An introduction to Alternative Dispute Resolution

1. An introduction toAlternative Dispute Resolution Maria Kyriacou

2. Table of contents Concept and definitions Arbitration Mediation Advantages of ADR International ADR Centres Singapore International Arbitration Centre (SIAC) International Chamber of Commerce (ICC) World Intellectual Property Organization (WIPO) London Court of International Arbitration (LCIA) Hong Kong International Arbitration Centre (HKIAC) Advantages of Cyprus as an international ADR Centre

3. The basic concept of ADR Alternative Dispute Resolution (ADR) encompasses various methods and types of proceedings for resolving conflict outside of the court system through the involvement of a (neutral) third party. ADR is increasingly becoming a preferred alternative to lengthy litigation and has proven to be a useful technique overcoming stalemate, improving efficiency of complex negotiations and achieving durable settlements. There are various processes of ADR. This session will examine the two most common: Arbitration Mediation

4. Arbitration Method of proceeding for resolution of disputes outside of court The parties refer the dispute arbitration by one or more neutral persons (the arbitrator) The arbitrator considers all relevant information and renders a final decision in favourof one party Can be binding or non-binding (depending on terms of arbitration agreement) Binding arbitration decisions may be confirmed by a court and carry the same significance as a court judgment

5. Mediation Voluntary dispute resolution process Parties not bound to resolve their dispute However mediated settlements can be made binding if contracting parties decide to draft a contract (settlement agreement) NOT decided in favor of one party Mediator simply facilitates the resolution process Mediation, specifically, is an attractive option for parties that place a premium on the preservation or enhancement of their relationship, seek to maintain control over the dispute settlement process, value confidentiality, or want to reach a speedy settlement without damage to their reputations.

6. Advantages of ADR Possibility of a single procedure Parties can agree to resolve conflicts in a single procedure, thereby avoiding the expenses and complexities of multi-jurisdictional litigation, and the risk of inconsistent results. Party autonomy and flexibility of procedure Due to its private nature, ADR affords parties the opportunity to exercise greater control over the procedure in which their dispute is resolved. In contrast to court litigation, the parties have the option to select appropriate decision-makers for their dispute. Additionally, they may choose the applicable law, place and language of the proceeding. Time and cost efficient As parties are free to devise the most efficient procedures for their dispute, this speeds up the procedure, which in turn can result in material cost savings. Neutrality Neutral to the law, language and institutional culture of the parties involved in the dispute, therefore evading any home court advantage that one of the parties may enjoy in a particular court-based litigation, where familiarity with the applicable law and local processes can offer significant strategic advantages. Confidentiality and preservation of relationships and reputations Proceedings are private and the parties can agree to keep their business confidential. This allows them to focus on the dispute without being concerned about its public impact (e.g. where commercial reputations and trade secrets are involved). Finality of Awards In contrast to court decisions, which can generally be challenged through one or more rounds of litigation, arbitral awards are not normally subject to appeal. Enforceability of Awards The United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (also known as the New York Convention), places arbitral awards on a par with domestic court judgments without review on the merits, thereby facilitating the enforcement of awards across borders.

7. UN Commission on International Trade Law Rules Place of arbitration Language Statement of claim Statement of defence Pleas as to the jurisdiction of the arbitral tribunal Calculation of periods of time Interim measures Evidence Hearings Tribunal-appointed experts Default Closure of hearings Waiver of right to object

8. Principal international ADR centres Singapore International Arbitration Centre (SIAC) International Chamber of Commerce (ICC) World Intellectual Property Organization (WIPO) London Court of International Arbitration (LCIA) Hong Kong International Arbitration Centre (HKIAC)

9. Singapore International Arbitration Centre (SIAC) About SIAC Established in 1991 Non-profit and non-governmental organization Deals exclusively with arbitration There is also the Singapore Mediation Centre, which deals with mediation proceedings. SIAC arbitration awards have been enforced by the courts of Australia, China (Hong Kong), India, Indonesia and the USA International in nature and types of proceedings Board of directors, council of advisors, arbitrators (320 from 31 jurisdictions) and secretariats 85% of SIACS’s caseload is international in nature (for example, 45% of cases in 2009 cases had no connection to Singapore at all)

10. SIAC arbitration SIAC Rules Notice of arbitration, calculation of periods of time Notice of arbitration Response to Notice of Arbitration Possibility of expedited procedure Number and appointment of arbitrators Notice of challenge Decision on challenge Possibility of replacement of arbitrator Repetition of hearing in event of replacement of arbitrator Hearings Witnesses Tribunal- appointed experts Additional powers of the tribunal Jurisdiction of the tribunal Interim and emergency relief Applicable law amiable compositeur or ex aequo et bono The award

11. SIAC arbitration: time and costs Arbitrator(s) Tertiary education Minimum 10 years post qualification experience Fellowship from the Chartered Institute of Arbitrators, Singapore Institute of Arbitrators or any comparable professional arbitration institute experience as an arbitrator in five or more cases completed of at least two commercial arbitral awards 30-75 years old Time Notice deemed to be received on the date of delivery Period shall begin on the following day (unless it’s a holiday or non-business day in which case period of time will commence on the first business day) Registrar may at any time given extend or shorten any time limits prescribed under their rules Costs Administration fee Appointment fee Arbitrator’s fee Other fees and charges Tax costs

12. Singapore Mediation Centre (SMC) Not for profit organisation established in 1997 Caseload has been increasing steadily, growing 28 per cent in 2013 from the previous year Recently announced two new initiatives: the Pilot Healthcare Scheme- which offers subsidized mediation services between patients and healthcare institutes- and mediations for disputes arising from the Personal Data Protection Act. A new mediation centre to be established in Singapore in coming months: the Singapore International Mediation Centre (SIMC)

13. SMC mediation: time and costs Time Majority of cases settled within one working day Costs Commercial disputes of more than $60,000 (€46,649) start from $963 (€ 749) per party per day For commercial disputes up to $60,000 (€46,649) mediation is free for the first 2 hours and subsequently starts at $80.25 (€ 62.39)per party per hour.

14. International Chamber of Commerce (ICC) Largest representative business organization in the world Member countries in over 180 countries Dispute Resolution Services Arbitration Mediation

15. ICC arbitration Arbitral Proceedings Transmission of file to the arbitral tribunal Proof of authority Place of arbitration Rules governing proceedings Language of the arbitration Applicable rules of law Conduct of the arbitration Terms of reference Case management and conference and procedural timetable Establishing facts of the case Hearings Closure of hearings and date for submission of draft awards Conservatory and interim measures Emergency arbitrator

16. ICC arbitration: time and costs Arbitrator Originally, no list of arbitrators is provided so that the parties can choose whomever they want, provided that all arbitrators are and remain independent and impartial. Should the parties not be able to make a choice, then the ICC provides a list of potential arbitrators, from which the parties can choose based on language, place, issue and other considerations. The Court can refuse to confirm nominated arbitrators in certain circumstances, such as when they do not meet the required standards of independence, impartiality or availability. Time Period shall begin on the day following receipt of notice (unless a holiday or non-business day in which case period of time will commence on the first business day) The court will fix a time for the final award based upon arbitral tribunals procedural timetable; otherwise set to six months by default. Costs Non-refundable filing fee of US$3,000 paid by claimant; additional non-refundable fee of US$3,000 for any party that files a request to join an additional party. Provisional advance fixed by the Secretary General upon receipt of the request which covers costs of arbitration (until terms of reference are completed). Advance on costs fixed by the Court (parties normally requested to pay advance costs in equal shares). No fixed costs but Administrative expenses shall not exceed the maximum amount of US$113,215 Court will fix actual costs of arbitration at the end of the case Costs as well as the arbitrators reimbursable expenses will be paid from the advance on costs If any money is left over it will be reimbursed to the parties

17. ICC mediation Mediation Proceedings 1. Commencement with a Request for Mediation filed with the ICC International Centre for ADR • With a pre-existing agreement for ICC Mediation (Article 2), • Without a pre-existing agreement of the parties: one party is proposing mediation to the other (Article 3). 2. The Centre acknowledges receipt of request once it has received the complete request including the documents and the filing fee. 3. The Centre invites the parties to provide further comments on any outstanding procedural questions (for example language(s) of the proceeding, place of the mediation meetings, timing of the mediation, attributes of the mediator, etc.) 4. Selection of the Mediator: jointly nominated by the parties or appointed by ICC 5. Parties pay a provisional deposit to cover the costs of the proceedings until after the parties’ first meeting with the mediator or beyond 6. The Centre transfers the file to the Mediator and invites her/him to contact the parties 7. First meeting between the Mediator and the parties (Article 7(2) of the Mediation Rules) to discuss the conduct of the Mediation 8. The mediator communicates the notice pursuant to Article 7(2) of the Mediation Rules to the parties 9. The mediation conducted by the mediator, probably involving one or more physical meetings of the mediator and the parties, possibly exchange of written documents and conference calls 10. The settlement agreement

18. ICC mediation: costs and time Mediator Parties may jointly nominate a mediator, this has to be confirmed by the Centre In the absence of a joint nomination of a mediator, the Centre shall appoint a mediator or propose a list of mediators Time Period shall begin on the following day receipt of notice (unless a holiday or non-business day in which case period of time will commence on the first business day) Costs Filing fee of US$2,000 Administrative expenses US$5, 000 for amounts in dispute between US$ 200,000; US$10, 000 for amounts in dispute between US$ 200, 001 and US$10,000,000; US$15, 000 for amounts in dispute between US$ 10,000, 001 and US$50,000,000; US$20, 000 for amounts in dispute between US$ 50,000, 001 and US$100,000,000; US$30, 000 for amounts in dispute over US$100,000,000.

19. World Intellectual Property Organization (WIPO) Established in 1967 (Geneva, Switzerland) Global forum for intellectual property services, policy, information and cooperation Self-funding agency of the UN 187 member states Administers 26 international treaties

20. WIPO arbitration Expedited Arbitration Proceedings Request for arbitration and statement of claim Answer to request for arbitration and statement of defense Appointment of arbitrator Hearing Closure of proceedings Final award Arbitration Proceedings Request for arbitration Answer to request for arbitration Appointment of arbitrator(s) Statement of claim Statement of defence Further written statements and witness statements Hearing Closure of proceedings Final award

21. WIPO arbitration: time and costs Arbitrator WIPO center appoints a neutral candidate based on various factors such as Method of resolving the dispute (i.e. arbitration, mediation, expert determination) Governing law Nationality and/or identity of the parties and their representatives Area of intellectual property law Technical or business area Language of the proceedings Venue of the proceedings Time Proceedings Within three months for expedited arbitration within nine months for arbitration Award Within one month for expedited arbitration Within three months for arbitration Costs Registration fee of $1000 for expedited arbitration $2000 for arbitration Administration fee Between $1,000-$5000 for expedited arbitration Between $2,000-$10,000 for arbitration Arbitration fee $20,000+ for expedited arbitration Approximately $300-$600 per hour

22. WIPO mediation Mediation proceedings Request for mediation Appointment of mediator Set up of the first meeting Agreement on preliminary exchange of documents, if any Agreement on ground rules of the process Gathering of information and identifying the issues Exploration of interests of the parties Developing options for settlement Evaluation of options Conclusion

23. WIPO mediation: time and costs Mediator Parties may jointly nominate a mediator, this has to be confirmed by the Centre In the absence of a joint nomination of a mediator, the Centre shall appoint a mediator or propose a list of mediators Time Hours to days depending on case Costs Administration fee of 0.10% of value of mediation (max $10,000) Mediators fee of $300-$600 per hour OR $1,500-$3,500 per day

24. London Court of International Arbitration (LCIA) Established in 1883 Promulgates its own rules and procedures, which are frequently adopted in ad hoc arbitrations

25. LCIA arbitration Arbitral Proceedings Contact between parties and arbitral tribunal Agreement of arbitral proceedings Appointment of arbitrator Oral hearings Written statements and witness statements Experts to arbitral tribunal Additional powers Jurisdiction and authority Deposits Interim and conservatory measures Drafting of awards Correction of awards and additional awards Settlement of arbitration costs and legal costs

26. LCIA arbitration: time and costs Arbitrator Provides a descriptive list of arbitrators including their experience and training Time Notice deemed to be received on the day delivered Period shall begin on the following day (unless it’s a holiday or non-business day in which case period of time will commence on the first business day) Arbitral Tribunal may at any time given extend or shorten any time limits prescribed under their rules Costs Administrative charges Non-refundable registration fee £1,750 Registrar / Deputy Registrar £250 per hour Counsel £225 per hour Case administrators £175 per hour Casework accounting functions £150 per hour Fees shall be at hourly rates not exceeding £450.

27. Hong Kong International Arbitration Centre (HKIAC) Established in 1985 Well renowned arbitration centre Preferred venue for ADR in Asia Offers 20 separate meeting spaces capable of hosting 4 to 180 individuals Multi-lingual staff

28. HKIAC arbitration Arbitral Proceedings Settlement of Seat and Venue of Arbitration Determining Language of Procedure Statement of Claim Statement of Defence Jurisdiction of the Arbitral Tribunal Further Written Statements Periods of Time Evidence and Hearings Interim Measures of Protection and Emergency Relief Security for Costs Tribunal Appointed Experts Joinder of Additional Parties Consolidation of Arbitrations Closure of Proceedings Waiver

29. HKIAC arbitration: time and costs Arbitrator Experienced arbitrators Generally individuals included on the panel are senior members of the arbitration community who have been appointed as arbitrator in multiple disputes and have significant experience in award drafting. Time Notice deemed to be received on the day delivered Period shall begin on the following day (unless it’s a holiday or non-business day in which case period of time will commence on the first business day) Arbitral Tribunal may at any time given extend or shorten any time limits prescribed under their rules The periods of time set by the arbitral tribunal for the communication of written statements (including the statement of claim and statement of defence) should not exceed 45 days.

30. HKIAC arbitration: time and costs Costs Registration fee of HK$ 8,000 An arbitrator’s agreed hourly rate shall not exceed HK$6,500

31. Cyprus as an ADR Centre Benefits: Expert professional and legal services Corporate and commercial law International financial transactions Project financing Banking law Joint ventures Agency arrangements Construction and engineering contracts Energy law Shipping and admiralty law Litigation Wide range of educated and accomplished human resources Strategic geographic location Reliable infrastructure Credible justice system International business centre

32. The Euro-Mediterranean ADR Centre Not-for-profit regional centre of excellence, credibility and integrity in alternative dispute resolution Located in commercial capital of the island Aiming to become an international hub for ADR proceedings Main practices: mediation and arbitration Legal academy offering training and accreditation to mediators and arbitrators in collaboration with established ADR centres around the world Renowned figures in Board of Members To begin proceedings in 2015

33. Cyprus laws Arbitration The International Commercial Arbitration Law of 1987 regulates international commercial arbitration in Cyprus in accordance with the UNCITRAL Model Law, following the example of many other, mostly European, countries. The Arbitration Law, Cap 4 concerns domestic disputes. Both laws require the agreement to arbitrate to be in writing. A local arbitration under the Arbitration Law will be conducted by a sole arbitrator if the composition of the arbitral tribunal is not specified in the arbitration agreement. In international commercial arbitrations, the arbitration will be conducted under three arbitrators.

34. Cyprus laws Arbitration S26 of the Arbitration Law Cap 4 empowers the courts to take steps to facilitate arbitration, including the issuance of injunctive relief, appointment of a receiver, security for costs, discovery orders, preservation of assets that constitute the subject matter of the arbitration, orders relating to the examination of a witness before the court or the issuance of an order or request for the examination of a witness outside the jurisdiction. As regards international arbitration awards, Cyprus is bound to enforce awards made in foreign states that are signatories to the New York Convention of 1958. A creditor seeking to enforce a foreign arbitral award in Cyprus may request the relevant district court to recognise and enforce the award by filing an application by summons. The application must be served on the debtor and supported by an affidavit together with the documents specified in article IV of the New York Convention.

35. Cyprus laws Mediation “Law providing for certain mediation issues in civil disputes” of 2012 (159(I)/2012) concerns both domestic and cross-border mediation and provides inter alia: the procedure and prerequisites for the official registration of mediators; the mediation process; the duties of the mediator and necessary training; the construction of the mediation agreement; and the enforceability of the agreement.

36. Thank you