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Preliminary Considerations Bearing on the Selection of the Arbitral Process

Comparison of dispute resolution alternatives. Nonbinding processes based upon negotiation contrasted with binding, adjudicative processes: the relative advantages and disadvantages of each. Advantages and disadvantages of transnational litigation as a means of binding, adjudicative dispute resolution. General considerations pertaining to the choice of commercial arbitration as a dispute resolution technique: its advantages and disadvantages. Overview and characteristics of commercial arbitration, including the severability of the arbitration agreement, the concept of party autonomy, the sources of law that can apply to a commercial arbitration and an overview of the commercial arbitral processes.

The Five Stages of the Arbitral Process

STAGE I. The Making and Enforcement of the Arbitration Agreement

A. THE MAKING OF THE ARBITRATION AGREEMENT. Considerations in the drafting of the arbitration agreement. Composition of the arbitral tribunal: selection of arbitrators, qualification and number. The law to be applied by the arbitrators. Conduct of the arbitration. Arbitral rules and institutions. Ad hoc and institutional arbitration. Application of particular standards bearing on the agreement to arbitrate. The distinction between an arbitration agreement and a submission agreement. Basic elements of an arbitration agreement. Importance of choosing the place of arbitration. The law applicable to the arbitration agreement. Procedural and other matters bearing on the arbitration clause.

B. THE ENFORCEMENT OF THE ARBITRATION AGREEMENT. Statutory and treaty regimes governing the enforceability of arbitration agreements, including the Texas General Arbitration Act, the Federal Arbitration Act and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"). The national policy favoring arbitration and the liberal construction of arbitration agreements. Elements required to compel arbitration or stay a lawsuit. The summary procedure the Texas Supreme Court has specified for motions to compel arbitration. Application of the severability doctrine in determining whether to compel arbitration in cases challenging the validity of the underlying contract. Identifying and dealing with strategies most frequently employed in an attempt to circumvent the agreement to arbitrate. Application of the arbitration agreement to non-signatories.

STAGE II. The Selection and Appointment of the Arbitral Tribunal

Party autonomy: the freedom of the parties to specify the number, qualifications and method of selecting the arbitrators. Number and qualifications of arbitrators. Direct appointment of arbitrators by the parties. The "list method" of selecting arbitrators. Selection of the chair of the tribunal. International arbitral institutions and appointing authorities. Administrative appointments of arbitrators. Ethical standards applicable to arbitrators. Neutral arbitrators (impartial and independent) versus "partisan" party-appointed arbitrators. Historic distinction between U.S. ethical standards and international ethical standards. Factors for consideration in the selection of arbitrators. The interview with the prospective arbitrator. Communications with the arbitrators during the proceeding. Disclosures of interests and relationships by the arbitrators or prospective arbitrators. Removal and challenge of arbitrators.

STAGE III. Preliminary Proceedings, Including Procedural Orders and Interim Relief

Commencement of the arbitration under applicable law and under institution rules. Preliminary meetings and hearings. Conduct of preliminary hearing and matters for determination at preliminary hearings. Procedural orders. Interim or partial awards. Provisional remedies, including interim relief. Assess relative advantages of interim relief from the arbitral tribunal versus relief from a court. The availability of "discovery." Production of documents. The availability, if any, of depositions. Exchange by parties of written submissions ("pleadings"). The role and function of witness statements.

STAGE IV. The Evidentiary Hearing on the Merits

Oral testimony versus written witness statements and other documents. The role of the arbitral tribunal in the evidentiary hearing: adversarial or inquisitorial. Handling documents: core collections, agreed bundles and other documentary consolidations. The no-show witness and the adverse inference rule. The use of expert witness, presented by the parties or appointed by the tribunal. The availability and function of cross-examination. Confrontation or "conferencing" of witnesses and pre-hearing meetings of experts. Post-hearing submissions, including briefs and oral argument.

STAGE V. The Making and Enforcement of the Arbitral Award

A. THE MAKING OF THE ARBITRAL AWARD. General considerations bearing on the award. Deliberations of the arbitral tribunal. Remedies included in final awards. Categories of awards. Validity of awards, including the form of the award, contents of the award and time limits. Other considerations bearing on the award, including res judicata effect, separate and dissenting opinions, interest, costs. Confidentiality (or not) of awards.

B. RECOGNITION AND ENFORCEMENT OF THE AWARD. Procedures to enforce or vacate an arbitral award, including relevant time limits. The limited statutory grounds to challenge arbitral awards. The ability of the parties contractually to expand or restrict the scope of judicial review of the award. Non-statutory grounds to challenge arbitral awards, including "manifest disregard of the law." The recognition and enforcement of foreign arbitral awards under the New York Convention.