CONSULEGIS AND INTERNATIONAL COMMERCIAL ARBITRATION

November 2006

A burgeoning field in international law

American and British lawyers have discovered an exploding market for their services in international arbitration - in Europe and now in Hong Kong. In this brief discussion, I first note the advantages of international arbitration that have led to its phenomenal growth and then explore some of the ways in which Consulegis might capitalize on the opportunity presented by international arbitration.

The advantages of international arbitration over litigation

Since mediation is a means of effecting the settlement of a dispute, and arbitration only comes into play if negotiations or mediation fail, the two dispute settlement mechanisms are complementary. No such complementarity exists, however, between international commercial arbitration and litigation.

First, it is important to understand that there is no such thing as 'international litigation' since an action is confined to the court of the jurisdiction in which it is brought, and a decision by that court may not be enforceable in another jurisdiction. Also, a court may be reluctant to hear a dispute unless there is some geographical connection between the disputed issues and the court's jurisdiction.

International commercial arbitration, on the other hand, affords a truly international solution: (i) the parties choose where the arbitration will take place, the language of the arbitration, and the arbitrators themselves; (ii) the parties' advocates are, with very few exceptions, not required to be licensed to practice in the place of arbitration; and (iii) most importantly, thanks to international treaties, arbitration awards are enforceable almost anywhere in the world. International commercial arbitration is truly supra national and is superior to litigation for international business.


Exploitation of the business potential of international commercial arbitration by Consulegis

What can Consulegis as an institution do to capitalize on the explosion of international commercial arbitration? With 1600 professionals in 90 member firms operating in 37 countries, Consulegis is in a position to gain business from clients outside the existing client base of its member firms. This is precisely what the Robertsons-Schindler model in Hong Kong is setting out to do.

Under this model, the Hong Kong firm of Robertsons and I are presently working together on a joint marketing project for an international commercial arbitration practice in Hong Kong responding to the needs of businesses throughout the Asia-Pacific region and to the needs of foreigners doing business with the Peoples' Republic of China. This arrangement would see Robertsons lawyers handling the bulk of detail oriented document review and research work, while I, together with Robertsons' partners, will manage strategic decisions, negotiations, and court appearances. This arrangement is mutually beneficial since my English common law litigation experience allows Robertsons to seamlessly provide high calibre international dispute resolution services to its large international transactional clients and in addition both Robertsons and I have access to client work that would be unavailable to either of us separately.

Consulegis member firms may take some of the following steps to capitalize similarly on this growing business opportunity. First, members should ensure that they advise their clients of the benefits of including arbitration clauses in their commercial agreements and the proper wording of such clauses. Secondly, as the field is rapidly evolving, each firm should ensure that its lawyers have access to continuing legal education programs in this area. Thirdly, members should pool their resources following the Robertsons-Schindler model so that Consulegis can offer existing and new clients all the resources needed to draft arbitration clauses, obtain preliminary protection orders in the event of a dispute, evaluate claims under the law governing the dispute, conduct large scale document review, and advocate in leading arbitral jurisdictions including Hong Kong, the U.K., Sweden and Switzerland.

As an organization, Consulegis can help to coordinate the above initiatives by databases of members in each of the following categories: i) members who can advise on arbitration clauses; (ii) members who can act as advocates, particularly those with English common law expertise; (iii) members who can furnish junior litigation personnel to assist in preparation of cases; (iv) members who can obtain interim protection orders from the courts; and (v) members who can enforce awards. Please contact me at pfslaw@ican.net if you wish to be placed on any of these lists.

Patrick Schindler, Esq.
401 Bay Street, Suite 2112
Toronto, Ontario M5H2Y4
Canada
Tel. +1 416 410 0809
e-mail: pfslaw@ican.net
www.patrickschindler.com