mARCH 2012 www.lawyer-monthly.com Global Arbitration 25

One of the things I most enjoy about my practice is the ability to mix my advisory and advocacy work as counsel with practice as an arbitrator.

David Brynmor Thomas Q

Is there a typical method of dealing with dispute resolution for all businesses or do you have to employ a specific tactic for foreign companies compared to local companies?

I do not think there should be a typical method of dealing with dispute resolution for all businesses. When parties choose arbitration they are agreeing to let an independent third party, appointed by them, resolve their dispute. I do not think it is too much for those parties to expect the third party to make the effort to understand them and resolve the dispute so that each party feels that it has been listened to, its case and its interests have been taken into account and it has been treated fairly. The various sets of international arbitration rules are deliberately brief, almost sketchy. That means that they have a great deal of flexibility, which can be used for the benefit of the parties. There is no need for 'cookie-cutter' arbitration.

When businesses come from the same

background and jurisdiction they tend to have similar expectations about how the arbitration will be conducted in terms of procedure, evidence and the like. It tends to be much more straightforward to get parties in that case to agree to the procedure for the arbitration – they may be much more likely to present the Tribunal with an agreed procedural timetable and approach.

In contrast, when businesses are from

different backgrounds and jurisdictions, they often have different expectations about the approach to be taken to procedure in the arbitration and how different questions and issues will be addressed and answered. At that point it is necessary to 'synthesise' the parties' differing expectations, with the goal of

producing a procedure for the dispute that each party understands and is happy with.

Q

The recent breakdown in relations between carmakers Suzuki and Volkswagen has recently pushed Suzuki to demand that Vw submit to arbitration as it attempts to force the company to sell a 20% stake it owns in the Japanese group. what are your opinions on this case?

This is the sort of dispute that is typically referred to arbitration rather than being dealt with in state courts. Long-term relationships, such as joint ventures or strategic shareholdings, frequently take advantage of the confidentiality that is available in arbitration, in contrast to national court litigation. Although confidentiality in arbitration can be easier to recognise than it is to describe, and although the Suzuki/VW dispute itself is clearly not completely confidential, arbitration is nonetheless better placed to allow parties to express their commercial intent in relation to such long-term agreement, and how that intends to take into account, without making sensitive commercial information public.

Q

Do you foresee the need for legislative change in 2012, if so why?

I do not foresee the need for legislative change in 2012, nor do I see us getting Parliamentary Time for such change in any event. Although we took a decision in England not to

implement the UNCITRAL Model Law, enacting the 1996 Arbitration Act instead, I think it would be valuable for us to revisit that decision and consider whether to adopt the UNCITRAL Model Law in England and Wales, possibly with modifications to address the specific needs of some industries or of domestic arbitration. However, that is a debate for us to have in 2012, and beyond, it is not legislative change that we need in 2012.

The relationship between the European

Union, member States and arbitration also remains to be defined and worked out properly. The present uncertainty in relation to the arbitration exception under the Brussels Regulation and in relation to Treaty Arbitration in the context of the Lisbon Treaty will have to be addressed and worked through. LM

CONTACT:

David Brynmor Thomas Barrister

Thirty Nine Essex Street, 39 Essex Street,

London, WC2R 3AT Tel: +44 (0) 207 634 9036

Email:david.brynmor.thomas@39essex.com Website: www.39essex.com