International and Domestic Arbitration is a core activity of K&L Gates. The wider Dispute Resolution practice represents over one-third of the practice of the firm. Within that, the Arbitration Group contains well over 100 partners and lawyers firmwide.
K&L Gates has enjoyed a strong reputation for its tough yet commercial approach to cases over many years. Our lawyers adopt vigorous and cost-effective methods to achieve high rates of success and maximize client satisfaction. We are regularly retained by some of the world's leading companies on business critical assignments.
A list of lead contact partners in the Arbitration Group across our offices can be found by clicking here.
Detailed information about our practice can be found in the following sections:
Our Differentiating Factors
The strength of the firm's Arbitration Group lies in the quality and breadth of experience of our people.
Over recent years we have been involved in arbitrations in many countries across the world, including both non-administered arbitrations and arbitrations administered by the leading arbitration institutions, with the subject matter of disputes spanning a broad range of sectors ranging from Middle Eastern property investment to Latin American offshore oil extraction and from complex insurance coverage disputes to software disputes. Work over recent years has included:
- institutionally administered arbitrations under the rules of the ICC, LCIA, AAA and HKIAC, amongst others;
- a broad spectrum of non-administered arbitrations, including proceedings under the UNCITRAL rules, trade association rules, special international tribunals and pure ad hoc arbitrations;
- arbitrations seated in the major arbitration centers of the U.S., in London, Paris, Geneva, Hong Kong and elsewhere; and
- arbitrations regarding insurance coverage under "Bermuda Form" policies.
Click here to see a summary list of the principal arbitration matters in which the firm has acted.
Although we are proud of our track record in arbitration, we are mindful that clients select advisers on more than their track record. Over recent years, our experience has enabled us to evolve our client representational skills in a number of ways which we believe materially add value. By way of example:
Knowledge of Arbitrators and Tribunal Selection
Our knowledge of arbitrators places us in a position to ensure our clients’ cases are presented in such a manner as is most likely to appeal to the majority of the tribunal, bearing in mind their particular likes/dislikes and their overall approach. This also places us in a strong position to assist our clients in getting the ‘right’ tribunal, when it comes to selecting the arbitrators.
Our Arbitrators
Many of our lawyers regularly sit as institutionally appointed or party nominated arbitrators in tribunals dealing domestically in both the U.S. and U.K., and internationally. This experience of acting as arbitrator can prove invaluable when it comes to acting as counsel for a party and in deciding what methods and strategies are most likely to be effective with the arbitral tribunal.
Guidance on Process
Our experience in conducting international arbitration means that we are able, within the framework of any relevant institutional rules and applicable procedural law, to identify the procedure (for example in terms of scope and presentation of evidence) which best suits our clients’ individual cases and interests.
Costs Projections and Budgeting
We seek to reduce and manage our clients’ concerns on this topic through preparation of a carefully considered cost projection, setting out estimated time scales and costs for each stage of the process, assisting them in budgeting and cash flow management throughout the arbitration process. Our geographical spread enables us to structure our teams so as to ensure that all cases are handled as cost efficiently as possible.
Case Assessment
We conduct a thorough case assessment and evaluation early on in any case, identifying the strengths and weaknesses, and discussing in full with our clients the likely outcomes. We keep cases under close review and keep our clients advised as to strategy, including any possibilities for settlement, throughout.
Events and Publications
In order to provide our clients with added service, we keep them informed of developments in arbitration practice by way of (a) newsletters (in particular, “K&L Gates’ Arbitration World”), (b) provision of in-house training, and (c) seminars, including our all day arbitration symposiums, and dinner debates. For a report on our International Arbitration Dinner Debate hosted at the Ritz Hotel, London on 18 November 2008, click here.
To register to receive future editions of "K&L Gates' Arbitration World", please .
To find out details of our forthcoming arbitration events, click here.
Partnering and Innovative Fee Structures
We recognize that in many instances clients seek a closer relationship with their law firms as well as a willingness on the part of the law firm to invest in the relationship. Our firm has pioneered the concept of “partnering” and is responsive to client requests for innovative and alternative fee structures where appropriate.
Our Technology Advantage
In 2002, 2003 and 2004, CIO Magazine conferred its prestigious "CIO 100 Award" on K&L Gates. This annual list of 100 enterprises is composed largely of global corporations that are recognized for extraordinary achievements in the technology field. K&L Gates is the only law firm in the world to receive three consecutive CIO 100 Awards, and is one of only three law firms to be recognized in the 17-year history of the Award.
K&L Gates has a strong belief in the value of technology and is committed to using it to facilitate client service.
In the area of international disputes (including arbitration), we operate:
- documentary evidence collation and management systems;
- evidence presentation systems;
- costs projection and reconciliation systems; and
- risk assessment systems.
Web-based technologies are used for both client and internal collaboration and communications, including client extranets, allowing us to work seamlessly across borders.
Our e-Discovery Analysis and Technology (e-DAT) Group was developed specifically to help manage and control the costs associated with document-intensive litigation. This proprietary service delivers creative, efficient and cost-effective discovery counsel, records management and legal review solutions. Click here for more information.
Political Risk Management and Dispute Avoidance
Our lawyers regularly assist in the formulation of integrated dispute resolution mechanisms within a range of agreements spanning a broad spectrum of commercial sectors. Increasingly our lawyers are involved in the structuring of agreements in relation to investment projects in order to take advantage of Multilateral and/or Bilateral Investment Treaties so as to provide against political risk.
Please click here to view and listen to a webinar we hosted on this issue.
Our lawyers are also actively engaged in dispute avoidance and are regularly involved in a range of Alternative Dispute Resolution mechanisms whether that be mediation, mini-trial, Med-Arb or bespoke forms of structured negotiations.
Diversity
K&L Gates took the lead in a fresh approach to diversity in the legal profession, creating the position of Chief Diversity Officer in 2003 and launching one of the legal profession’s most ambitious diversity initiatives.
Sectors
Examples of the sectors in which the firm's Arbitration Group is active, include the following:
Construction and Engineering
Members of the Construction and Engineering Practice Group have extensive experience of arbitrations, both domestic and international, representing building owners, contractors, sub-contractors and professionals, on a variety of substantial projects from commercial, transportation, and heavy industrial through to process engineering.
Click here to see examples of construction and engineering arbitrations in which the firm has acted.
Insurance Coverage
Members of the Insurance Coverage Practice Group have significant arbitration experience, both domestic and international, involving insurance policies and the liability of insurers pursuant to a wide variety of types of policy where cover or interpretation of wording has been in dispute. The group is currently engaged on a number of "Bermuda Form" disputes, several emanating from recent natural disasters.
Click here to see examples of insurance coverage arbitrations in which the firm has acted.
Energy
K&L Gates regularly represents clients in the energy sector in both domestic and international arbitrations. Our experience ranges from cogeneration facilities, oil and gas, hydropower facilities, independent power facilities, coal processing, long-term supply arrangements and power plant equipment.
Click here to see examples of energy-related arbitrations in which the firm has acted.
Investor State
The arbitration of disputes between private investors and sovereign governments has increased in importance in the last decade with the proliferation both of bilateral investment treaties (BITs) and of multilateral investment treaties (MITs) such as NAFTA, CAFTA and the Energy Charter Treaty. Investment treaties can be an important additional layer of protection for investors especially, but not limited to, those investing in emerging markets. Our lawyers have experience both in advising on the structuring of transactions to gain maximum benefit from investment treaty protections and in managing investment treaty disputes.
Click here to see examples of experience of K&L Gates lawyers in investor-state arbitration.
Natural Resources
Many of the firm's most active clients operate in one of the sub-sectors of natural resources, whether they are oil and gas, base or precious metals, minerals, aggregates, timber or water. A number of our recent assignments, and several prospective assignments, involve parties active in one or more of these sectors, often in dynamic and challenging regions of the world.
Click here to see examples of natural resources arbitrations in which the firm has acted.
Sports
Arbitration is becoming an increasingly popular method of dispute resolution in the sports industry (as exemplified by the growth in references to the Court of Arbitration for Sport). The firm has a substantial and well established sports group, acting for clients across the sports industry, from players to promoters/sponsors to event organizers. The combination of the firm's knowledge of the industry and expertise in arbitration means we are well placed to advise on sports arbitrations.
Click here to see examples of sports arbitrations in which the firm has acted.
Information Technology and Telecoms
K&L Gates lawyers have considerable experience in connection with disputes involving information technology and telecommunications projects, both domestic and international. Telecoms in particular have represented a particularly fertile ground for international arbitral disputes in recent years.
Click here to see examples of IT & Telecoms arbitrations in which the firm has acted.
Securities
K&L Gates regularly represents a broad range of clients in securities arbitration conducted under the auspices the Financial Industry Regulatory Authority (FINRA) and previously before its predecessor organizations, the National Association of Securities Dealers (NASD) and the New York Stock Exchange (NYSE). Our clients range from some of the largest brokerage firms in the world, to medium-sized and smaller brokerage firms, investment advisory firms, money managers, mutual fund affiliates, and individual brokers and advisers.
Click here to see examples of securities arbitrations in which the firm has acted.
The Benefits of International Arbitration
Many commentators have observed that the primary driver behind the dramatic increase in the volume of international arbitration over the last 10 years has been the globalization of the world economy. There is ample evidence that, in many sectors, arbitration is now seen as the first choice for the binding resolution of commercial disputes where international companies and/or state entities enter into contractual relationships which span national borders.
The five key strengths of arbitration in the sphere of international trade are commonly said to be: enforceability, neutrality, confidentiality, cost effectiveness and speed. The following comments represent no more than an overview:
Enforceability
Perhaps the most important feature of any dispute resolution process is the enforceability of the final decision. The extraordinary reach of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (which now extends to some 142 countries throughout the world) gives arbitral awards greater international enforceability than state court judgments which rely for enforceability upon the existence of bilateral enforcement treaties between the state of the court seized of the dispute and the state in which the assets of the judgment debtor are located. A large number of countries are parties to the New York Convention but do not have bilateral enforcement treaties in place with the U.S., U.K. or other major industrialized Western European countries. For example, there is no applicable treaty regarding court judgments in place between the U.S. and the U.K.
The New York Convention gives arbitration an enormous advantage in practical terms. Click here to see a list of all the countries who have signed up to it. Problems can still occur however and public policy of different countries will sometimes make enforcement of awards more challenging. For more information on this, click here for a recent webinar we hosted titled "What Happens When State Courts Refuse to Play by the Rules?" We recognize the importance of identifying at an early stage the practical consequences of decisions taken to resolve disputes with international dimensions.
Click here to read an article by partner Jack Boos examining some of the complexities involved in international arbitration recognition and enforcement proceedings.
Neutrality
In many parts of the world, state courts are perceived to be susceptible to undue influence. International Arbitration, which takes place before a neutral panel and often in neither party's home country, can afford the parties a more reliable means of resolving commercial disputes. This is particularly so, where one or more of the contracting parties is a state or state-controlled entity.
Confidentiality
It is a general principle of arbitration that the dispute resolution process is private, such that the press and general public do not have access to the documents in the case, the hearings, or any final awards which will remain confidential to the parties.
In recent years, the principle has been eroded by factors such as the increasing disclosure obligations of publicly quoted companies, procedural rules of state courts requiring disclosure at the point of enforcement or appeal, and the practice of reporting awards. Despite this, most forms of arbitration still afford parties far greater confidentiality than state court litigation.
Cost Effectiveness
In many state courts, scope exists to gain access to extensive discovery/disclosure documents, engage in detailed examination of witnesses, employ delaying tactics, and appeal judgments on both questions of law and on the merits. Although many commentators take the view that International Arbitration is progressively adopting procedures and approaches which more closely mirror state court litigation, scope still exists to construct more cost-effective procedures. Documentary disclosure is rarely conducted on the same scale as encountered in U.S. or U.K. court litigation, depositions are rarely granted, the tribunal commonly takes a more hands on approach to procedure, and techniques such as witness conferencing and chess clock time divisions can dramatically reduce the duration, and hence the cost, of the process.
Speed
Arbitral proceedings can (subject to the parties and the tribunal continuing to advance the process) reach a conclusion on a more rapid timescale than court proceedings. Moreover, arbitration awards are far less susceptible to appeal, thereby truncating the time to receipt of an enforceable award.
Administered or Non-Administered Arbitration
One of the key questions for parties considering whether to subject their contractual relationships to Arbitration, is whether they should describe in the arbitration clause an administering institution.
The advantages commonly cited for opting for institutional arbitration are as follows:
- The certainty provided by the use of tried and tested arbitration clauses.
- The provision of established and time-tested rules and procedures.
- Institutional assistance in the appointment of the arbitrators.
- The availability of arbitrators from a screened pool of candidates.
- Assistance in the setting of fees for the arbitral tribunal.
- The ability to arrange for ancillary assistance.
- Most institutions offer other forms of alternative dispute resolution.
- Arbitration awards from such institutions will generally carry extra weight which can assist the ultimate enforcement of the award.
The commonly cited reasons for proceeding on a non-administered basis are:
- The administrative fees may be excessive, particularly if calculated on the basis of the sum in dispute.
- Procedural rules can be tailored to the dispute with the consequent ability to speed up and streamline the process.
The firm's Arbitration Group has extensive experience in both administered and non-administered Arbitrations conducted both domestically within the U.S., U.K. and internationally.