programs
International Competition for Online Dispute Resolution (ICODR 2006)
Arbitration Competition Rules
PLEASE NOTE EXTENDED COMPETITION TIMES IN SCHEDULE
A. Purpose
The competition enhances student understanding of Online Dispute Resolution. Students will experience every aspect of an arbitration under the UNCITRAL Arbitration Rules - notice and response, constitution of the arbitral tribunal (including remuneration and independence issues), procedure design (including written and oral submissions), choice of law, deliberation and award drafting. Students may participate as advocates or as arbitrators. Gold, Silver and Bronze Medals will be granted based on evaluations by distinguished professionals as to (1) the most effective advocate teams and (2) the most effective arbitral tribunal.
B. Participants
Law students from law schools around the world are invited to participate.
C. Teams
Schools are encouraged to field both a (1) team of advocates and (2) arbitrator(s).
1. Advocates
Each school is requested to field a team of at least two persons. During the competition each team will be represented by one “advocate” entity whatever the number of members of the team.
Teams will be paired by random selection so that each team will act as Claimant in one arbitration versus one team and as Respondent in a second arbitration against a different team. Each team will be assigned a letter (e.g. Team A) and will be expected to refer to itself in that manner. No evaluator, other team, or tribunal member can ask a team to provide the name of its school.
2. Arbitrators
Each school is requested to field at least one person and up to three persons to serve as arbitrator. To the extent possible, three person arbitral tribunals will be foreseen for each arbitration.
The tribunals will be drawn at random from the pool of candidates and will be appointed by an Appointing Authority that is designated by the Secretary General of the Permanent Court of Arbitration under the UNCITRAL Arbitration Rules (more on the rules below). Insofar as possible, the members of the arbitral tribunal in a given arbitration will not be from the schools of either of the parties to the arbitration. Each student will serve in at least one and possibly two arbitral tribunals. Each arbitral tribunal will be assigned a name (e.g. Tribunal A) and will be expected to refer to itself by that name. No evaluator, team or tribunal member can ask a tribunal member to provide the name of his/her school.
D. Coaches
Our desire is that the contacts at each school be the coach for the school’s advocate team and arbitrator(s). The coach would assist the preparation for the online arbitration. We would ask coaches to provide the same level of assistance as they provide in offline competitions of this nature. This preparation would include working on the Alternative Dispute Resolution issues, particularly the international commercial arbitration issues, as well as familiarizing the students with the selected technology.
In order to ensure complete fairness and neutrality, organizers of the competition who are listed as participants will limit their roles to administrative organization of their respective teams.
During the competition, it is desirable that the coach observe the work of the team either in the physical room or in observing the team(s) online. The hope is that the coach can watch carefully the experience to help in the evaluation of the competition.
E. Sequence of the Arbitration
The competition is envisaged as running from February 8 (REVISED), 2006 through March 31, 2006.
The schedule would be (all times expressed in Greenwich Mean Time (GMT)):
September – November 2005 : Designation of Teams and Arbitrators for participating schools
December 2005 – Allocation of Teams and Arbitrators
January 16 (REVISED), 2006 - Provision of fact patterns to teams
February 8 (REVISED) : Notice of Arbitration due (to be filed in Documents section of the Workspace).
February 13 (REVISED): Response on number of arbitrators due. The response will be made to the notice of arbitration of another team and the paired teams will continue the arbitration together.
February 15 (REVISED) (at the latest): Constitution of the Arbitral Tribunal
February 15 (REVISED) – March 31: The Arbitral Procedure will occur. The procedure will be determined by the student advocates with the student arbitral tribunal. The teams could address issues such as remuneration and independence of the arbitral tribunal including challenges, hearing of witnesses, scheduling of written and oral submissions and the subject matter of such submissions, etc. Each arbitral tribunal is free to organize the proceedings as it sees fit in accordance with the UNCITRAL Arbitration Rules and any mandatory public policy rules of the place of arbitration such as due process, principles of natural justice, rights of defense. The concern is that the award should be one which would be likely to be enforceable under the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards.
April 3 (EXTENDED): A written award with reasons of the arbitral tribunal is due, together with dissenting or concurring opinions (if any). No extensions of time will be granted.
April 6 (EXTENDED): Student self-evaluations in their respective private rooms are due.
April 6 – May 1(REVISED) : Evaluators made up of distinguished practitioners and academics in the field of international commercial arbitration may watch the activities of the advocates and arbitrators during the course of the arbitrations and will finalize their evaluations during this period.
May 30: Announcement of the most effective advocates and most effective arbitral tribunals as determined by the evaluators.F. Timekeeping
Responsibility rests with the student participants for timekeeping.
G. Supplemental Materials
Supplemental materials may be used by the participants. They should be posted at the documents section of the arbitration room. No documents should be added to the arbitration room after the end of the arbitration period (March 31). No new documents should be added to the comments made during the self-evaluation.
H. Expectation of how the round should proceed
As soon as practicable after the beginning of the arbitration, each advocate team and arbitral tribunal should enter into the arbitration room and send a message advising that “We are Team/Tribunal (Letter) and are ready to proceed.”
In the event no information is heard from a team/arbitral tribunal after the first 24 hours, effort will be made to contact them to make sure there is no problem of access. If an arbitral tribunal fails to participate, then the advocate teams will be declared winner’s ex aequo et bono of their arbitration but will not be eligible for any medals. If an advocate team fails to participate, then the arbitral tribunal will have to determine how it will proceed in accordance with the UNCITRAL Arbitration Rules.
The advocate teams are to represent their respective clients in the arbitration.
The arbitral tribunals are to organize the arbitration and draft a reasoned arbitral award.
Each advocate team and the arbitral tribunal are free to determine how they wish to conduct themselves in the arbitration which is being conducted in accordance with the UNCITRAL Arbitration Rules.
Over the three days after March 31, 2006, each advocate team and each arbitral tribunal is to enter into its respective private room and provide a self-analysis answering the following five questions.
(1) What was your strategy and how well did you implement it?
(2) What would you do the same and what would you do differently if you were in this type of arbitration in the future?
(3) What impact did the technology have on your arbitrating approach?
(4) What did you learn from this experience?
(5) What would you wish others to know about this type of experience?
I. Evaluators
Evaluators are provided by the Center for Information Technology and Dispute Resolution (CITDR) of the University of Massachusetts .
Evaluators will not be from any school in the competition. Evaluators will have access to a webboard provided by CITDR in which they may wish to discuss their experience evaluating the competition.
J. Scoring
Evaluators will observe teams in real time and/or through review of the arbitration text.
1. Evaluation of Advocate teams
Evaluation criteria forms will be used to rate each advocate team from 1 to 7 on 9 criteria scales. The nine scales are as follows:
I. Arbitration Planning . How well prepared did this team appear to be?
II. Flexibility in deviating from plans or adapting strategy. How flexible did this team appear to be in adapting its strategy in reaction to the other team?
III. Outcome of arbitration. How well did this team serve the client’s goals?
IV. Relationship between the arbitrating teams. Did the way this team managed its relationship with the other team and the arbitral tribunal help or hurt it in achieving its client’s best interests?
V. Arbitration Ethics. To what extent did the team observe or violate the ethical requirements of the legal profession?
VI. Use of Technology. How effectively did the team use the technology to advance its client’s goals?
VII. Skill in Expression. In expressing itself, did the team seem hindered or helped by the technology?
VIII. General. Overall how well did the team use online arbitration?
IX. Self-Analysis. Based on the team’s self-analysis in its caucus room, how adequately has it learned from the arbitration?
The average neutral rating is 4. To get above that rating the team has to do something that makes a significant favorable impact on the evaluator. To get below that rating, the team has to do something that makes a significant unfavorable impact on the evaluator.
2. Evaluation of Arbitral Tribunals
Evaluation criteria forms will be used to rate each arbitral tribunal from 1 to 7 on 10 criteria scales. The ten scales are as follows:
I. Arbitration Planning . How well prepared did this arbitral tribunal appear to be?
II. Flexibility in deviating from plans or adapting strategy. How flexible did this arbitral tribunal appear to be in adapting its strategy in reaction to the parties?
III. Outcome of arbitration. How well did the arbitral tribunal do in the procedure and preparing the award?
IV. Relationship with the parties. Did the way the arbitral tribunal managed its relationship with the parties help or hurt it in reaching an award that is enforceable under the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards?
V. Relationship within the Arbitral Tribunal. Did the way the arbitral tribunal managed its relationship with each other help or hurt it in reaching an award that is enforceable under the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards?
VI. Arbitration Ethics. To what extent did the arbitral tribunal observe or violate the ethical requirements of arbitrators and/or the legal profession?
VII. Use of Technology. How effectively did the arbitral tribunal use the technology to advance their goals for the arbitration?
VIII. Skill in Expression. In expressing itself, did the arbitral tribunal seem hindered or helped by the technology?
IX. General. Overall how well did the arbitral tribunal use online arbitration?
X. Self-Analysis. Based on the arbitral tribunal’s self-analysis in its caucus room, how adequately has it learned from the arbitration?
The average neutral rating is 4. To get above that rating the arbitral tribunal has to do something that makes a significant favorable impact on the evaluator. To get below that rating, the arbitral tribunal has to do something that makes a significant unfavorable impact on the evaluator.
K. Evaluation Standards
The evaluation criteria attempt to capture various discrete aspects of the arbitration process. The evaluators should keep in mind at all times that the student participants come from around the world and from different legal traditions.
The standards are based on the premise that there are many ways to arbitrate.
Arbitration effectiveness here can be demonstrated by persuasiveness, procedural suggestions and choices, manner of presentation, quality of drafting, etc.
Several points that could be considered:
· Is this a well-run arbitration?
· To what extent are the interests of the client, the other side, and the arbitral tribunal being persuasively addressed?
· Were the procedural suggestions and choices appropriate?
· Is the award enforceable under the standards of the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards?
· Have the parties and the arbitral tribunal clearly understood each other?
· Will these parties be able to deal with each other more efficiently in case of any future differences?
· Would these arbitrators be likely to be reappointed by the parties or an arbitral institution?
L. Note Taking
Evaluators may take notes and decide whether to provide them to the participants. A webboard is also available for evaluators to use to discuss the experience after they have completed their evaluation.
M. Independent Decision Making
Each evaluator is to make his/her evaluations independently of the other evaluators. Once the evaluations have been completed, the evaluator may feel free to discuss the competition in the webboard.
N. Reporting the results
The Center for Information Technology and Dispute Resolution will notify each team and post the results.
O. Third parties
Persons other than student participants, coaches, evaluators, or administrators of the competition are permitted to observe the arbitrations. They may comment on a separate webboard page if they desire.
P. Hypotheticals
An international commercial dispute between two companies will be the subject of the arbitration.
Q. Controlling Rules
The arbitration is to be conducted in English.
The arbitration will be conducted in accordance with the UNCITRAL Arbitration Rules (http://www.uncitral.org/en-index.htm )
The Arbitral Tribunal will be appointed by a two-step process. First, a request will be made to the Secretary General of the Permanent Court of Arbitration to designate the Appointing Authority in accordance with the arbitration clause. Then the Appointing Authority so indicated will make the appointment of the arbitral tribunal.
Unless indicated otherwise in the problem, no controlling law will be designated.
Within the confines of the fact pattern that is the problem, teams are free to be creative in presenting their cases. Parties may designate factual or expert witnesses to be heard. When seeking witnesses, parties are responsible for seeking out the individuals to play those roles and providing them a copy of the fact pattern.
All references to names of individuals and organizations set forth in the problem materials are fictitious.
R. Online Dispute Resolution Service Provider for this competition
This year, we are pleased that Thomson West corporation, and eRoom Technology, Inc. are international sponsors and service providers of ICODR 2006. They are providing the West WorkSpace technology platform for the negotiation, mediation, arbitration and litigation competitions.
Details of how to access their site will be made available in due course. Each team and the arbitral tribunal will be provided opportunities to familiarize themselves with the technology. Each team and the arbitrators will be provided a specific username and password that will permit access to the arbitration room in which the actual competition will be done.
S. Asynchronous mode of communication only
For the competition, we are providing asynchronous (webboard type) modes of communication because of the difficulty of keeping a record of synchronous (chat type) messages.
T. Sponsor of the competition
University of Toledo College of Law and Hamline University School of Law are providing the financial support for the competition.
U. Educational and Promotional Use
A non-exclusive license to use the ICODR 2006 contents for educational and promotional purposes has been granted by the ICODR 2006 organizers to Thomson West.
V. Competition organizers
Benjamin Davis (Associate Professor, University of Toledo, College of Law –ben.davis@utoledo.edu),
Alan Gaitenby (Adjunct Professor and Assistant Director, Center for Information Technology and Dispute Resolution, University of Massachusetts - gaitenby@disputes.net),
Ethan Katsh (Professor and Director, Center for Information Technology and Dispute Resolution, University of Massachusetts - katsh@legal.umass.edu),
David Larson (Professor and Senior Fellow Dispute Resolution Institute, Hamline School of Law – dlarson@gw.hamline.edu), and
Franklin D. Snyder (Professor, Texas Wesleyan University School of Law – fsnyder@law.txwes.edu)
For enquiries about fielding a law school team, being considered to act as an evaluator or being considered to act as a dispute resolution service provider, please contact:
ben.davis@utoledo.edu
