expanded to have a tremendous impact on how states, who enter into these treaties, and virtually all states do, exercise their regulatory administration of all sorts of economic matters within the state," he concludes.

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