JAMS International: The Complex Commercial Disputes Specialist provides new International Dispute Resolution Options February 7, 2012 Paris, FRANCE

1. JAMS International: The Complex
Commercial Disputes Specialist
provides new International Dispute
Resolution Options
February 7, 2012
Paris, FRANCE

2. JAMS International
• JAMS Founded in 1979 by retired Orange County (CA) Judge
Warren Knight
• Now- recognized mediation and arbitration provider for complex
commercial disputes (10,000-12,000 cases per year). 70%
Mediation, 30% arbitration. Parties from over 40 countries.
• 25 Offices in North America (Newest offices are Miami and Toronto)
• 300 Full time Arbitrators and Mediators
• Each arbitrator/mediator has their own dedicated case manager
• Standout cases: BP Oil disaster, Toyota defective product, Enron
cases, Erin Brockovich, Charlie Sheen
• JAMS neutrals often sit on panels of other institutional providers
(ICC, ICDR, AAA, CPR, HKIAC, etc)
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3. JAMS International
• JAMS International- based at 70 Fleet Street in London (partners in
Italy, Netherlands, Ireland)
• Formally launched in late September 2011
• Pan-European panel: multi-lingual (Dutch, Flemish, French,
German, Georgian, Hebrew, Italian, Portuguese, Russian, Spanish)
• Sectors: Banking and Financial Services, Corporate and
Commercial, Construction and Engineering, Employment and
Workplace, EU and Competition, Insurance and Reinsurance, IP,
Partnership and Shareholder, Pensions, Professional negligence,
Real Estate, Sport, Telecoms, Media and Entertainment, Utilities,
Shipping, Info Technology, Public International law etc.
• Panel bios are publicly available on www.jamsinternational.com
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4. JAMS International Arbitration Rules
• JAMS International arbitration rules
• Updated in August 2011
• Reflect what are considered “best practices” of the other providers
• Many of the same features of standard provider rules
• Some unique features intended to streamline the arbitration process
and to address certain common problematic situations in modern
arbitration practice
• Mediator in Reserve (Unique to JAMS): within 1 week of
commencement of international arbitration, a suggested list of
mediators will be sent to the parties. No charge to the parties for the
selection of the mediator in reserve, unless parties decide to utilize
the mediator’s services
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5. JAMS Model Clause (International)
• “Any dispute, controversy, or claim arising out of or relating to this
contract, including the formation, interpretation, breach or
termination thereof” shall be subject to arbitration “including whether
the claims asserted are arbitrable”.
• Written to ensure that parties intended to arbitrate questions of
arbitrability (First Options)
• Prevents court interference- either at an early stage of the
proceedings or after an international arbitration has been concluded
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6. Challenges to Jurisdiction
• JAMS Art. 17.1: “The Tribunal will have the power to determine the
existence or validity of a contract of which an arbitration clause
forms a part. Such an arbitration clause will be treated as an
agreement independent of the contract. A decision by the Tribunal
that the contract is null and void will not for that reason alone render
invalid the arbitration clause.”
• (Competence/Competence and Separability)
• 17.3: “By agreeing to arbitrate under these Rules, the parties will be
treated as having agreed not to apply to any court or other judicial
authority for any relief regarding the Tribunal’s jurisdiction, except
with the agreement in writing of all parties to the arbitration or the
prior authorization of the Tribunal, or following the latter’s ruling on
the objection to its jurisdiction.”

7. Arbitrator Selection
• Party appointed arbitrator selection
• Disclosure standards are strictly enforced to ensure independence
• JAMS will only administer a case if at least one JAMS arbitrator is
involved
• If JAMS is called upon to appoint a sole arbitrator or a chair, it will
use a list procedure (of at least five candidates)
• If JAMS appoints a sole arbitrator, it will take into account the
preferences and objections that may be expressed by a party
• Arbitrators bill on an hourly rate (with caps)
• Case admin fees are 10% of hearing revenues (with $80,000 cap)
• (Compare ICC admin cap at $113,000)
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8. Filing a case
• Claims can be filed electronically
• All proceedings can be done electronically (agreement of the parties
or order of the Tribunal)
• Consolidation or joinder and participation of third parties where
warranted (Article 6)
• Parties can insist on oral hearings
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9. Challenges and Removal of Arbitrators
• JAMS Art. 9: Challenge to Arbitrators
• 9.1: Party may challenge whenever circumstances exist that give
rise to justifiable doubts as to the arbitrator’s impartiality or
independence.
• JAMS International in its sole discretion will make the decision on
the challenge
• Reasons for acceptance or denial of challenge will not be
communicated
• JAMS Art 10.1 “If an arbitrator… in JAMS International’s sole
discretion, becomes unable to act, a substitute arbitrator will be
appointed pursuant to the provisions of Art. 10.3, unless the parties
otherwise agree or another procedure.”
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10. Disclosure/Discovery
• Disclosure/Discovery is generally permissible in international
arbitration- but unlikely you will get full-blown federal court discovery
• JAMS Art. 20: “The Tribunal may conduct the arbitration in whatever
manner it considers appropriate, provided that the parties are
treated with equality and that each party has the right to be heard
and is given a reasonable opportunity to present its case. The
Tribunal, exercising its discretion, will conduct the proceedings with
a view to expediting the resolution of the dispute”.
• You can include provisions for discovery in your arbitration clause-
CAUTION
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11. Disclosure/Discovery
• Limited Disclosure/Discovery clauses- recent examples
• JAMS Efficiency Guidelines for the Pre-hearing Phase of
International Arbitrations (JAMS Guidelines)
o Provide key points in managing e-discovery
o Chair (or other arbitrator) can act alone to resolve
disclosure disputes
o Lengthy briefs on pre-hearing disclosure are discouraged
o Parties should negotiate pre-hearing disclosure differences
in good faith
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12. Timing- Pre-Hearing Conferences/Streamlined
Arbitration
• Art 21: Modified Time Limits
• Parties may agree to shorten time limits. After Tribunal has been
appointed, need approval to shorten time limits.
• 21.2: Urgent circumstances- party can apply for expedited formation
of the Tribunal
• Art 22: Pre-hearing conference
• 22.1: Tribunal may hold a pre-hearing conference, in person or via
telephone
• 22.2 Tribunal may provide agenda for pre-hearing conference in
advance (i.e. applications for interim measures, arbitrability
objections, jurisdictional objections, bi-furcation, consolidation,
scheduling hearings, expert witnesses etc.)
• Mediator in Reserve (Unique to JAMS): within 1 week of
commencement of international arbitration
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13. Experts
• Art 24: Experts and Other Witnesses
• 24.1: Tribunal may require either party to give notice of identity of
witnesses and subject matter of their testimony
• 24.7: Tribunal, after consulting with parties, may appoint one or
more experts, define the scope of their work and receive their
reports.
• 24.8 Fees of Tribunal appointed expert will be part of the costs of the
arbitration
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14. Emergency/Interim Measures
• Art 26: Interim Measures of Protection
• 26.1: “At the request of any party, the Tribunal may take whatever
interim measures it deems necessary, including injunctive relief and
measures for the protection or conservation of property, including, at
the Tribunal’s discretion, measures to secure the payment of any
award that might be rendered.”
• 26.3: “A request for interim measures addressed by a party to a
judicial authority will not be deemed incompatible with the
agreement to arbitrate or a waiver of the right to arbitrate.”
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15. The Award
• Award in JAMS international arbitration is scrutinized by the JAMS
International Arbitration Committee. JIAC may suggest
modifications as to the form of the award and may also draw the
Tribunal’s attention to points of substance (Art. 32.3)
• WHY JAMS International??????
• 1) Pay as you go (no large up-front fees)
• 2) Experienced full time arbitrators and mediators
• 3) High Quality Case Management (lawyers and college grads,
highly trained)
• 4) Each arbitrator assigned to a case manager- no reinventing the
wheel
• 5) Expeditious and cost effective results
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16. The Growth of Mediation in the EU-What you
need to know
• 2008 EU Directive on Mediation
• Aimed to promote and educate parties about cross border
mediation
• 26 Member States required to put in place cross border
mediation laws by May 2011
• Some countries have gone farther (Italy, etc)
• Measurable decrease in backlog in Court cases in Italy
• Push from US- JAMS has more experience mediating
complex commercial disputes than any other dispute
resolution provider (10,000-12,000 cases per year)(Cf. ICC
2010- 13 ADR cases). Clients are demanding counsel who
are experienced mediation advocates (Bombardier, Siemens,
etc)
• Need for mediation advocacy and one-stop shopping
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17. Status Quo in the EU
Time (calendar days) Cost (% of a claim = 200% GNI per capita)
1,290
1.210
830
819
735
611
565
564
547
515
515
514
512
508
505
425
399
397
395
394
380
375
331
321
309
275
Slovenia
Italy
Poland
Greece
Cyprus
Czech Rep
Slovakia
Bulgaria
Portugal
Ireland
Spain
Netherlands
Romania
Sweden
Belgium
Estonia
UK
Austria
Hungary
Germany
Denmark
Finland
France
Luxemburg
Latvia
Lithuania
33.0%
31.2%
30.0%
29.9%
28.9%
26.9%
26.3%
24.4%
23.8%
23.6%
23.4%
23.3%
23.1%
18.0%
17.9%
17.2%
16.6%
16.4%
14.4%
14.4%
13.0%
13.0%
12.7%
12.0%
10.4%
9.7%
Czech Rep
Sweden
Slovakia
Italy
Romania
Ireland
Estonia
Netherlands
Bulgaria
Lithuania
UK
Denmark
Latvia
Austria
France
Spain
Belgium
Cyprus
Germany
Greece
Hungary
Portugal
Slovenia
Poland
Finland
Luxemburg

18. Court: Time and Cost in Belgium
Time
15 400 90
Trial and Judgment EnforcementFiling
505 days
Cost
€ 10,000 € 3,500 € 2,500
Attorney Cost Court Cost Enforcement
Cost
€16,000
Source: Doing Business, World Bank, 2009

19. € 11,206 € 1,490 € 2,673
Attorney Cost Court Cost
40 900 270
Filing Trial and Judgment Enforcement
1,210 days
Time
Cost
€15,370
Court: Time and Cost in Italy
Source: Doing Business, World Bank, 2009
Enforcement
Cost

20. Mediation in Belgium, Italy and EU
45 days
€ 7,000
47 days
€ 4,369
88 days
€ 2,497
BELGIUM
ITALY
EU (average)
Time
Cost
Time
Cost
Time
Cost
Source: Survey Data Report, 2010

21. Less than 1 %
Recourse to mediation
(mediated settlements/pending cases)
The European Mediation Paradox
70%
Rate of Success in Mediation
(when it takes place)

22. WHY JAMS INTERNATIONAL?
“JAMS International brings world leading mediation and
arbitration experience to the European Union. Building
on decades of dispute resolution leadership over tens of
thousands of cases, and leveraging the unparalleled
industry knowledge and global expertise of our
panellists, we can resolve complex cross-border
commercial disputes quickly, confidentially and cost-
effectively.”

23. CONTACT INFO
For more information on JAMS International:
Lorraine M. Brennan, Managing Director, JAMS International
Email: lbrennan@jamsinternational.com
70 Fleet Street
London, UK EC4Y 1EU
Phone: +44 207 356 0851
www.jamsinternational.com