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Hogan Lovells US LLP; Olswang LLP; Lawyers and Mediation: a Winston & Strawn LLP Perfect Match? 033 MINI-ROUNDTABLE 012 FEATURE Arbitration Processes in Common Law Vs corporate disputes OCT-DEC 2013 CD www.corporatedisputesmagazine.com Inside this issue: FEATURE Lawyers and mediation: a perfect match? EXPert FORUM Resolving tax disputes with regulators HOT TOPIC Challenges when enforcing arbitral awards Take a closer look. 6GDMK@VjQLR@MCQDFTK@SNQX@FDMBHDRMDDC HMSDQM@SHNM@K@QAHSQ@SHNMRODBH@KHRSR SGDXSTQM SN"1 6DG@UDO@QSHBHO@SDCHMLNQDSG@M L@SSDQRHMITQHRCHBSHNMR @MCNTQDWODQSR G@UDSDRSHjDCADENQDBNTQSR@MC@KKSGDL@INQ HMSDQM@SHNM@K@QAHSQ@SHNMENQTLR .TQRODBH@KHRSR @KRNONRRDRRDWSDMRHUDDBNMNLHB @M@KXSHB@K @MCHMCTRSQXDWODQSHRD—@TMHPTDBNLAHM@SHNM SG@SDM@AKDR"1 SNRTOONQS@KKE@BDSRNENTQ BKHDMSRLNRSBNLOKDWCHROTSDR +D@QMLNQD@SVVV BQ@H BNL;HMSDQM@SHNM@K@QAHSQ@SHNM CONTENTS CD CONTENTS 004 FOREWORD 017 EXPERT FORUM Resolving tax disputes with regulators 006 FEATURE CRA; Deloitte LLP; Hogan Lovells US LLP; Olswang LLP; Lawyers and mediation: a Winston & Strawn LLP perfect match? 033 MINI-ROUNDTABLE 012 FEATURE Arbitration processes in common law vs. civil Prosecutions under the Bribery law jurisdictions Act Akinci Law Office; Skadden, Arps, Slate, Meagher & Flom LLP 157 EDITORIAL PartnerS 040 PERSPECTIVES Tapping Asia’s growth: harmonising arbitral procedure across the Asia region Australian Centre for International Commercial Arbitration (ACICA) Editor: Mark Williams Publisher: Peter Livingstone Publisher: Peter Bailey Production: Mark Truman 046 MINI-ROUNDTABLE Corporate Disputes Changes to the HKIAC rules Published by Financier Worldwide Ltd HKIAC; King & Wood Mallesons; Peter Yuen & Associates; 23rd Floor, Alpha Tower Suffolk Street, Queensway Temple Chambers Birmingham B1 1TT United Kingdom +44 (0)845 345 0456 PERSPECTIVES [email protected] 062 www.corporatedisputesmagazine.com Challenges of arbitration in India © 2013 FINANCIER WORLDWIDE ltd MZM Legal All rights reserved. No part of this publication may be copied, reproduced, transmitted or held in a retrievable system without 067 PERSPECTIVES the written permission of the publishers. Whilst every effort is made to ensure the accuracy of all material An alignment of the stars for international published in Financier Worldwide, the publishers accept no responsibility for any errors or omissions, nor for any arbitration in New York claims made as a result of such errors or omissions. Views Victoria A. Kummer expressed by contributors are not necessarily those of the publishers. Any statements expressed by professionals in this publication are understood to be general opinions and should not be relied upon as legal or financial advice. PERSPECTIVES Opinions expressed herein do not necessarily represent 070 the views of the author’s firms or clients. Of carts and horses: is there room for Financier Worldwide reserves full rights of international use attachment or enforcement ahead of of all published materials and all material is protected by copyright. Financier Worldwide retains the right to reprint recognition of arbitral awards in Mexico? any or all editorial material for promotional or nonprofit use, with credit given. White & Case LLP www.corporatedisputesmagazine.com CORPORATE DISPUTES Oct–Dec 2013 1 CONTENTS CD CONTENTS 074 PERSPECTIVES 116 PERSPECTIVES Avoiding hybrid arbitration clauses in Corporate compassion will enhance commercial agreements performance O’Melveny & Myers LLP 4Civility Institute 079 MINI-ROUNDTABLE 120 ONE-ON-ONE INTERVIEW Dealing with complex disputes in the energy Mitigating and managing fraud in Latin sector America Dentons Berkeley Research Group, LLC 092 MINI-ROUNDTABLE 125 MINI-ROUNDTABLE Forensic accounting in fraud related disputes New anti-corruption legislation in Brazil Navigant Consulting; Debevoise & Plimpton PwC Brazil 103 ONE-ON-ONE INTERVIEW 134 ONE-ON-ONE INTERVIEW Managing and resolving construction sector How well do you know your business disputes partners? Dentons US LLP Corporate Research and Investigations LLC 108 PERSPECTIVES 140 EXPERT FORUM Mediating banking disputes – it all adds up Challenges when enforcing arbitral awards CEDR Carvalho, Machado, Timm & Deffenti Advogados; Covington & Burling LLP; Perley-Robertson, Hill & 111 PERSPECTIVES McDougall LLP/s.r.l.; Shearman & Sterling LLP Mediation is gaining ground in Germany – yet again White & Case LLP 2 CORPORATE DISPUTES Oct–Dec 2013 www.corporatedisputesmagazine.com www.corporatedisputesmagazine.com 1 Visit the new website 2 Sign-up to our free emailing list 3 Forward the link to colleagues and clients 4 Receive and enjoy future copies of Corporate Disputes FOREWORD FOREWORD Welcome to the fifth issue of Corporate Disputes, an e-magazine dedicated to the latest developments in corporate and commercial disputes. Published quarterly by Financier Worldwide, Corporate Disputes draws on the experience and expertise of leading experts in the field to deliver insight on litigation, arbitration, mediation and other methods of dispute resolution. In this issue we present features on the use of lawyers and non-lawyers as mediators, and on prosecutions under the UK Bribery Act. We also look at tax disputes; disputes in the energy and construction sectors; fraud related disputes; arbitral procedures; arbitration in India, Hong Kong and New York; enforcing arbitral awards; arbitration clauses in commercial agreements; mediating disputes; and avoiding disputes by knowing your business partners. Thanks go to our esteemed editorial partners for their valued contribution: Akinci Law Office; Berkeley Research Group, LLC; Charles River Associates; CRI Group; Deloitte LLP; Dentons; Hogan Lovells; King & Wood Mallesons; Navigant; Peter Yuen & Associates; PwC; Temple Chambers; Winston & Strawn LLP; 4Civility Institute; Australian Centre for International Commercial Arbitration; CEDR; and Hong Kong International Arbitration Centre. – Editor 4 CORPORATE DISPUTES Oct–Dec 2013 2013 www.corporatedisputesmagazine.com FOREWORD www.corporatedisputesmagazine.com CORPORATE DISPUTES Oct–Dec 2013 5 FEATURE FEATURE LawYERS AND MEDIatION: A PERFECT MatCH? BY RICHARD SUMMERFIELD ncreasingly, mediation is seen as preferable During the mediation process, parties have the alternative to pursuing a trial. Not only does it opportunity to move beyond the rigid formalities Iafford parties and their respective counsel the and legal rules that can hinder resolution in a cordial opportunity to discuss and negotiate around the manner; however it is important to note that their matters at hand without driving up costs, it also ability to do so depends largely upon the mediator’s saves taking up the valuable time of the courts. understanding of and approach to the conflict they Furthermore, the mediation process allows both are faced with. sides of the dispute to reach a fair and amicable As the popularity of the modern mediation process consensus with the aid and input of a neutral party. grows, the question of who makes the better mediator – lawyers or non lawyers – abounds. 6 CORPORATE DISPUTES Oct–Dec 2013 www.corporatedisputesmagazine.com LawYERS AND MEDIatION: A PERFECT MatCH? FEATURE Arguably, the decision of whether to appoint a would undoubtedly have a solid grasp of the legal lawyer or a non lawyer mediator varies depending on complexities of a dispute, she must avoid developing the case as much as on the abilities and background an adversarial mindset and focus instead on reaching of the mediator in question. In some instances it may a peaceable compromise. be more appropriate to have a trained lawyer who is It stands to reason that possession of a law degree well versed in the theory and practice of mediation. and legal training will often benefit anyone acting as On the surface one might naturally believe a mediator. However, the sheer amount of successful that lawyers make the ideal candidates to act as non lawyer mediators currently operating suggests mediators. In some respects the process of mediation that a legal background is not necessarily essential to can be viewed as being a logical extension of legal training, with the skills and knowledge needed to effectively mediate readily acquired by practising lawyers. When considered in these “The decision of whether to appoint a lawyer terms it is easy to see why lawyers or a non lawyer mediator varies depending are often selected to act as mediators. on the case as much as on the abilities and Understandably, lawyer mediators will background of the mediator in question.” share language, reference points and culture with the litigators that clients first approach to resolve their disputes. Furthermore, lawyer mediators will better understand mediate competently. Clearly, non lawyer mediators the well established and litigious version of dispute bring their own particular strengths to a profession resolution that can often rear its head. Lawyer that is constantly evolving. Many of these strengths mediators are also more accustomed to getting to and attributes, one could argue, are not learned in the crux of the matter, pursuing the critical issues the classroom or the courtroom, and have a lot to do surrounding a dispute and focusing on achieving a with emotional intelligence. conclusive outcome. Irrespective of personal opinion, however, it is clear Yet, while employing a lawyer mediator will clearly that professionals from all manner of backgrounds have its advantages, it is prudent to remember can and do make excellent mediators, as they are that many lawyers are trained predominantly to able to draw on myriad skills developed throughout litigate rather than mediate. While a lawyer mediator their time
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