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Arbitration Vs. Litigation In Forex Trading: Guidance From Mississippi Attorneys – In December 2018, the Prague Rules for the Effective Conduct of International Arbitration (“Prague Rules”) were issued. (For articles on the Prague Rules on Kluwer’s Arbitration Blog, click here, here, here, and here.)
The Prague Rules aim to increase the efficiency and reduce the costs of arbitration. The project arose out of general dissatisfaction with both the cost of arbitration and the length of court proceedings. One reason for this, the drafters argue, is that courts in general have not been sufficiently active in creating cost-effective and time-saving procedures.
Arbitration Vs. Litigation In Forex Trading: Guidance From Mississippi Attorneys
The drafters proposed the Prague Rules as an alternative to the well-known and widely adopted IBA Rules on the Taking of Evidence in International Arbitration (“the IBA Rules”). The following notes provide an analysis of the main differences (and similarities) between the IBA Rules and the Prague Rules.
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The Prague Rules provide the basic framework to guide the effective conduct of arbitration. They do not supersede the rules of the institution governing the arbitration and apply only by agreement of the parties or on the arbitral tribunal’s own initiative after consultation with the parties, and even to the extent agreed upon by the parties (see Prague Rules). , Article 1). In practice, the Court may apply the Prague Rules without the consent of the parties under Article 1.2, although it is unlikely.
However, the rules of the ICC state that the parties and the tribunal may approve in whole or in part. There is no specific provision for the adoption of the ICC Statute on its own initiative.
The main difference between the IBA Rules and the Prague Rules is that the IBA Rules are generally considered to be more compatible with common law, even though they aim to create a level playing field in international arbitration. In contrast, the Prague Statute expressly adopted a more procedural approach in line with the civil law tradition. Below is a graphic comparison of the four main issues covered by the Prague Rules.
1. Proactive Arbitration: Arbitrators must be proactive in gathering evidence and speeding up proceedings.
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In conclusion, the Prague Rules contain unambiguous provisions on how courts should be active. However, the ICC Rules encourage courts to take a proactive approach.
2. Documenting: The drafters of the Prague Rules criticized the current IAB-style document discovery practice, arguing that it was too time-consuming and expensive. The Prague Rules, which follow the pattern of civil law, limit the production of documents.
3. Number of witnesses: Another proposed solution to reduce the length of arbitration proceedings under the Prague Rules is for the court to have the final say on the number of witnesses to be heard throughout the proceedings. According to the rules of the ICC, the court has no say in this matter.
4. Cross-examination of witnesses: Despite criticism of cross-examination of witnesses in arbitration proceedings, the drafters of the Prague Rules retained the cross-examination process in the new rules. However, provisions were made to avoid extended hearings. The Prague Rules recommend that there be no court hearings and, where possible, that disputes be resolved only on the basis of documents (Article 8.1).
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The Prague Rules contain two other provisions that are not included in the IBA Rules and may not be familiar to lay lawyers.
Although the common law is not familiar with this mechanism, it is interesting that it is used in other countries, especially in Asia. Similar provisions are included in the 2018 HKIAC Rules (Article 13.8) and China International Economic and Commercial Arbitration Commission (Article 47).
Overall, there were some procedural differences between the two sets of rules, but the Prague Rules did not change dramatically. However, these changes and updates may affect the costs and duration of the proceedings.
Would the Prague rule achieve better results overall? We will have to wait for the implementation of the Prague Rules to fully analyze the impact on international arbitration.
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This article represents the personal opinion of the author and the views expressed do not necessarily reflect the position of Clyde & Co.
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Addressing Bribery and Corruption in International Commercial Arbitration: To Check or Not to Check Emmanuel Obiora Igbokwe €190 In arbitration proceedings, the opinions of party-appointed experts can differ greatly, making it difficult for the tribunal to navigate the many areas of dispute. Although issues of disagreement can be isolated (e.g., through joint expert opinion), the sensitivity of the amount claimed to individual assumptions may not be easy to understand, especially if the estimate is tested or challenged by a court, attorney, or tribunal. experts during the hearing. This article explores how sensitivity analysis, scenario modeling, and data visualization tools can help reduce the complexity of damage assessment.
Sensitivity analysis allows us to understand how sensitive any given model or estimate (i.e. output) is to just one assumption (i.e. input). For example, in a shareholder dispute over stock valuation, stock price sensitivity may be assessed in terms of discount rates or assumptions about the cost of a business’s products sold.
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In the context of harm evidence, the purpose of sensitivity analysis is to understand how (if at all) harm will change depending on the issue on which experts disagree. Sensitivity analysis is useful for issues where experts disagree on multiple issues and aims to isolate issues that have the greatest impact on litigation. For example, if there is 20% expert disagreement on a particular forecast, but the difference in losses due to this single factor is only 1%, the court may want to focus on cross-examination and/or hot water pipes. experts in other fields.
Damage estimates in Microsoft Excel spreadsheets can be used to include sensitivity analyzes attached to expert reports as soft copy files.
Sensitivity analysis can be entered into Excel in various ways. An example of this is the sensitivity table, which shows the sensitivity of the calculated loss to two selected inputs. rates used to discount future cash flows and increases in projected earnings (see Figure 1 below).
Another way to make an Excel model more flexible is to use an input control panel or drop-down list of some key assumptions that can be easily changed by the user of the model. If such inputs are included on a single page in a user-friendly format, it would allow the tribunal to understand the impact of changing these assumptions on loss without going through the complexity of the underlying modeling. An example of such a vision board is shown in Figure 2 below.
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Scenario modeling is a “what if?” aims to answer the question. Modeling different scenarios in the context of damage quantification is useful in the following situations.
Compared to sensitivity analysis, modeling scenarios generally involve changing multiple inputs or assumptions simultaneously, which is a more complex exercise. In certain situations, it may be necessary to create a new Excel template with a different structure instead of modifying an existing version to model a different version. Therefore, it is important for courts, attorneys, and experts to identify the different options to consider on a particular issue as soon as possible, because the introduction of new options later in the process (for example, during a hearing) may limit the ability of experts to solve the problem. make the necessary amendments immediately. However, if a set of alternatives is identified early enough in the trial process, analysts can incorporate flexibility into their Excel models and switch between alternatives in real time.
As with sensitivity analysis, you can create custom worksheets in Excel to switch between different scenarios, as well as change individual assumptions outside of these scenarios (see Figure 3 for example).
By creating a user-friendly dashboard in Excel, the panel can (a) select the appropriate loss calculation option based on the court’s facts and legal opinions; and (b) changes in individual inputs and assumptions.
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One of the ways to identify areas of disagreement between experts and to reduce their list is to ask experts to prepare a joint expert report (or joint statement). This report usually includes the agreement and disagreement between the experts and their rationale. In many cases, such joint reports are used as a starting point for cross-examination of experts or witness conferences (also known as hot water).
During the joint expert report phase or as directed by the court, experts may prepare a joint model that includes various sensitivity/scenario analyses. Creating a collaborative model can be a time-consuming exercise, but a collaborative model:
In our practice, joint expert models can be prepared even when damage analysts use different valuation techniques and/or adverse scenarios. In such cases, a court order may be issued
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