Increasing cross-border trade inevitably brings an increase in the number of cross-border disputes. The requirement for swift, impartial and respected dispute resolution means that people are more frequently choosing international arbitration as the preferred dispute resolution mechanism.

International procedures
A prime attraction of arbitration as a means of dispute resolution is its delocalised nature. Frequently, the parties are multi-jurisdictional corporations, sovereign or quasisovereign entities. The flexible approach adopted by most arbitrators to issues of evidence and procedure enables the use of legal teams with members from different jurisdictions appearing before arbitrators from diverse jurisdictional backgrounds.

Indeed, just as arbitration aficionados talk of a “delocalised international arbitration bar”, it is not too farfetched to say that the rules and administration processes of the major international arbitration associations come as close as possible to international commercial law and procedure.

Local perspectives
While the “delocalised international arbitration” bar may inhabit the departure lounges and first class cabins of the world’s favourite airlines, it would be a mistake to ignore how important it is to have access to experienced, locallybased arbitration lawyers if international arbitration is to be effective. The local lawyers must be familiar with their own domestic arbitration law and skilled in the effective and rapid use of their courts.

Beyond the specific requirements of relevant domestic law, skilled arbitration lawyers will be able to give guidance on the particular whims and demands of their domestic judges towards the arbitration process.

Prompt access to such advice is important because it is only when the process of international arbitration descends to local legal and procedural issues (such as what views a local court will take of the enforcement of an international arbitration award) that the process becomes an enforceable and hence meaningful one. Even a basic analysis of the laws relating to enforcement of international tribunal awards will show that the New York Convention is not the automatic international master key to worldwide enforcement that its architects had wished.

Rapid responses
Perhaps even more important than the issue of enforcement of awards is the swift obtaining of local injunctive relief to compel parties to respect their contractual obligations to arbitrate. It is through such ready access to local courts that abuse of the arbitration process through the institution of competing domestic litigation before the local courts (very often the forum it was the very purpose of the arbitration agreement to avoid) may be prevented.

Unless such relief is sought promptly, local proceedings may become too far advanced to be effectively halted. The obtaining of such protection frequently requires a detailed understanding of the perceptions of local judges and the legal and cultural niceties of the relevant jurisdiction, especially where the courts may lean towards astute protection of a constitutional right to litigate, notwithstanding an earlier contractual choice of compulsory arbitration.

Effective enforcement
On a more benign level, ready access to skilled arbitration lawyers across the major commercial jurisdictions will mean access to a wide choice of potential arbitrators, enabling the appointment of individuals with the right combination of legal, business and cultural skills. Appointing arbitrators with appropriate language skills and cultural backgrounds may have a significant impact on whether or not an award is ultimately respected by the parties and even by the local courts upon which enforcement may depend.

Early measures
Those responsible for drafting dispute resolution clauses in the commercial agreements are increasingly giving consideration to the inclusion of compulsory mediation. Even where no such contractual willingness has been incorporated, there is an increasing willingness to attempt the resolution of disputes through the use of mediation. The recent publication by the ICC of its “amicable dispute resolution” rules is a major step forward in the use of ADR alongside arbitration. Consensual methods of dispute resolution frequently depend for their success upon an astute understanding of the background to a dispute, in particular of local cultural and presentational issues. This is an area where prompt access to lawyers attuned to these issues is particularly important.

As the world economy becomes ever more globalised, the requirements for swift, impartial, respected and consequently effective dispute resolution are ever more likely to be met through international arbitration. In such a globalised environment, the need for rapid access to the best dispute resolution lawyers familiar with their domestic arbitration laws and the rules and procedure of the leading international arbitration associations should not be overlooked in favour of the “delocalised international arbitration bar”.

DLA and Partners
DLA and Partner’s international arbitration lawyers are familiar with the domestic and international arbitration associations, regulations and practices worldwide. DLA and Partners gives you access to individuals with the right blend of legal, business and cultural skills, all of whom can be co-ordinated through your chosen point of contact locally.

DLA and Partners was established in response to demand from businesses for legal services in an increasingly borderless environment. Bringing together full service law firms to provide an integrated international solution, DLA and Partners has over 1,950 lawyers in 33 offices in all major European cities, Singapore, Thailand, Hong Kong and the People’s Republic of China.

For further details please contact:
David Church
Chief Operating Officer
DLA and Partners
106 Avenue Louise
B-1050 Brussels
Belgium
Tel: +32 2 500 1672/1679
Fax: +32 2 500 1602
E-mail: david.church@dla.com
Website: www.dla.com