Young ICCA Skills Training Workshop: Filing an arbitration and drafting a request
Post Event Report
By Xhuljana Mucaj (Public Sector Consultant at Deloitte Albania) and Wojtek Zaluska (Trainee at Herbert Smith Freehills Spain LLP)
On 23-24 September 2016 Young ICCA held its first workshop in Tirana, Albania, on the topic “Filing an arbitration and drafting a request”. The event started with welcome cocktails at Tirana International Hotel & Conference Center overlooking Skanderbeg Square.
The event was sponsored by the EU Policy Hub, Kola & Associates, Center L.I.S.T. and Kalo & Associates. Blerina Xheraj (PhD Candidate at the University of Geneva) led the organisation of the event in cooperation with two other steering committee members, Silvana Cinari (Lecturer at the University of Tirana) and Erion Fejzulla.
Workshop materials were circulated ahead of the event, which included scholarly pieces on the topic and a sample request for arbitration from an international construction dispute in the energy sector. The sample request served as a basis for the debate which touched upon the following issues:
1. the adequate length of a request;
2. its level of detail;
3. delimitation of issues to be considered in the arbitral proceeding;
4. proper service of the request;
5. its formal requirements and;
6. the relief sought.
The growing interest of international commercial operators in Albania and the need for arbitration as a means of dispute resolution stimulated the interest of regional and foreign lawyers in participating in this event. Special guest Alma Hicka, State Advocate of the Republic of Albania, commented briefly on the advantages and disadvantages of arbitration. She shared her extensive professional experience by comparing arbitration with litigation and concluded that contracting parties in Albania would benefit from including arbitration clauses in their contracts. Such means of dispute resolution remain a relatively new phenomenon in the region.
The introduction to the workshop’s topic was delivered by Miriam Harwood, Partner at Curtis, Mallet-Prevost, Colt & Mosle LLP (New York) and was followed by two panels of speakers.
The first panel discussed the subject of “drafting a request for arbitration” and was chaired by Prof. Flutura Kola Tafaj, Partner at Kola & Associates (Tirana). Integral elements of a request for arbitration as well as long-term strategic implications were examined. Prof. Kola emphasised that elements such as limitation periods, interim measures and pre-arbitral mechanisms should be considered when drafting or planning an arbitration request. Timely preparation and strategic planning are key elements for drafting a proper request. Moreover, the aforementioned issues should already be taken into account during the contract formation. Poorly drafted arbitration clauses may be unenforceable and result in unnecessary costs and delays.
The second panel addressed the topic of “filing an arbitration” and was chaired by Rahul Donde, Senior Associate at Lévy Kaufmann-Kohler (Geneva) together with Alban Çaushi, Partner at Kalo & Associates (Tirana). The speakers examined issues related to the lex arbitri, the arbitration agreement, the substantive law of the contract and the role of tradition of the jurisdiction of the place of arbitration. They also discussed the importance of the proper filing of a request for arbitration from the perspective of recognition and enforcement of an award under the New York Convention. The panel elaborated on the characteristics of the request for arbitration from the practical exercise which concerned an international energy dispute before the arbitration centre of the International Chamber of Commerce (ICC).
In the last part of the workshop participants examined the request for arbitration of the aforementioned energy dispute alongside its underlying procedural aspects, which was followed by a dynamic series of questions and answers. The differing answers from the panel members reflected the wide range of possible approaches to drafting a request for arbitration. Nevertheless, in relation to one aspect the speakers reached consensus – that “less is more” whereby a good request must be at all times reader-friendly and it serves to “tell one’s story” to the tribunal in a comprehensive manner.
Closing remarks were made by Miriam Harwood who concluded the workshop by sharing her experience and pointing out certain distinct characteristics of international arbitration. In particular, she highlighted the concurrent applicability of different sets of rules, such as: 1) lex arbitri, 2) the rules of procedure, and 3) the law applicable to the contract. These may be overlapping in their application to the dispute and as a result situations may arise where no definitive conclusion can be reached. In other words, “unanswered questions” may occur. Even if successful before an arbitral tribunal, the risk remains of having an arbitral award set aside by a domestic court if certain mandatory requirements are omitted. In conclusion, the diversity of applicable rules and the intersection of different jurisdictions requires a profound understanding of the underlying risks, and the ability to advise clients adequately on these risks in order to help them make an informed decision.
The workshop ended with a lunch at the Tirana International Hotel & Conference Center, where participants appreciated the opportunity to network with each other and to meet the speakers informally.
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