After rereading the announcements and doing a little digging about arbitration procedures, I have some comments about the November 03 date for a "hearing" on the ECD et al/Matsushita et al lawsuit (second link below). Most on the Yahoo! ENER Board took it for essentially the start of the arbitration, but I see no basis for this conclusion since the subject hearings could be for a very late stage of the arbitration rather than an early stage.
What follows is at least sensible, *though necessarily somewhat speculative* since much is lacking in the way of publicized details specific to this arbitration.
The first announcement, Nov 15, and a quote:
ovonic.com
"The Court of Arbitration has requested that the parties file necessary documents by December 5, 2002. Following a discovery period, the matter will be submitted to a three-member Arbitral Tribunal."
Note the three basic phases: Document filings, discovery period, submission to the Tribunal. From several sources, some linked later in this series of posts, it is clear that these phases overlap a lot -- for example, the documents filed by the parties in the "opening round" typically include much of the "discovery" material -- the basic "cases" for each party.
The second announcement, Dec 6, and quotes:
ovonic.com
"The (arbitration) agreement establishes the basic terms, conditions and procedures to resume arbitration before The International Chamber of Commerce, International Court of Arbitration of the existing patent infringement disputes involving nickel metal hydride batteries used in gasoline-electric hybrid vehicles and other products. The arbitration had been stayed pending settlement talks which have now broken off."
In passing, just when did this initial arbitration, now resumed, begin? I think there was never a public announcement of the initial decision for arbitration -- instead, an actual court trial was temporarily stayed, pending a possible direct settlement. Perhaps when the parties agreed to try for an out-of-court settlement they also both agreed to submit to arbitration if they could not reach a settlement. Whatever, the history certainly has not been made clear.
"Pursuant to the arbitration agreement, the existing disputes among the parties will be resolved in the arbitration and therefore the parties have agreed to dismiss the patent infringement litigation previously initiated by ECD's related companies in the U.S. District Court, Eastern District of Michigan. Also, the arbitration proceeding will be held in New York City, with a hearing before the Arbitral Tribunal expected to occur in November 2003."
Many have taken this last statement to mean that the arbitration proceedings are more-or-less to commence in November 2003. However, it only says a hearing will be held on that date -- not that the proceedings begin on that date. I think, instead, that the Tribunal, after the "hearing" date, will be ready, or nearly so, to make its decision. IMO, this would match typical arbitration procedures. So that you can make your own judgments, quotes follow from various sources re rules and procedures for arbitration.
A couple of important points re arbitration proceedings and how they relate to our case:
1) Arbitrators have a lot of leeway regarding the details of the proceedings, within their general duties and powers. For example, they may or may not hold face-to-face meetings between themselves and/or with the parties. For another, while there is apparently always a "seat" for the arbitration -- New York City in our case -- arbitrators can decide to "hold" the "proceedings" mainly or entirely by mail, etc. -- and may or may not have some actual "hearings" (oral presentations). That is, much and sometimes all the evidence and arguments are submitted in written form.
2) The request for arbitration usually includes the claimant's facts and evidence, and, the defendant must present his response in written form -- within a month, say (the time can possibly be negotiated with the arbitrators). In our arbitration case -- given the long negotiations already done -- well-developed argumentation for both parties should now be submitted to the Tribunal in written form. But, actual hearings have evidently been either sought by the parties or deemed necessary by the arbitrators -- and presently scheduled for November 03. This late date suggests these hearings are only for summary or supplementary arguments/pleadings -- like the final statements to the judge or jury at the end of a trial. So, I think our arbitrators would then be ready to quickly conclude their deliberations. Whatever, a one-year time period for a concluded arbitration seems on the long side -- since 6 months is often cited as a typical period. And, commencing arbitration after nearly one year from the filings would be truly weird -- read on.
Here are three good links to read. They are rather repetitive, but I want to establish that the rules of arbitration are fairly much the same -- in most Western countries, at least -- and for the UN.
jus.uio.no (U.S. rules re international arbitration)
I. Commencing the Arbitration
Notice of Arbitration and Statement of Claim
Article 2
"2. Arbitral proceedings shall be deemed to commence on the date on which the administrator receives the notice of arbitration.
3. The notice of arbitration shall contain a statement of claim including the following:
(a) a demand that the dispute be referred to arbitration;
(b) the names and addresses of the parties;
(c) a reference to the arbitration clause or agreement that is invoked;
(d) a reference to any contract out of or in relation to which the dispute arises;
(e) a description of the claim and an indication of the facts supporting it;
(f) the relief or remedy sought and the amount claimed; and
(g) may include proposals as to the means of designating and the number of arbitrators, the place of arbitration and the language(s) of the arbitration.
4. Upon receipt of the notice of arbitration, the administrator shall communicate with all parties with respect to the arbitration and shall acknowledge the commencement of the arbitration.
Statement of Defense and Counterclaim
Article 3
1. Within 30 days after the commencement of the arbitration, a respondent shall submit a written statement of defense, responding to the issues raised in the notice of arbitration, to the claimant and any other parties, and to the administrator.
2. At the time a respondent submits its statement of defense, a respondent may make counter- claims or assert setoffs as to any claim covered by the agreement to arbitrate, as to which the claimant shall within 30 days submit a written statement of defense to the respondent and any other parties and to the administrator.
3. A respondent shall respond to the administrator, the claimant and other parties within 30 days after the commencement of the arbitration as to any proposals the claimant may have made as to the number of arbitrators, the place of the arbitration or the language(s) of the arbitration, except to the extent that the parties have previously agreed as to these matters.
4. The arbitral tribunal, or the administrator if the arbitral tribunal has not yet been formed, may extend any of the time limits established in this article if it considers such an extension justified.
Conduct of the Arbitration
Article 16
"1. Subject to these rules, 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 fair opportunity to present its case.
2. The tribunal, exercising its discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute. It may conduct a preparatory conference with the parties for the purpose of organizing, scheduling and agreeing to procedures to expedite the subsequent proceedings.
3. The tribunal may in its discretion direct the order of proof, bifurcate proceedings, exclude cumulative or irrelevant testimony or other evidence, and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case.
Further Written Statements
Article 17
1. The tribunal may decide whether the parties shall present any written statements in addition to statements of claims and counterclaims and statements of defense, and it shall fix the periods of time for submitting any such statements.
2. The periods of time fixed by the tribunal for the communication of such written statements should not exceed 45 days. However, the tribunal may extend such time limits if it considers such an extension justified.
camera-arbitrale.com
(A short and plain-speaking, English version of Italian international arbitration rules)
TITLE III-The Proceedings
Art.11 - Seat of the Arbitration
In the absence of an agreement by the parties, the seat of the arbitration is at the seat of the Chamber of Arbitration of Milan, unless the Arbitral Council, taking into account special requests by the parties or the characteristics of the arbitration, determines a different seat before the first hearing before the arbitral body.
The arbitrators may further decide that hearings or single procedural acts take place in a place other than the seat.
Art.15 - Rules Governing the Proceedings and the Taking of Evidence
1. The rules applicable to the procedure shall be those established by the parties before the arbitral body is formed, by these Rules or, in the silence of the Rules, by the arbitrator.
2. Where the nature of the dispute allows, the arbitrator shall attempt a conciliation between the parties at the first hearing. This conciliation attempt may be renewed at any moment in the evidence taking phase.
3. The arbitrator may gather evidence both on his own initiative and at the request of a party, in full compliance with the principle of adversarial proceedings.
4. The arbitrator may appoint one or more expert witnesses for the arbitral body, define their mission, receive their reports and hear them in adversarial proceedings with any party-appointed expert witness.
At the request of the arbitrator, the expert witness for the arbitral body may also be appointed by the Arbitral Council. (snip)
When the evidence taking phase is concluded, the arbitrator may set a time limit for filing final statements and a last hearing for oral discussion.
Art.18 - Deliberation and Signing of the Award
Where an arbitral tribunal has been appointed, the award shall be deliberated by the arbitrators meeting in personal conference or videoconference, also at a place other than the seat of the arbitration, and shall be set down in writing.
The decision shall be taken unanimously or by majority vote or, where nomajority is possible, by the President of the arbitral tribunal.
1. The award may be signed by the members of the arbitral tribunal at different times and places, also abroad.
sice.oas.org
(Some U.N. notes on arbitration, particularly international)
7. Decisions by the arbitral tribunal on organizing arbitral proceedings may be taken with or without previous consultations with the parties. The method chosen depends on whether, in view of the type of the question to be decided, the arbitral tribunal considers that consultations are not necessary or that hearing the views of the parties would be beneficial for increasing the predictability of the proceedings or improving the procedural atmosphere.
8. The consultations, whether they involve only the arbitrators or also the parties, can be held in one or more meetings, or can be carried out by correspondence or telecommunications such as telefax or conference telephone calls or other electronic means. Meetings may be held at the venue of arbitration or at some other appropriate location.
9. In some arbitrations a special meeting may be devoted exclusively to such procedural consultations; alternatively, the consultations may be held in conjunction with a hearing on the substance of the dispute. Practices differ as to whether such special meetings should be held and how they should be organized. Special procedural meetings of the arbitrators and the parties separate from hearings are in practice referred to by expressions such as "preliminary meeting", "pre-hearing conference", "preparatory conference", "pre-hearing review", or terms of similar meaning. The terms used partly depend on the stage of the proceedings at which the meeting is taking place. |
