How to Resolve International Investment Disputes
Look for an arbitration clause in your contract., Find the agreed-upon arbitration organization., Draft a Request for Arbitration., Make sufficient copies of the Request., Pay the filing fee., Submit your Request for Arbitration., Receive the Answer...
Step-by-Step Guide
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Step 1: Look for an arbitration clause in your contract.
You should check whether you can arbitrate a dispute.
Arbitration is a voluntary process which people must agree to.
You generally include an agreement to arbitrate disputes in the investment agreement or investment contract.
A typical arbitration clause might read: “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”Some contracts might give you a choice to arbitrate or bring a lawsuit.
You should talk with a lawyer about the relative advantages of either suing or arbitrating.
Generally, arbitration is cheaper and faster than a lawsuit.
It is also private. -
Step 2: Find the agreed-upon arbitration organization.
The arbitration clause might have identified which arbitration organization you will use.
There are many which can handle international disputes.
Among the more popular are:
The International Chamber of Commerce (ICC).JAMS International.The international division of the American Arbitration Association.The International Centre for Settlement of Investment Disputes (ICSID).
This organization mostly handles arbitrations involving private citizens who have disputes with member nations. , You will start the arbitration by filing a Request for Arbitration.
You should get the requirements from the arbitration association.
These requirements should spell out what exactly needs to be included in your Request.
Under the ICC requirements, your Request should contain the following information at a minimum:name and contact information for all parties (you and the defendants) your attorney’s name and address a description of the facts giving rise to the dispute, including the basis for your claims (such as the contract provision the defendant violated) your requested relief (e.g., monetary compensation requested) copies of your agreements the number of arbitrators you want (one or three) the place where arbitration should be held an arbitrator you want to nominate to serve , You will probably have to submit a certain number of copies to the arbitration panel.
For example, the ICC requires at least one copy for each defendant (called the “respondent”), as well as a copy for each arbitrator.
The Secretariat also gets a copy.For example, if there is one defendant and one arbitrator, then you will send three copies. , Arbitration isn’t free, and you will have to submit payment.
Each arbitrator handles payment a little differently, and the costs can vary considerably.
You should consult with the arbitration organization for more information.
ICC, for example, requires a $3,000 advance when you file your Request for Arbitration., The arbitration association will give you an address where you can mail your Request.
You might also be able to send electronic copies by email.Make sure to send your Request in such a way that you get a return receipt.
In the U.S., you can mail it certified mail, return receipt requested. , The defendant will file an Answer with the arbitrator.
The defendant has only a limited amount of time, often 30 days.
In the Answer, the defendant may also raise counterclaims against you.The arbitration organization will then send you a copy of the Answer after it has been filed. , Once the Answer has been filed, the arbitration panel must be created.
For example, you may not have nominated someone to serve as an arbitrator.
In this situation, the Secretary General will have to nominate someone.
The Secretary General may also have to fix the place of arbitration, if you and the defendant have not agreed to the location., You and the defendant will also have to pay the costs of the arbitration before the case is submitted to the arbitrators.
The costs include the fees for the arbitrators and the administrative expenses of the arbitration.
These costs are in addition to the filing fee you paid when submitting the Request for Arbitration.
The amount of the costs will vary depending on the arbitration association you use.
The actual costs are calculated at the end of the case.
If the amount is less than the amount you paid in advance, the surplus will be refunded., The arbitral tribunal will meet with you and the defendant to work out an arbitration timetable.
You may have several case management conferences as you prepare for the arbitration., Arbitration is more flexible than a trial.
For example, in a court, each side has a right to cross-examine witnesses.
In arbitration, you could decide to relax this requirement.
Generally, you will present evidence in the same manner as you would in a court:
Witnesses can testify.
The witnesses you ask to testify will depend on the nature of the investment dispute.
For example, the defendant might have stated clearly that they didn’t intend to continue fulfilling the contract.
You can have a witness testify to any conversation in which these statements were made.
You can have expert witnesses testify.
Sometimes the dispute involves technical matters which are too complicated for the arbitrators to understand without expert testimony.
You can introduce documents that support your case.
Relevant documents might include emails or letters from the defendant. , After receiving all evidence, the arbitral tribunal will close the proceedings.
Generally, the arbitral tribunal will set a time limit for issuing an award.
They will set this time limit before the proceedings start.If you win, you are responsible for enforcing the award.
The arbitration association cannot collect the money for you.
Ideally, the defendant will pay up.
However, if the defendant resists, then you will have to file a lawsuit to enforce the arbitral award.
Your lawyer can file this lawsuit for you. -
Step 3: Draft a Request for Arbitration.
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Step 4: Make sufficient copies of the Request.
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Step 5: Pay the filing fee.
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Step 6: Submit your Request for Arbitration.
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Step 7: Receive the Answer to Request.
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Step 8: Set up the arbitral panel.
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Step 9: Pay any advance costs.
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Step 10: Attend a case management conference.
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Step 11: Arbitrate the dispute.
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Step 12: Receive the final award.
Detailed Guide
You should check whether you can arbitrate a dispute.
Arbitration is a voluntary process which people must agree to.
You generally include an agreement to arbitrate disputes in the investment agreement or investment contract.
A typical arbitration clause might read: “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”Some contracts might give you a choice to arbitrate or bring a lawsuit.
You should talk with a lawyer about the relative advantages of either suing or arbitrating.
Generally, arbitration is cheaper and faster than a lawsuit.
It is also private.
The arbitration clause might have identified which arbitration organization you will use.
There are many which can handle international disputes.
Among the more popular are:
The International Chamber of Commerce (ICC).JAMS International.The international division of the American Arbitration Association.The International Centre for Settlement of Investment Disputes (ICSID).
This organization mostly handles arbitrations involving private citizens who have disputes with member nations. , You will start the arbitration by filing a Request for Arbitration.
You should get the requirements from the arbitration association.
These requirements should spell out what exactly needs to be included in your Request.
Under the ICC requirements, your Request should contain the following information at a minimum:name and contact information for all parties (you and the defendants) your attorney’s name and address a description of the facts giving rise to the dispute, including the basis for your claims (such as the contract provision the defendant violated) your requested relief (e.g., monetary compensation requested) copies of your agreements the number of arbitrators you want (one or three) the place where arbitration should be held an arbitrator you want to nominate to serve , You will probably have to submit a certain number of copies to the arbitration panel.
For example, the ICC requires at least one copy for each defendant (called the “respondent”), as well as a copy for each arbitrator.
The Secretariat also gets a copy.For example, if there is one defendant and one arbitrator, then you will send three copies. , Arbitration isn’t free, and you will have to submit payment.
Each arbitrator handles payment a little differently, and the costs can vary considerably.
You should consult with the arbitration organization for more information.
ICC, for example, requires a $3,000 advance when you file your Request for Arbitration., The arbitration association will give you an address where you can mail your Request.
You might also be able to send electronic copies by email.Make sure to send your Request in such a way that you get a return receipt.
In the U.S., you can mail it certified mail, return receipt requested. , The defendant will file an Answer with the arbitrator.
The defendant has only a limited amount of time, often 30 days.
In the Answer, the defendant may also raise counterclaims against you.The arbitration organization will then send you a copy of the Answer after it has been filed. , Once the Answer has been filed, the arbitration panel must be created.
For example, you may not have nominated someone to serve as an arbitrator.
In this situation, the Secretary General will have to nominate someone.
The Secretary General may also have to fix the place of arbitration, if you and the defendant have not agreed to the location., You and the defendant will also have to pay the costs of the arbitration before the case is submitted to the arbitrators.
The costs include the fees for the arbitrators and the administrative expenses of the arbitration.
These costs are in addition to the filing fee you paid when submitting the Request for Arbitration.
The amount of the costs will vary depending on the arbitration association you use.
The actual costs are calculated at the end of the case.
If the amount is less than the amount you paid in advance, the surplus will be refunded., The arbitral tribunal will meet with you and the defendant to work out an arbitration timetable.
You may have several case management conferences as you prepare for the arbitration., Arbitration is more flexible than a trial.
For example, in a court, each side has a right to cross-examine witnesses.
In arbitration, you could decide to relax this requirement.
Generally, you will present evidence in the same manner as you would in a court:
Witnesses can testify.
The witnesses you ask to testify will depend on the nature of the investment dispute.
For example, the defendant might have stated clearly that they didn’t intend to continue fulfilling the contract.
You can have a witness testify to any conversation in which these statements were made.
You can have expert witnesses testify.
Sometimes the dispute involves technical matters which are too complicated for the arbitrators to understand without expert testimony.
You can introduce documents that support your case.
Relevant documents might include emails or letters from the defendant. , After receiving all evidence, the arbitral tribunal will close the proceedings.
Generally, the arbitral tribunal will set a time limit for issuing an award.
They will set this time limit before the proceedings start.If you win, you are responsible for enforcing the award.
The arbitration association cannot collect the money for you.
Ideally, the defendant will pay up.
However, if the defendant resists, then you will have to file a lawsuit to enforce the arbitral award.
Your lawyer can file this lawsuit for you.
About the Author
Kayla Peterson
A passionate writer with expertise in practical skills topics. Loves sharing practical knowledge.
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