Arbitration and Mediation in Commercial Disputes

Course content

The course focuses on two most popular alternative dispute resolution (ADR) mechanisms of resolving commercial cases. In recent years, arbitration and mediation have enjoyed unprecedented success on a global scale, and have largely replaced domestic litigation in the area of private disputes as professional, custom-tailored, flexible and time-efficient mechanisms. The course offers a highly practical opportunity to gain knowledge and acquire professional skills needed in international business environment.

 

The module is taught by experienced dispute resolution professionals, who combine high academic standards with a very practical approach to teaching. Course participants will have an opportunity to gain knowledge and practice their skills in a variety of individual and team exercises, including drafting arbitration and mediation clauses, as well as procedural documents; strategy building; negotiation sessions; and mock proceedings. The module includes a field trip to the Danish Institute of Arbitration and special guest visits of senior dispute resolution professionals.

 

The course acquaints participants with key characteristics of arbitration and mediation, and guides them through subsequent procedural stages of each of the mechanisms. Practical exercises will be conducted, regarding such issues as: selection of arbitrators/mediators; preparation for proceedings; conduct of hearings and presentation of evidence under different procedural standards; enforceability of awards and settlements.  

 

Both arbitration and mediation can be utilized as standalone dispute resolution processes. However, they can also be combined into sequential hybrid mechanisms in order to suit exact needs of the parties and demands of a specific case. The course will demonstrate how this can be successfully achieved, including such variations as: mediation in the form of a pre-arbitration dispute settlement process (as seen in the FIDIC construction contract conditions); Med-Arb (where the same mediation panel is turned into arbitration one, in case settlement is not achieved); and Arb-Med (where settlement attempt is made after arbitration proceedings were commenced).

 

The following main topics will be discussed:

 

  • Introduction: the role of arbitration and mediation in commercial disputes

 

Part I: Arbitration

  • Choosing to arbitrate: ad hoc and institutional arbitration. The role of arbitration venue and rules of procedure. Arbitration agreement.
  • Arbitral tribunal: qualifications, appointment and powers
  • Applicable law       
  • Course of proceedings; evidence
  • Arbitral awards: challenge, recognition, enforcement

Part II: Mediation

  • Mediation agreement. Evaluative, facilitative and transformative mediation.
  • Mediation Panel: qualifications, selection and appointment of mediators, scope of powers
  • Conduct of the mediation process. Role of the panel and of the parties
  • Settlement agreement and its legal effects. Enforcement (enforceability).

Part III: Hybrid Processes and Specialized Areas                                                        

  • Mediation as a pre-arbitration process. Before the same or a different panel?
  • Arb-med. Costs; limits of disclosure and cooperation by the parties; expertise and soft competences of arb-mediators and med-arbitrators
  • Construction disputes and FIDIC standards
  • Maritime arbitration

New trends in resolution of commercial cases

Learning outcome

Upon completion of the course, the students will be – in terms of:
 

Knowledge:

  • Familiar with key concepts of arbitration and mediation law and practice
  • Aware of differences between both mechanisms of dispute resolution and legal outcomes of both processes
  • Well-acquainted with possible combinations of both processes, their advantages and disadvantages
  • Familiar with relevant arbitral case law and jurisprudence of domestic courts

Skills – able to:

  • Draft arbitration and mediation agreement, as well as procedural documents
  • Analyze relevant rules of procedure, explain their purpose and scope of application
  • Formulate and communicate arguments in oral proceedings in a manner which is professionally and linguistically correct, well-structured and coherent

Competences – prepared to:

  • Select the most adequate method and build a successful dispute resolution strategy befitting the demands of a specific contract/case
  • Present arguments for and against different available solutions in a structured and coherent manner that demonstrates a good overview of and insight into commercial dispute resolution law and practice, as well as the ability to make a qualified choice between these solutions
  • Establish a well-informed basis for selection of arbitrators/mediators, suitable for a specific dispute
  • Build a coherent enforcement/challenge strategy regarding arbitral award

The course is aimed at development of professional skills and competences in commercial dispute resolution along with transfer of knowledge. As a consequence, it incorporates a wide range of individual and team exercises and interactive tasks, conducted in class and in the digital form.

Planned learning activities include: drafting exercises re: arbitration and mediation clauses; preparing procedural documents; strategy building exercises for selection and conduct of dispute resolution processes; negotiation sessions; mock proceedings (arbitration and mediation simulations); case study and case presentations; hypo solving; and digital quizzes.

The course also seeks to expand the participants’ contacts with arbitration and mediation practice through the field trip to the Danish Institute of Arbitration and via invited contributions by experienced dispute resolution practitioners.

Recommended literature is a selection of materials (book excerpts, articles, commentaries), provided by the instructors and including the following sources:

 

  • Gary B. Born, International Commercial Arbitration. Wolters Kluwer Law & Business (2020)
  • Joanna Jemielniak, Legal Interpretation in International Commercial Arbitration. Routledge (2014)
  • Joanna Jemielniak and Stefanie Pfisterer “Iura Novit Arbiter Revisited: towards a Harmonized Approach?” In: Uniform Law Review, 2015/20(1): 56-80
  • Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Disputes. Jossey–Bass (2014) 4th Edition.
  • Jacqueline Nolan-Haley, "Mediation: The New Arbitration," Harvard Negotiation Law Review 17 (2012): 61-96
  • Redfern and Hunter on International Arbitration, Oxford University Press (2023)
  • Thomas J. Stipanowich, “Arbitration, Mediation, and Mixed Modes: Seeking Workable Solutions and Common Groundon Med-Arb, Arb-Med, and Settlement-Oriented Activities by Arbitrators”, Harvard Negotiation Law Review 26 (2021): 265-362
  • Heather Scheiwe Kulp, "A Tightrope over Both Your Houses: Ensuring Party Participation and Preserving Mediation's Core Values in Foreclosure Mediation", Pepperdine Dispute Resolution Law Journal 14, no. 2 (2014): 203-244.
  • Terkildsen and Lysholm Nielsen: “Arbitral Tribunals and Article 267 – the Danish by-pass Rule.” In: Ch. Klausenegger, P. Klein, F. Kremslehner,. A. Petsche, N. Pitkowitz, J. Power, I. Weiser, G. Zeiler (eds), Austrian Arbitration Yearbook (2012; pp. 196-205)
  • Tibor Várady, John Barceló III , Stefan Kröll , Joan Von Mehren,  International Commercial Arbitration - A Transnational Perspective (American Casebook Series), West Academic Publishing (2018)

 

It is illegal to share digital textbooks with each other without permission from the copyright holder.

Familiarity with international commercial contracts would be advantageous.

The participants should have working command of the English language.

Oral
Individual
Collective
Continuous feedback during the course of the semester
Peer feedback (Students give each other feedback)
ECTS
15 ECTS
Type of assessment
Home assignment, 3 days
Type of assessment details
Assigned written individual assignment, 3 days
Aid

Read about the descriptions of the individual exam forms, including formal requirements, scope and deadlines in the exam catalogue
 

Read about practical exam conditions at KUnet
 

Marking scale
7-point grading scale
Censorship form
No external censorship
Exam period

13-16 December 2024

Re-exam

31 January - 3 February 2025

Single subject courses (day)

  • Category
  • Hours
  • Preparation
  • 356,5
  • Seminar
  • 56
  • English
  • 412,5

Kursusinformation

Language
English
Course number
JJUA55308U
ECTS
15 ECTS
Programme level
Full Degree Master
Full Degree Master choice
Duration

1 semester

Placement
Autumn
Price
  1. Students enrolled at Faculty of Law or holding a pre-approval: No tuition fee
  2. Professionals: Please visit our website  
Schedulegroup
Please see timetable for teaching time
Studyboard
Law
Contracting department
  • Law
Contracting faculty
  • Faculty of Law
Course Coordinators
  • Joanna Lam   (10-7176687575683573687447717c7935727c356b72)
  • Atakilti H Gebremichael   (17-6f826f79777a82773c757b7771766f737a4e7883803c79833c7279)
Saved on the 30-04-2024

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