February 2009

International Commercial Arbitration: ADR in Cross-Border Busimess Disputes (page 1)

International commercial disputes are increasingly resolved out of court, in private tribunals run by arbitrators who are chosen by the parties. Arbitrations are conducted worldwide, and it is important that businesses and their legal advisors are well-versed in the operation arbitration and alternative dispute resolution.

This essay reviews the principal mechanisms for resolving international commercial disputes and the advantages and disadvantages of each. It discusses arbitration, mediation and litigation.

International Commercial Arbitration: ADR in Cross-Border Busimess Disputes (page 2)

The Dispute Resolution Clause

Arbitration clauses can be a single sentence or can include a detailed protocol for dispute resolution. Below is a checklist of topics to be considered:

International Commercial Arbitration: ADR in Cross-Border Business Disputes (page 3)

Ad Hoc v. Administered Arbitrations

Arbitration is either "ad hoc" or "administered." The parties must decide which method is preferred. Each has its own merits.

In an ad hoc proceeding, the parties privately manage their arbitration. This ensures complete privacy and control. In addition, the parties and arbitrators either develop their own rules or use recognized standards to govern their ad hoc proceedings.

International Commercial Arbitration: ADR in Cross-Border Business Disputes (page 4)

Mediation: Facilitative Alternative Dispute Resolution

Mediation is a non-binding form of facilitative dispute resolution.25 It is a conflict resolution variant of "thin-slicing," the ability of the human subconscious to identify patterns and make responses based on very quick "slices of experience."