JAMS International ADR Blog

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Factors to consider in choosing a seat of arbitration

by Luke Lofthouse on 23 Mar 2017

In recent years, the arbitral process and applicable rules have, according to some commentators, become greatly homogenised. In light of this, the concept of the arbitral seat, fixing it to one location so as to take advantage of a given country's legal system, has seemingly diminished in importance. Indeed, the rise in ostensible "delocalised awards" has produced outcomes for parties that are not seen as solely dependent on the legal order of the country in which they were issued. The New York Convention’s reformulation of the 1927 Geneva Convention has enabled awards to be enforced in all signatory countries. In many cases, parties no longer need to be concerned with a prior declaration of enforceability when seeking enforcement outside of the award-origin country.

So, do parties still care?

This mutuality of recognition belies the fact that many parties to arbitration agreements place the choice of seat at the forefront of their considerations. In a survey entitled "Choices in International Arbitration", White & Case identified the legal infrastructure of the seat as parties' most important factor (62 per cent) when deciding where to base an arbitration. Within this choice, parties identified: the national arbitration law, the track record of enforcing agreements to arbitrate/arbitral awards in that jurisdiction, and its neutrality and impartiality as to why they would specifically focus on where a seat of arbitration is located.

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Why might you choose to mediate?

by Luke Lofthouse on 17 Mar 2017

During his keynote address to the Civil Mediation Conference 2015, Lord Neuberger advanced his view on the economic advantages of mediation in today's climate: "Ever more attractive… litigation is becoming ever more expensive and time-consuming; the law is getting increasingly complex; legal aid is ever more attenuated; and, court fees are being increased markedly." The senior judge described this as an "almost perfect storm of financial difficulties", which risks "depriving most ordinary people of access to justice". It was his contention that, given these circumstances, mediation represents a more than satisfactory alternative to litigation.


Indeed, in the context of corporate disputes, the English paradigm following Halsey v Milton Keynes General NHS Trust [2004] is to impose cost sanctions on parties that act unreasonably in refusing to mediate. Subsequent case law has highlighted the inherent contradiction in this policy (in Wright v Michael Wright Supplies Ltd & Anor [2013], Sir Alan Ward in the Court of Appeal commented in strong terms on the difficulties of persuading intransigent parties to mediate). That is that, to force the unwilling to mediate is a flawed premise – mediation requires willing cooperation from both parties from the beginning to work. However, from a financial perspective, even if the dispute is acrimonious, it makes sense to choose to mediate from the outset.

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Brexit - is this the end of pan-European patent dispute resolution?

by Richard Price on 16 Mar 2017

For over 40 years, resolving European cross-border disputes about patents in one proceeding has been a dream. The solution, by way of a new European Unified Patents Court ("the UPC"), was until the summer of 2016 within touching distance. Following the Brexit vote, that vision has become more of a mirage. 

Why is this so? Many people, in business, in-house and private practice lawyers around the world and members of the European judiciary, plus civil servants, invested a huge amount of time and thought in producing a pan-European litigation system which had a good chance of working. It would not be suitable for every dispute, but it had excellent prospects of working for many. The reason is that it was a creative and practical blend of the civil law and common law systems which underlie the EU. The national civil law jurisdictions typically have no live witnesses, no cross-examination, no discovery. The national common law systems, or ones like them as in Denmark, have all of those. The genius of the UPC was to introduce fact and expert evidence, cross-examination of witnesses and limited discovery of documents in a targeted way. And to get to trial in twelve months.

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Comparing arbitration and litigation costs

by Luke Lofthouse on 15 Mar 2017

Reducing litigation and arbitration down to a binary assessment on cost is difficult. While it is generally now accepted that lawyers' fees for both routes are broadly commensurate, other variables – principally, administrative costs – confuse things somewhat. Any analysis as to cost should also take into account the context of the case itself: is it complex and/or cross-jurisdictional, for example?

Nevertheless, it is possible to analyse how allocation and recoverability of costs will ultimately affect a given case's bottom line – what a party actually spends/gets back. It is these two areas that will principally delineate the better-value option in the end.

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The psychology of bias: decision makers in the arbitration process

by Luke Lofthouse on 07 Mar 2017

As globalisation/economic liberalisation has fuelled international arbitration's status as the preferred adjudicatory process between corporate entities in cross-border disputes, arbitration has likewise proliferated in domestic US contracts - affecting not just corporate, but also public life. What are routine contractual clauses in the framework of corporate deals now regularly appear when one rents a car, gives birth, is fired or enters into credit agreements. In light of such proliferation and the size, scope and gravity of the matters determined, decision-maker bias in the arbitration process is a pressing concern for the arbitral community and its users.

The idea that a given arbitrator will always have either an element of inherent personal bias (affiliation bias), or have been selected so as to be favourable to one party (selection bias), becomes particularly unsettling when investor-state arbitration has empowered arbitrators to influence public policy. The power of arbitration tribunals to find states in violation of their treaty or contractual commitments, specifically evidenced in Philip Morris' high-profile actions against Australia and Uruguay's antismoking legislation, is a power few entities have. Insulated from judicial oversight, and unencumbered by precedent, the question of arbitrators' biases (from both aforementioned angles) is then something that must be taken seriously.

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Mediation advocacy: best practice in preparation and openings

by Matthew Rushton on 24 Feb 2017

Plotting your moves and strategy prior to a mediation is critical: "Don’t plan so much that you’re trapped by it," warns one mediator, "but if you want to go from no settlement to settlement at a figure which is acceptable, without a plan of how to get there, you won't. If you don’t think it through everything will be a surprise."

One should, as far as possible, anticipate the other side's moves; have a clear idea of what points the other side are going to home in on, and plan a response.

"You have to think: what are we going to say when the mediator comes in and asks about issue A?" offers one mediator. If it's a money case, you need to plan how early you want to start talking about money. "It's something that the parties have considerable control over," says one mediator. "You have to pick your moment. Can you browbeat the other side? Will you get a better settlement by drawing the process out into the early hours? You need a plan, even if it's a wholly imperfect plan, which it will be," he says.

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3 themes shaping the UK mediation market

by Matthew Rushton on 23 Feb 2017

Taken from a presentation at the inauguration of Oxford University's ADR Society

I've picked three broad themes to discuss this evening as we think about ADR in the UK market. In doing so, I hope to reflect on the purpose of ADR, its importance to society in general and the importance of continued support for ADR from those of you with less grey hair than me.

My first theme is the proliferation and growth in ADR; my second is generational change and its effect on the practice of mediation; finally I'm going to offer some thoughts on competition: that is, competition between individuals and, as importantly, competition between ADR processes.

1. Proliferation 

Let me start, then, with proliferation. The story of the last decade in mediation circles, I believe, has been one of growth. Not simply in absolute numbers, but in the extraordinary spread and diversity of contexts in which mediation is currently used.

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Facilitative vs. evaluative mediation

by Philip McMullan on 16 Feb 2017

As a form of alternative dispute resolution (ADR), mediation is becoming increasingly prevalent across many jurisdictions throughout the world. For example, Singapore's Ministry of Law brought forward a Mediation Bill late in 2016, which aims to support international commercial mediation by enacting stay of court proceedings provisions as well as strengthening the enforceability of mediated settlements. There are a number of factors behind the growing popularity of mediation: increasing pressure on budgets for in-house legal teams means that litigation is no longer automatically the go-to route to settlement. Court systems which are over capacity have led to more jurisdictions mandating mediation as part of the dispute resolution process. And of course, as this blog has written about previously, mediation can allow for cheaper and quicker resolution of a dispute, particularly where there is an on-going commercial relationship.

Mediation’s success has focused minds on the best way to conduct the process to reach an acceptable outcome for all parties.

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Cross-border arbitration under JAMS International Arbitration Rules

by Matthew Rushton on 13 Feb 2017

JAMS, the parent company of JAMS International is best known as a market-leading mediation provider. However, domestic and international arbitrations comprise some 3,000 case filings and over 30 per cent of revenue. JAMS' reputation as a top-tier source of arbitrators owes much to both the experience of its panellists and to JAMS' ongoing internal training programmes.

In 2011, JAMS International, a wholly owned subsidiary of JAMS, was launched, serving as both the international headquarters of JAMS - specifically managing disputes heard outside of the Americas - and as the home of the UK panel of independent mediators and international arbitrators.

JAMS and JAMS International handle multiparty, complex cases in virtually all areas of the law in hearing locations throughout the world. Such matters include antitrust, bankruptcy, business, class action, commercial, construction, construction defect, e-discovery, education, employment, engineering and construction, entertainment and sports, environmental, family, financial, franchise, government, healthcare, insurance/ reinsurance, intellectual property, landlord/ tenant, lender liability, licensing, patents, pharmaceutical disputes, professional malpractice, marital dissolution, mass tort, partnership, personal injury, probate, product liability, public policy, real estate, securities, toxic tort, and trusts and estates matters.

In this post, we will outline the arbitral procedure before JAMS International.

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An overview of mediation and the insurance industry

by Philip McMullan on 26 Jan 2017

Disputes are endemic in the insurance industry, and though better controlled now than in previous decades, room for improvement remains. Policy wording is increasingly consistent and less open to interpretation, but liability and converage disputes are encoded in the industry's DNA.

Where disputes are so commonplace, it would be natural to assume that companies would look to ADR as a more efficient and effective means of resolving issues. While the insurance sector is a big user of arbitration for large commercial disputes, take up of mediation services remains relatively low, particularly in areas like personal injury, property and employment, where it might prove most useful. What's more, the UK is certainly behind other jurisdictions, notably the US, in using mediation as a quicker and more cost-effective means of resolving issues.

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