JJUA55308U Arbitration and Mediation in Commercial Disputes
The course focuses on two most popular alternative dispute resolution (ADR) mechanisms of resolving commercial cases. In recent years, arbitration and mediation have enjoyed unprecedented success on a global scale, and have largely replaced domestic litigation in the area of private disputes as professional, custom-tailored, flexible and time-efficient mechanisms. The course offers a highly practical opportunity to gain knowledge and acquire professional skills needed in international business environment.
The module is taught by experienced dispute resolution professionals, who combine high academic standards with a very practical approach to teaching. Course participants will have an opportunity to gain knowledge and practice their skills in a variety of individual and team exercises, including drafting arbitration and mediation clauses, as well as procedural documents; strategy building; negotiation sessions; and mock proceedings. The module includes a field trip to the Danish Institute of Arbitration and special guest visits of senior dispute resolution professionals.
The course acquaints participants with key characteristics of arbitration and mediation, and guides them through subsequent procedural stages of each of the mechanisms. Practical exercises will be conducted, regarding such issues as: selection of arbitrators/mediators; preparation for proceedings; conduct of hearings and presentation of evidence under different procedural standards; enforceability of awards and settlements.
Both arbitration and mediation can be utilized as standalone dispute resolution processes. However, they can also be combined into sequential hybrid mechanisms in order to suit exact needs of the parties and demands of a specific case. The course will demonstrate how this can be successfully achieved, including such variations as: mediation in the form of a pre-arbitration dispute settlement process (as seen in the FIDIC construction contract conditions); Med-Arb (where the same mediation panel is turned into arbitration one, in case settlement is not achieved); and Arb-Med (where settlement attempt is made after arbitration proceedings were commenced).
The following main topics will be discussed:
- Introduction: the role of arbitration and mediation in commercial disputes
- Choosing to arbitrate: ad hoc and institutional arbitration. The role of arbitration venue and rules of procedure. Arbitration agreement.
- Arbitral tribunal: qualifications, appointment and powers
- Applicable law
- Course of proceedings; evidence
- Arbitral awards: challenge, recognition, enforcement
Part II: Mediation
- Mediation agreement. Evaluative, facilitative and transformative mediation.
- Mediation Panel: qualifications, selection and appointment of mediators, scope of powers
- Conduct of the mediation process. Role of the panel and of the parties
- Settlement agreement and its legal effects. Enforcement (enforceability).
Part III: Hybrid Processes and Specialized Areas
- Mediation as a pre-arbitration process. Before the same or a different panel?
- Arb-med. Costs; limits of disclosure and cooperation by the parties; expertise and soft competences of arb-mediators and med-arbitrators
- Construction disputes and FIDIC standards
- Maritime arbitration
New trends in resolution of commercial cases
Upon completion of the course, the students will be – in terms
- Familiar with key concepts of arbitration and mediation law and practice
- Aware of differences between both mechanisms of dispute resolution and legal outcomes of both processes
- Well-acquainted with possible combinations of both processes, their advantages and disadvantages
- Familiar with relevant arbitral case law and jurisprudence of domestic courts
Skills – able to:
- Draft arbitration and mediation agreement, as well as procedural documents
- Analyze relevant rules of procedure, explain their purpose and scope of application
- Formulate and communicate arguments in oral proceedings in a manner which is professionally and linguistically correct, well-structured and coherent
Competences – prepared to:
- Select the most adequate method and build a successful dispute resolution strategy befitting the demands of a specific contract/case
- Present arguments for and against different available solutions in a structured and coherent manner that demonstrates a good overview of and insight into commercial dispute resolution law and practice, as well as the ability to make a qualified choice between these solutions
- Establish a well-informed basis for selection of arbitrators/mediators, suitable for a specific dispute
- Build a coherent enforcement/challenge strategy regarding arbitral award
Recommended literature is a selection of materials (book excerpts, articles, commentaries), provided by the instructors and including the following sources:
- Gary B. Born, International Commercial Arbitration. Wolters Kluwer Law & Business (2020)
- Joanna Jemielniak, Legal Interpretation in International Commercial Arbitration. Routledge (2014)
- Joanna Jemielniak and Stefanie Pfisterer “Iura Novit Arbiter Revisited: towards a Harmonized Approach?” In: Uniform Law Review, 2015/20(1): 56-80
- Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Disputes. Jossey–Bass (2014) 4th Edition.
- Jacqueline Nolan-Haley, "Mediation: The New Arbitration," Harvard Negotiation Law Review 17 (2012): 61-96
- Redfern and Hunter on International Arbitration, Oxford University Press (2023)
- Thomas J. Stipanowich, “Arbitration, Mediation, and Mixed Modes: Seeking Workable Solutions and Common Groundon Med-Arb, Arb-Med, and Settlement-Oriented Activities by Arbitrators”, Harvard Negotiation Law Review 26 (2021): 265-362
- Heather Scheiwe Kulp, "A Tightrope over Both Your Houses: Ensuring Party Participation and Preserving Mediation's Core Values in Foreclosure Mediation", Pepperdine Dispute Resolution Law Journal 14, no. 2 (2014): 203-244.
- Terkildsen and Lysholm Nielsen: “Arbitral Tribunals and Article 267 – the Danish by-pass Rule.” In: Ch. Klausenegger, P. Klein, F. Kremslehner,. A. Petsche, N. Pitkowitz, J. Power, I. Weiser, G. Zeiler (eds), Austrian Arbitration Yearbook (2012; pp. 196-205)
- Tibor Várady, John Barceló III , Stefan Kröll , Joan Von Mehren, International Commercial Arbitration - A Transnational Perspective (American Casebook Series), West Academic Publishing (2018)
Planned learning activities include: drafting exercises re: arbitration and mediation clauses; preparing procedural documents; strategy building exercises for selection and conduct of dispute resolution processes; negotiation sessions; mock proceedings (arbitration and mediation simulations); case study and case presentations; hypo solving; and digital quizzes.
The course also seeks to expand the participants’ contacts with arbitration and mediation practice through the field trip to the Danish Institute of Arbitration and via invited contributions by experienced dispute resolution practitioners.
- Students enrolled at Faculty of Law: Self Service at KUnet
- Students enrolled at other UCPH faculties or Danish universities, who holds a pre-approval from their Study Board: Credit student application form
- All other students or professionals: Single subject application form (tuition fee apply)
- 15 ECTS
- Type of assessment
- Written assignment, 3 days
- Type of assessment details
- Assigned written individual assignment, 3 days
- Marking scale
- 7-point grading scale
- Censorship form
- No external censorship
- Exam period
December 15-18, 2023
February 02-05, 2024
- Course code
- 15 ECTS
- Full Degree MasterFull Degree Master choice
- 1 semester
- Please see timetable for teaching time
- Faculty of Law
- Joanna Lam (10-6e736572726532706571446e7976326f7932686f)
- Atakilti H Gebremichael (17-6c7f6c7674777f74397278746e736c70774b75807d397680396f76)