Private Dispute Resolution in International Business: Negotiation, Mediation, Arbitration more

Transnational Dispute Management transnational-dispute-management.com Issue : Published : Vol. 4, issue 1 February 2007 Private Dispute Resolution in International Business: Negotiation, Mediation, Arbitration by K.P. Berger - a book review by A.F.M. Maniruzzaman About TDM TDM (Transnational Dispute Management): Focusing on recent developments in the area of Investment arbitration and Dispute Management, regulation, treaties, judicial and arbitral cases, voluntary guidelines, tax and contracting. Visit www.transnational-dispute-management.com for full Terms & Conditions and subscription rates. Open to all to read and to contribute Our aim is for TDM to become the hub of a global professional and academic network. Therefore we invite all those with an interest in Investment arbitration and Dispute Management to contribute. We are looking mainly for short comments on recent developments of broad interest. We would like where possible for such comments to be backed-up by provision of in-depth notes and articles (which we will be published in our 'knowledge bank') and primary legal and regulatory materials. Please contact Editor-in-Chief Thomas Wälde at twwalde@aol.com if you would like to participate in this global network: we are ready to publish relevant and quality contributions with name, photo, and brief biographical description - but we will also accept anonymous ones where there is a good reason. We do not expect contributors to produce long academic articles (though we publish a select number of academic studies either as an advance version or an TDM-focused republication), but rather concise comments from the author's professional ’workshop’. TDM is linked to OGEMID, the principal internet information & discussion forum in the area of oil, gas, energy, mining, infrastructure and investment disputes moderated by Thomas Wälde. Editor-in-Chief Thomas W. Wälde twwalde@aol.com Professor & Jean-Monnet Chair CEPMLP/Dundee and Principal Thomas Wälde & Associates © Copyright TDM 2006 TDM Cover v1.1 Private Dispute Resolution in International Business: Negotiation, Mediation, Arbitration – Vol.I. Case Study and Interactive DVD-ROM and Vol.II Hand Book by Klaus Peter Berger, Kluwer Law International, 2006, ISBN 90-411-2499-3, Euro. 75.00. In international business the best thing would be to have no dispute at all. But we do not live in the ideal world, and no wishy-washy thinking can go far in the real world. In any human relationship dispute is probable, though not inevitable. It is amusing to remind one of what Herbert once said: “The conception of two people living together for twenty-five years without having a cross word suggests a lack of spirit only to be admired in sheep.”1 In international business relationships, where so much is at stake on both sides and so much is the tension of conflict of interests in case things go wrong between the parties, disputes may seem to be at the corner and no long waiting to experience one may be needed. In order to address such eventuality, the parties to international business contracts provide for various alternative dispute resolution (ADR) mechanisms such as negotiation, mediation, arbitration and so on. Of them, some methods are more popular than others with business people. Parties’ preference of one to the others depends on various factors indeed. Often the type of the dispute, the complexity of the dispute and even the culture of the parties could be the determinative factors for the choice of the method. Private dispute resolution in international business by various alternative methods has been a growing phenomenon in the recent past and in its wake many national, regional, intraregional and international institutions have been established to respond to the increasing demand worldwide. Besides traditional institutions for international commercial disputes, many specialist dispute resolution institutions have also been established in various dotted places on the globe to deal with specific types of disputes. For example, though not with exclusive jurisdiction, the WIPO Arbitration and Mediation Centre deals with intellectual property disputes, the ICSID with foreign investment disputes between a State or a State entity and a foreign investor, and the International Center for Letter of Credit Arbitration (Washington, D.C., U.S.A.) with letters of credit disputes. It 1 Quoted (Alan Patrick Herbert) in Louis T. Wells & Rafiq Ahmed, Making Foreign Investment Safe: Property Rights and National Sovereignty (OUP, 2007), p.66. 2 just shows how private dispute resolution has received a serious attention and more so a new momentum with ever mounting-up caseloads in various forums for over a decade now. The recent years have also witnessed a surge in growing literature in the field. Unlike any other publication, the present book under review bears special characteristics which mingle both academic and practical features. Basically, the book, comprised of two volumes, is a unique teaching manual for alternative methods of private dispute resolution. The book is a substantial expansion of and improvement on its precursor “Arbitration Interactive” written by the author a few years earlier. The book not only represents the author’s enviable knowledge in the field but also his practical insights into many dayto-day issues of various methods of private dispute resolution in international business. The book as a package distinguishes itself from the traditional texts on the subject available in the market in a number of ways. It consists of three items: the Case Study (Volume I), the Handbook (Volume II) and the DVDROM attached to Volume I. Furthermore, it includes the facility of a homepage on the internet (www.private-dispute-resolution.net) which provides regular updates of information that relate to the book. This means that the book will be in use for many years to come unless the fundamentals of dispute resolution that the book represents change overnight. The book considers ADR in a broader sense (p.47, volume. II) and it focuses on three important methods of ADR in international business such as negotiation, mediation and arbitration. The Case Study (volume I) that depicts the case developments is divided into three Parts and organised into twenty-nine Scenarios. Part One (Scenarios 1-5) deals with negotiations, Part Two (Scenarios 6-15) with international business mediation and Part Three (Scenarios 16-29) with international commercial arbitration. The case progresses at stages from negotiation to mediation to arbitration on the same factual backgrounds with the same disputing parties. The accompanying DVD-ROM has video clips of various Scenarios of negotiations, mediation, and arbitration as the case progresses step by step from one stage of dispute resolution to the next as 3 described in the Case Study (volume I). In addition to Videos, the DVD-ROM contains six other buttons in the main menu: ’Parties and Persons’, ‘Case Development’, ‘Documents and Events’, ‘Materials’, ‘Soft skills’, and ‘Links’. These buttons have specific functions to provide loads of information of the aspects for which the buttons bear the respective titles. The DVD-ROM includes many more features too. The interesting thing is that the ‘Documents and Events’ button includes the relevant documents in pdf files produced by the parties during the contract negotiations, the mediation and the arbitration. The students of private dispute resolution and early career professionals will find the documents very useful. Furthermore, the button ‘Materials’ provide various arbitration laws and rules as a ready reference. The learning process and experience offered by the package have been enriched by the active involvement of different well-known professionals and practitioners featured in the video clips in different roles in the different options of private dispute resolution. The Handbook (volume II) answers all the questions, which the Case Study poses in each Scenario, with a comprehensive list of ‘Issues Covered’ in the Answers at the outset of each Scenario. The discussions generated by the questions are extensive and they contain many practical tips in various contexts. Apart from the essential principles of various ADR methods, the book deals with many tricky issues which many experienced professionals in the field will find quite interesting. The author suggests that the Handbook can be used in various ways. First and foremost, this is the companion volume as it obviously relates to the Case Study (volume I). The Handbook can also be used, as the author asserts, as a general reference manual for the law of international commercial arbitration, albeit from an objective perspective which a conventional textbook does not represent. It is objective in the sense that the reader is set to learn certain aspects from the discussions that directly relate to the various Scenarios featured in the DVD-ROM and also indicated in the Case Study. Based on the interactive nature of the whole package, the author recommends an integrated approach that the books, DVD-ROM and the homepage should be used simultaneously for the maximum learning efficiency. 4 However, certain aspects of the book could still be improved. For instance, although the ‘Soft skill’ button in the DVD-ROM includes ‘Summary Guide to Effective Legal Negotiation’ (prepared by Professor Charles B. Craver from George Washington University, U.S.A.), the five phases of mediation, and communication in mediation, something seems to be missing there. A document summarizing the cultural differences and their probable impacts on negotiation and mediation in a cross-cultural milieu of dispute resolution (despite the matter’s brief treatment in the 2nd Scenario in the Handbook) could be added to enrich the collection under this button as an item for ready reference like the others. The button could also include certain practical tips for award writing and aspects of a flawless award with illustrations. The package as a whole represents a unique teaching method for private dispute resolution in international business. It will be of great use in University courses on the subject, specialist training programmes, specific themed workshops for in-house lawyers, managers and business executives, and in training and exercises for international moot competition. It is also a very useful and versatile learning toolbox and it is a great delight to use. Above all, the price is reasonable, and the benefits that are to be gained from the package will far outweigh the money to be invested in its purchase. It is highly recommended to any anyone with an interest in ADR in international business. Professor A F M Maniruzzaman Professor of International and Business Law University of Portsmouth, United Kingdom.