While the economic crisis has had an impact on international arbitration, the writing was on the wall even before its full financial toll was realised across global markets. From the perspective of an institution that provides a full range of conflict management services, the message was all too clear that users of international arbitration and mediation were concerned with the escalating time and costs of the alternative dispute resolution (ADR) mechanisms they were selecting for their cross-border contracts. In response, the International Centre for Dispute Resolution (ICDR), which is the international division of the American Arbitration Association (AAA), has taken steps to address these concerns and these efforts have resulted in providing users with additional services and options available to them for their dispute resolution processes.

For example, one of the factors contributing to complexity, expense and delay in recent years has been the migration from court systems into arbitration of procedural devices that allow one party to a court proceeding access to information in the possession of the other, without full consideration of the differences between arbitration and litigation. In response to that problem (the overly broad discovery requests also known as ‘fishing expeditions’) the ICDR has promulgated its Guidelines for the Exchange of Information. The purpose of these guidelines is to make it clear to ICDR arbitrators that they have the authority, the responsibility and, in certain jurisdictions, the mandatory duty to manage arbitration proceedings so as to achieve the goal of providing a simpler, less expensive, and more expeditious process for the exchange of information.

As a result, users are now more frequently considering their options and moving away from just copying and pasting their old arbitration clauses from previous contracts. They are taking a fresh look at the institution’s rules, staff and processes and considering all of the time and costs saving options that are now available to them. They are taking a more proactive role in designing, controlling and participating in their international arbitrations and mediations.

Jan-Mar 2013 issue

International Centre for Dispute Resolution (ICDR)