Private Dispute Resolution in International Business: Negotiation, Meditation, Arbitration 2nd revised edition 2 volumes by Klaus Peter Berger (Kluwer Law International: Brill) consists of two books and an interactive DVD ROM. Volume I follows the progress of a dispute between two companies, in step-by-step detail, through negotiation, mediation, and arbitration in turn. Volume II provides precise, informed solutions to the problems raised in the first volume's case study. The DVD ROM contains not only all contracts and other written documentation produced during the dispute - including all procedural orders and awards rendered by the arbitral tribunal during the arbitration, the text of legal materials such as arbitration laws and rules and international conventions, and further learning and teaching aids-but also almost 100 videos dramatising the negotiation, mediation, and arbitration proceedings described in the books, conducted by highly experienced practitioners active in the field of international dispute resolution. Subtitles in the videos refer the viewer to paragraphs in the books where each relevant legal problem is analysed. In addition, an internet home page provides regular updates. To summarise: the Case Study (Volume I) provides a realistic and highly practical approach to learning and teaching the law and practice of private dispute resolution in international business; the Handbook (Volume II) provides a comprehensive comparative study of the law of international dispute resolution; the DVD ROM allows for a highly innovative, interactive teaching and learning experience, and provides a comprehensive collection of arbitration rules and other documentary material; and, the videos on the DVD ROM clearly manifest the soft skills and advocacy skills required to successfully resolve international business disputes, including the unique opportunity to draw on-screen comparisons between the negotiation, mediation, and arbitration methods. With its concrete and highly practical approach, this innovative teaching and training tool for international dispute resolution will be of immeasurable value to students and teachers of dispute resolution, corporate counsel, international lawyers, and business people. The DVD-ROM has a large number of interactive teaching and learning features which you can use simultaneously with the books or separately.
International business has always favoured Private Dispute Resolution outside domestic courts. This practice has increased dramatically over the past decades. Almost every dispute resolution process is preceded by more or less intense negotiations between the respective managers who are in charge of the project. Almost 90 per cent of major international commercial contracts contain an arbitration clause and international contract practice is making increasing use of mediation. Some commercial contracts contain highly sophisticated 'multi-tier' dispute resolution clauses which require the parties to reach a settlement of their disputes by going through consecutive steps of different Private Dispute Resolution processes. As a consequence of these developments, every major international law firm has a dispute resolution group. Legal departments of major companies are likewise discovering the benefits and cost-saving effects of pro-active dispute management, especially in light of the high potential for Private Dispute Resolution to preserve valuable business relationships.
Working successfully in this field of international business and discovering these potentials requires the ability to make an informed choice between the various options available in the ever-growing arsenal of Private Dispute Resolution. However, although the privacy and confidentiality of these processes count among the major reasons why businessmen resort to them, it is precisely these reasons which make it hard for students and young practitioners to get a profound understanding of both the law and the practice of Private Dispute Resolution. This project provides the missing link, an insight into the law and the practice of the three archetypes of Private Dispute Resolution: Business Negotiation, Business Mediation and International Commercial Arbitration.
The project is designed for in-house training and university courses, summer academies, or as a tool for practitioners, wishing to prepare themselves (or representatives of their clients who have to appear as witnesses before international mediators or arbitrators) for their appearance in a Private Dispute Resolution process.
The project is unique in many ways. It is based on an interactive learning concept which combines a Case Study and a Handbook with an interactive DVD-ROM and a homepage on the internet. This innovative approach provides the user with a comprehensive, realistic and highly practical portrayal of the art of Private Dispute Resolution.
The project is based on a comprehensive Case Study that is contained in Volume I. The Case Study was originally developed for a seminar that the Center for Transnational Law (CENTRAL), together with the German Institution of Arbitration (`Deutsche Institution für Schiedsgerichtsbarkeit e. V.', DIS) and arbitration practitioners, organized in the summer of 1999 at Schloss Gracht near Cologne, Germany. The Case Study has been used in annual seminars on international arbitration at the T.M.C. Asser Institute in The Hague. The course was founded by Professor Martin Hunter who has become a major source of inspiration also for this project. The Case Study and a previous project, 'Arbitration Interactive', were also used in numerous teaching and training courses around the world and in the annual Cologne CENTRAL/DIS Summer Academy on International Commercial Arbitration at the University of Cologne, Germany (see www.private-di spute-re solution .net) .
The Case Study demonstrates in 29 Scenarios how a promising business relationship between a Swiss exporting company (ALT) and a Dutch importer (NedTrans) turns into a hard-fought legal battle before an international arbitral tribunal after negotiations between the managers of the two companies responsible for the conclusion of the contract and a business mediation between the companies' two CEOs fail. This concept of a single case being run through three different Private Dispute Resolution processes allows the user to draw parallels and make comparisons which are otherwise not available.
There are two other unique features of this project which serve as catalysts for the user's learning process.
The Handbook which constitutes Volume II of the project provides detailed Answers to the Questions posed at the end of each Scenario of the Case Study. The Questions and Answers cover almost every aspect of the three Private Dispute Resolution processes dealt with in the project.
The DVD-ROM, which is enclosed in the back cover of Volume I provides an animated graphical Case Development, a Chronological Order of Events, including pdf-files of all contract and other written documentation, the text of relevant legal materials, a List of Parties and Persons and further learning and teaching aids. The DVD-ROM also contains videos of the negotiation, mediation and arbitration sessions. They provide realistic and highly practical visual instructions of the practice of Private Dispute Resolution. The subtitles in the video refer back to the Answers in the Handbook and provide the user with a unique opportunity for an integrative learning approach, which includes not only the legal side but also the soft skills and advocacy skills required in the practice of Private Dispute Resolution. The 'Summary Guide to Effective Legal Negotiation' by Professor Charles B. Craver from George Washington University, Washington D.C., USA, which is also on the DVD-ROM opens the whole kaleidoscope of negotiation tactics, tricks and theories to the user of this project. The TreeAge decision-tree program allows the user to make his own calculations of the settlement value of the dispute between NedTrans and ALT.
The underlying idea of this Project is to allow the reader to experience an international business dispute through three different dispute resolution scenarios: negotiation, mediation and arbitration. Through this project, the reader will develop a better and deeper understanding of the similarities and differences of these three mechanisms.
This Project has been very well received both in international practice and in academic circles all over the world. The Project has been used in both postgraduate university courses and in-house training courses of law firms and corporate legal departments. Many students who attended the Willem C. Vis International Commercial Arbitration Moot in Vienna used the two books and DVD-ROM (containing more than four hours of highly practical training videos) to prepare for that competition.
The Second Edition takes account of new developments in the law of international Alternative Dispute Resolution (ADR), including the International Chamber of Commerce (ICC) Arbitration Commission's Report on 'Techniques for Controlling Time and Costs in Arbitration', new soft law instruments that have been issued in the area of international arbitration, and important court decisions such as the West Tankers judgment of the EU Court of Justice and the Hall Street Associates decision of the US Supreme Court. The basic thrust of the Project, which combines the hard law with the soft skills that are required for a successful practice in the area of international ADR, has remained untouched. For a more detailed explanation of the underlying ideas please refer to the Preface to the First Edition, reprinted immediately after this Preface.
The package which you hold in your hands consists of three items: the Case Study (Volume I), the Handbook (Volume II) and the DVD-ROM which you will find in the back cover of Volume I. In addition, there is a homepage on the internet at www.private-dispute-resolution.net. Due to its interactive nature, working with this package requires a special approach to achieve maximum learning efficiency. This approach is based on the fact that the books, DVD-ROM and homepage can and should be used simultaneously. Please check the instructions on the DVD-ROM and the homepage for the software and hardware requirements.
The Case Study is divided into three Parts with twenty-nine Scenarios. Part One (Scenarios 1-5) deals with business negotiations, Part Two (Scenarios 6-15) with international business mediation and Part Three (Scenarios 16-29) with international commercial arbitration. The structure of each Scenario follows the same three-tier pattern:
The Questions asked after the exposition of the factual background of each Scenario in Volume I are intended to prepare you for the discussion of the legal issues in the Answers to each of these Questions which you find in Volume II. The list of keywords which you find at the outset of each Scenario in the Case Study allows you to focus your thinking towards the respective problems while going through the facts of that Scenario.
The Handbook (Volume II) can be used in various ways.
It is strongly suggested that you first familiarize yourself with the factual background of the Case Study in Volume I and try to find your own answers to the Questions for each Scenario before proceeding to the Answers given in the Handbook. This will ensure a deeper understanding of the dispute resolution process and of the many legal issues related thereto. It is not necessary to read the Answers to all Questions in order to understand the case. For the quick reader, a summary of the Answer is given in a box at the end of each Answer. However, it is strongly recommended that you work through all Questions and Answers of the First and Second Scenario, where the groundwork is laid for the understanding of the dispute between the parties.
The Handbook can also be used as a general reference manual for the law of international commercial arbitration. The Handbook has three key features which allow you to use it in this way. First, the table of contents contains summaries of the problems to be discussed in the Answers of each Scenario. Secondly, you will find comprehensive lists of 'Issues Covered' in the Answers at the outset of each Scenario which provide a more detailed overview of the issues which are dealt with in the Answers of that Scenario. Thirdly, the comprehensive keyword index in the back of Volume II assists you in finding answers to specific legal problems covered in the Handbook.
The DVD-ROM which you will find in a plastic pocket in the back cover of Volume 1, has a large number of interactive teaching and learning features which you can use simultaneously with the books or separately.
The main menu of the DVD contains seven buttons: 'Parties and Persons', 'Case Development', 'Documents and Events', 'Materials', 'Videos', 'Soft Skills' and `Links'.
The button 'Parties and Persons' provides an overview of the 'actors' who appear in the video section of the DVD-ROM.
Under the button 'Case Development' you will find an animated graphical Case Development which enables you to better understand the sequence of events in the first two Scenarios of the Case Study. This tool should therefore be used simultaneously with the Case Study.
Under the button 'Documents and Events' you will find a chronological list of events for each Scenario, together with the relevant documents produced by the parties during the contract negotiations, the negotiations in the Hague, the mediation (fax messages, general contract conditions, etc.) and the arbitration (legal briefs, communications from the DIS Secretariat, orders of the Tribunal, awards, etc.) as pdf-files. You should refer to these documents whenever the symbol (0)' indicates that the document is reproduced on the DVD. You can also click from the Chronological Order of Events directly to the relevant document. Finally, you can print out all the documents (except for the letters from the DIS Secretariat) and create your own file of the case.
Under the button 'Materials', you will find the laws, mediation and arbitration rules, etc. which are referred to in the book. Again, the symbol `(0)', which you find both in the Case Study and the Handbook, indicates that the material can be found on the DVD-ROM. You will also find further important materials which are not directly relevant for the case but are highly important for a deeper understanding of international mediation and arbitration practice. For further materials, you may refer to the 'Links' section of the DVD-ROM. The Links section also provides access to the CENTRAL' s Translex Online Database and to some other internet sites. Under the 'materials' button, you also find a trial version of the decision tree/decision analysis software `TreeAge Pro' which allows you to do your own calculations of settlement values in the dispute between NedTrans and ALT.
The Case Study contains various personal meetings and hearings which are very hard to describe in written form. This applies to the negotiations between Mr Bakker and Mr Stutz in The Hague (Scenarios 4 and 5), the mediation between Mr Jaeggi and Mr Martens in Hamburg (Scenarios 7-14) and the hearing on the arbitral tribunal's jurisdiction in Scenario 20 as well as the two-day hearing on the merits as the core part of the arbitration between the parties in Scenarios 24-26. For each of these Scenarios, you will find a sequence of videos for the relevant meeting or hearing under the button 'Videos'. For each negotiation video, you will find a video comment by Professor Charles B. Craver from George Washington University, Washington D.C., USA, which you should watch only after you have seen the relevant negotiation video. Furthermore, it is recommended that, before watching the videos, you first read the Facts, Questions and Answers of these Scenarios. The video sequences contain subtitles which refer you to the paragraph numbers of the relevant parts of the Handbook.
Under the 'Soft Skills' button you will find a variety of learning and teaching aids for negotiation, mediation and arbitration. The 'Summary Guide to Effective Legal Negotiation', which was prepared by Professor Charles B. Craver and is reproduced on the DVD-ROM with his kind permission, deserves special mention. It provides you with a comprehensive and in-depth learning and teaching device for almost every aspect of negotiation theory and practice.
Finally, the internee homepage at www.private-dispute-resolution.com provides regular updates for the problems covered in the Handbook, reports about the `Making Of' of the videos and about workshops and seminars conducted with this project worldwide. It also contains information about the CENTRAL/DIS
Summer Academy, which takes place every year at the AVMZ and which is also based on this project.
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