International Arbitration
GI&T Law Office
At GI&T Law Office, a team led by Kengo Nishigaki (attorney at law) and Joel Greer (registered foreign lawyer in Japan) has successfully and cost effectively handled a large number of international arbitration matters. International arbitration often is perceived as expensive given the attorneys’ fees, administrative costs of arbitral institutions, and arbitrator fees. However, our firm has long advocated and put into practice ways to conduct arbitration more cost effectively in order to keep the process and attendant costs proportionate to the amount in dispute.
Why International Arbitration?
International arbitration is a dispute resolution procedure by which, typically on the basis of a written arbitration agreement contained in a contract or elsewhere, one party refers a legal dispute with another party to an arbitral tribunal for a final and binding decision. The advantages of international arbitration in cross-border disputes are numerous, but among the most important are (1) enforceability of the arbitral award, and (2) the neutrality of the decision-maker (i.e., the arbitrator(s)).
(1) Enforceability of Arbitral Award
The cross-border enforceability of national court judgments cannot be taken for granted.
For example, the judgment of a Japanese court generally cannot be enforced in China. At first glance, agreeing on Tokyo District Court in the dispute resolution clause of a contract between a Japanese company and a Chinese company may look advantageous to the former. In practice, however, if the Chinese company sues the Japanese company in the Tokyo District Court and prevails, it can enforce the court judgment against the Japanese company in Japan. But if the Japanese company sues the Chinese company in Tokyo District Court and prevails, it cannot enforce the judgment against the Chinese company in China. This result is inequitable.
By contrast, in international arbitration the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) — to which most countries in the world, including Japan, are contracting states — provides that an arbitral award can in principle be recognized and enforced by parties in many countries where their counterparties may be headquartered or have assets. The New York Convention has been described as a pro-arbitration treaty because it provides only limited grounds for national courts to refuse to recognize and enforce foreign arbitral awards.
(2) Neutrality
When a Japanese company is involved in a dispute with a non-Japanese counterparty and must submit to the judgment of a national court outside Japan where that counterparty is based, the Japanese company may have doubts whether the court will decide the matter neutrally or whether it might potentially rule in a manner that is preferential to the local counterparty.
By contrast, in arbitrations administered by an arbitral institution such as the International Chamber of Commerce (ICC) or Singapore International Arbitration Centre (SIAC), if parties are unable to agree on members of an arbitral tribunal, the arbitral institution can be relied upon to appoint a competent, trustworthy, and neutral arbitrator.
Largely for these two reasons, international arbitration is often the preferred mechanism to resolve cross-border disputes.
On the other hand, as noted above, international arbitration can be more expensive than litigation. While arbitration entails certain costs not associated with litigation, a key reason arbitration is so expensive is that large international law firms are frequently retained and their lawyers’ hourly billing rates typically are extremely high.
Cost-Effective Arbitration — Our Goal and Commitment
Against this background, Kengo Nishigaki and Joel Greer — both of whom worked on international arbitration in the dispute resolution groups of international law firms — draw on their experience to practice international arbitration as cost effectively as possible at GI&T Law Office, so that arbitration can be used efficiently even for cases where the amount in dispute may be relatively modest. Joel Greer, a registered foreign lawyer in Japan, has 20 years of experience in international arbitration gained at several international law firms.
Cost-Effective Arbitration — Five Techniques Briefly Explained
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Take advantage of expedited procedures where possible. As the name suggests, expedited procedures are intended to promote faster and less costly arbitral proceedings than regular arbitration. Expedited procedures apply if the parties agree or by default depending on the amount in dispute and the date of the arbitration agreement.
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Unless necessary, try to avoid bifurcation, or splitting arbitral proceedings into two phases, e.g., jurisdiction and merits, as this can add significant time and cost to an arbitration.
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Try to limit document requests and witness statements only to what is essential. Requests for and production of numerous documents, interviewing many witnesses, and examination of witnesses in a hearing typically are among the most expensive and time-consuming aspects of international arbitration.
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Where possible, conduct hearings and meetings with the arbitrator(s) and opposing counsel online to reduce costs.
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Consider the possibility of resolving a dispute by international mediation (which is essentially a negotiation facilitated by a mediator) as it is much less costly and time consuming than regular international arbitration.
If you would like to know more about our services, please feel free to contact us.
Use expedited procedures when possible
Avoid unnecessary bifurcation
Streamline document production
Use online hearings when possible
Use international mediation when possible