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6 Int'l. In-House Counsel J. 1 (2012-2013)

handle is hein.journals/iihcj6 and id is 1 raw text is: International In-house Counsel Journal Vol. 6, No. 21, Autumn 2012, 1 The Transactional Side of the International Arbitration and the Role of Corporate Counsel JORGE PEREZ-VERA Senior In-house Counsel, Total Raffinage Marketing, France Introduction In the business community, almost 100% of arbitrations are initiated by companies. For them, arbitration' is clearly an appropriate way to solve disputes when breaches of contracts or treaties are evident and it is clear that the other party does not care about damage caused to the opposing company. But, even if it remains a popular choice in practice, arbitration also has limits for international business players. The mixed results of arbitration for companies arise from a number of known factors that are common in court litigation but are even more relevant in arbitration proceedings: the length of proceedings, high external expenditures, a significant amount of internal work in coordination and case strategy,2 a controversial interpretation of international public laws rules, the risk of annulments, and a high risk of retaliation in the event or arbitration against a government, especially in investment arbitration. Disadvantages such as procedural complexity, legal challenges to jurisdiction or competence of proceedings, unpredictability and challenges to enforceability of decisions are not specific to arbitration. Given that arbitration is in a sense private justice and that business prefers negotiated dispute resolution in good faith, the possibility to reach a successful conclusion of the dispute without pursuing the arbitration to its ultimate conclusion is an attractive and natural option for companies. Therefore, the question is how and when the company should attempt a possible negotiated solution. 1) Do companies need to raise the question of a negotiated solution? The answer is definitively yes, and the sooner is the better. The point can be raised at any stage of the proceedings, whatever the position of the company may be (claimant or respondent). It can be raised either by company executives or by in-house counsel. In some circumstances, the matter is crucial, i.e. where maintaining the relationship between the parties is equally as important as the resolution of the dispute or when the proceedings are too long 3 and the outcome highly uncertain and politically or socially under the scrutiny of the media or shareholders.4 We refer here to both commercial and state-investor arbitration, even if the latter follows different rules and is conducted before different type of afbitral tribunals. 2 As far as the Western practice of arbitration is concerned, see Cost ofinternational Arbitration Survey 2011 published by the Chartered Institute of Arbitrators (CIABrb) and, 2010 International Arbitration: Choices in International Arbitration, published by White & Case and Queen Mary - University of London. 3 Mohammad Alramahi, Dispute Resolution in Oil and Gas Contracts, International Energy Law Review, 2011, Issue 3, p. 82. 4 One example which shows the difficulty of some cases is that started in 1993, involving TexPet, indigenous Ecuadorean tribes (as plaintiffs), plaintiffs' lawyers and the Ecuadorian State, before Ecuadorian and U.S. jurisdictions and an arbitration panel from the Permanent Court of Arbitration and which is still underway. This case doesn't relate to arbitration only but it shows the crucial legal and non legal issues of long and complex proceedings. ISSN 1754-0607 print/ISSN 1754-0607 online International In-house Counsel Journal