International Arbitration and Mediation

 

Braumiller Law Group is pleased to have a professional we refer to as our NAFTA GURU, when it comes to arbitration and mediation on international issues.  S. George Alfonso has over twenty years of international and regional litigation, arbitration and contract law with specific experience in negotiating and drafting complex (US and International) commercial contracts.

Mr. Alfonso has also worked as a legal liaison for global clients providing representation and advisory consulting regarding cross-national legal issues, compliance, contracting and negotiations as well as litigation and arbitration.

Mr. Alfonso received his B.A. from SMU in Dallas, and his J.D. from Pepperdine School of Law. He is a member of the Dallas Bar Association Chair International Law Section (Chair Emeritus), Association of European Lawyers (“AEL”) and German-American Chamber of Commerce.  Click here to read his full profile, for more details on his legal experience, education and honors.

SGeorge@braumillerlaw.com
Phone:  972.725.7940
Mobile: 214.878.2390

FAQs About International Arbitration and Mediation

Mediation May Still be an Option: Mediation of any claims between parties to an international commercial agreement is, with the full agreement of the disputing parties,  always an option at any time.  The serious caveat is obviously the willingness and desire of one or more of the parties to agree to enter into the mediation process (whether informal or formal).

Yes: At any time.  Mediation may be undertaken by the parties to the dispute before or after the commencement of international arbitration.  The parties may on their own seek to enter into either “Informal Mediation” or “Formal Mediation” as discussed in these FAQs.

It is important to note the difference between international arbitration and international mediation is that, while an international arbitral tribunal will issue a binding award, which may be converted into a judgment in one or more various national jurisdictions for the purposes of execution; mediation (whether informal or formal) is of a non-binding nature, meaning the agreement of parties is required to reach a settlement (Global or Partial).  Failure of the parties to reach any agreement, does not directly affect the claims or defenses of the parties, whether arbitration is ongoing at the time of mediation.

Mediation (Otherwise Known as “Alternative Dispute Resolution”):  As in the regional realm, international parties may seek to resolve disputes prior to or after the commencement of international arbitration proceedings, through the process known as “Alternative Dispute Resolution” (“ADR”).

Informal Mediation:  Prior to the commencement of arbitration, the ADR process may be as simple and informal as direct communications directly between the grieved party and any relevant party(ies) to the international commercial agreement.  This communication process may escalate into negotiations solely between counsel, with such inter-party negotiations often defined as “Informal Mediation”.

Formal Mediation:In addition to, or instead of Informal Mediation, the parties may at any time, agree to proceed with “Formal Mediation”, in which an appointed attorney/judge/expert in the subject matter/field of the dispute, meets with all involved parties, separately and together, to seek a settlement of all claims (“Global Settlement”), or at least a resolution of some claims (“Partial Settlement”).

International Arbitration Will Not Be Possible: If the parties have not agreed to international arbitration in the signed agreement (or possibly subsequently), then no international arbitral tribunal can force the tribunal’s jurisdiction upon any such non-consenting party(ies).  If this is the case, there still may be an available avenue in which to experienced international counsel could seek to resolve some-to-some-to-all the outstanding issues or claims – that being mediation (Please See “Mediation FAQs”).

Retain Experienced Counsel to Draft and Negotiate NAFTA Agreements: The best way to insure that a well-drafted Dispute Resolution Section (“DSR”), which clearly sets forth the international arbitration controlling rules for the NAFTA agreement, is to retain experienced counsel to work with your company and negotiate with the other parties to create clear, concise, valid terms which will control, guide and direct the arbitration process from beginning to end, if such occurrence is ever required to settle a dispute.

Review the Agreement for Specific Section and/or Terms: As noted previously in “How is an International Arbitration Created?”, the subject of international arbitration is often-times addressed in a section of the agreement often entitled “Dispute Resolution Section” (“DRS”).  The DRS is in most cases located at the end of international commercial contracts.  A review of your company’s NAFTA (and all other international agreements) should include and clearly state what terms (if any), regarding international arbitration have been agreed to between the parties to that contract.

That Depends: For any international commercial contract (NAFTA or otherwise) to require international arbitration, each party to the agreement must agree to participate in the arbitration process.  Failure (by refusal or omission) of any party to the agreement, renders that non-agreeing party not subject to the jurisdiction of any arbitral tribunal’s jurisdictions, decisions or award.

Yes: The absence of an international arbitration agreement may very well result in the aggrieved party only being able to seek redress and litigate in the foreign nation(s) and jurisdiction(s)/ court(s) of the offending party(ies) to the NAFTA agreement.

Yes: If necessary the Award may be converted into a judgment through the U.S. Courts system as well as through the majority of other national jurisdictions, through their respective court systems.

Yes: Unlike mediation (discussed here as well), international arbitration is binding upon the parties.  The arbitrator (or arbitration panel) will issue an “Award” which, if for the aggrieved party, the “Contestant” (Plaintiff) may include financial damages against the “Respondent(s)” (Defendant(s)).

Through Negotiations, Drafting and Inclusion into the NAFTA Agreement:  Typically, agreement by the parties to engage in international arbitration is evidenced within the NAFTA agreement, usually under the heading of “Dispute Resoultion Section” (“DRS”).  It is universally required that, for any arbitral tribunal to obtain jurisdiction over a party to require them to appear at arbitration – to hear a dispute and issue an award – said party must have agreed to the arbitration process (usually set forth in the DRS) usually, as evidenced by the executed NAFTA agreement.

Prompt Redress of Claims Through a Neutral Arbitral Body:  International arbitration provides a fast-paced thoroughly controllable process under which – by and through the agreement of all parties – arbitration can resolve any dispute/claims among the parties by and through a binding award, including monetary damages.

Control by the Parties Regarding Important Terms of Arbitration:  The terms under which the parties will conduct arbitration may, if so desired, largely be placed under the parties’ own control through their agreement.  Such important matters which the parties are free to agree-upon include (but are not limited to), the number of arbitrators that may hear any claim (one up to three usually), the location of the arbitration hearing, the applicable procedural rules of the arbitration as well as the law to be implemented regarding the arbitration.

A Binding Outcome Determinative Alternative to Litigation (Trial by Judge or Jury): NAFTA’s purpose is to facilitate international commercial agreements between U.S., Canadian and Mexican companies. International arbitration provides a viable option by which the parties may bring claims against one another to settle disputes, outside the legal system of any of the three sovereign nations’ jurisdiction and controlling laws.