NEGOTIATION PRESENTATION

Group-5

Carolina Adrian TizebaMadigbè KabaManisha SharmaJean Pascal Ouendeno ​ ​ ​ ​

CP52064-Transatlantic Negotiation Simulation Exercise

START

In business, you do not get what you deserve, you get what you negotiate-Charles L. Karrass

Importance of Negotiating Dispute Resolution Clause

START

In business, you do not get what you deserve, you get what you negotiate-Charles L. Karrass

Importance of Negotiating Dispute Resolution Clause

Arbitration: as one of the most popular Dispute Resolution

conclusion

CASE STUDY:p&id CaseHooters case

importance of negotiating dispute resolution clause

dispute resolution

Overview on negotiation

INDEX

Overview of Negotiation

Definition & Context

Negotiation can be defined as a “back-and-forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed”.​ The context of negotiation depends on the type of transaction; in this presentation, we will be discussing mainly the commercial transaction.​

• Principled Negotiation​

The method of principled negotiation developed at the Harvard Negotiation Project is to decide issues on merits rather than through a haggling process focused on what each side says it will and won’t do. ​The method of principled negotiation is hard on the merits, soft on the people.​​

• Soft Negotiation​

The soft negotiator wants to avoid personal conflict and so makes concessions readily in order to reach agreement.​

• Hard negotiation​

The hard negotiator sees any situation as a contest of wills in which the side that takes the more extreme positions and holds out longer fares better. He wants to win; yet he often ends up producing an equally hard response which exhausts him and his resources and harms his relationship with the other side.​

Types of Negotiation

Types

• Feet to the Fire​
• Recess​
• Apology​
• Multiple Simultaneous Proposals​
• Keep Talking​
• Humanize​
• Appropriate Humor​
• Horse Trade​
• Structured Negotiations​

• Take it or leave it​
• Bluffing​
• Good Cop/Bad Cop​
• Limited Authority​
• One More Thing​
• Start Easy, Build Momentum​
• Splitting the Difference​
• Tit-for-Tat​
• Silence​

Negotiation Tactics

TACTICS

DISPUTE RESOLUTION

• Methods other than litigation have been used for resolving disputes (indigenous mechanisms)​
• Alternative Dispute Resolution movement came out in the 1970s ​
• Negotiation has been the most popular method of ADR​

History of Dispute Resolution

Summary

• Alternative dispute resolution (ADR)​

Negotiation ​Conciliation​Mediation​Expert determination​Arbitration​Online dispute resolution​

• Litigation (Court procedures/system)​

Types of Dispute Resolution

Types

IMPORTANCE OF NEGOTIATING A DISPUTE RESOLUTION CLAUSE​

negotiating ADR

• Negotiation provides parties with the opportunity to design an agreement that reflects their mutual interests. And Parties tailor the clause as per their needs​
• Prevents parties from wasting time and resources to discuss any matter relating to resolving their disputes when such issues arise. Sometimes a party’s problems may be attributed to its failure to give adequate attention to the provisions concerning disputes resolution​
• Effectively negotiating the dispute resolution clause ensures certainty and predictability of the process and aids the parties to carry out a comprehensive risk assessment for the transaction properly​
• If negotiated in good faith, this clause may preserve and even enhance the relationship between the parties​

• It’s easier to enforce​
• Binding process​
• Saves time and costs​
• Autonomy​
• Neutrality of the tribunal​
• Confidentiality (if agreed it must be included in the clause)​
• Industry expertise​
• Finality of the decision (No need to appeal)​

ARBITRATION AS ONE OF THE MOST POPULAR TYPE OF DISPUTE RESOLUTION (CHARACTERISTICS)​ ​

Arbitration

FACTORS TO CONSIDER IN NEGOTIATING THE ARBITRATION CLAUSE​ ​

factors

• Negotiation/Mediation before arbitration ​
• Governing laws of the agreement and arbitration clause​
• Language of the agreement and the arbitration proceeding​
• Choice of forum/seat​
• Confidentiality​

• Most popular institutions/benches for arbitration ​

Examples of Commercial seats ​

• International Chamber of Commerce (ICC)​
• The London Court of International Arbitration (LCIA)​
• Singapore International Arbitration Centre (SIAC)​

Example of Investment arbitration seats (ICSID)​

• International Centre for Settlement of Investment Disputes ​

• Ad hoc arbitration (under UNCITRAL Rules) vs Institutional arbitration​

COMPARISION

Preferred Seats of Arbitration

seats

CONVENTIONS

1958

1927

1923

New York Agreement

Geneva Convention

Geneva Protocol

landmark

1961

Geneva Convention

1971

1965

1961

Moscow Convention

ICSID Convention

Paris Agreement

1975

Panama Convention

2006

2002

1976

Uncitral Recommendation

Model Law

Uncitral Rule

FACTS

CONSEQUENCE

CLAUSE

FINDINGS

BACKGROUND

PENALTY

PROCESS AND INDUSTRIAL DEVELOPMENTS LTD -V- NIGERIA [2010] EWHC 2241​ ​

case law

Clause 20 of the GSPA provided, in part, that the GSPA was to be governed by Nigerian law, any dispute was to be referred to arbitration and the venue of the arbitration ‘shall be’ London, England or otherwise as agreed by the parties.​Consequence: Difficulty in the implementation (misinterpretation) of the clause, which demonstrates the equivocation in its drafting. ​

PROCESS AND INDUSTRIAL DEVELOPMENTS LTD -V- NIGERIA [2010] EWHC 2241​

cLAUSE

"You can not negotiate with people who says whats mine is mine & whats yours is negotiable"-Hooters Case

The employee and Hooters each were to select an arbitrator, and the two so selected were to pick the third arbitrator, but all three had to be chosen from a list created by Hooters, which had exclusive and unrestricted control over who was on the list.​Nothing in the arbitration clause or the Hooters’ rules required the arbitrators to be impartial or independent of Hooters.​The employee was required to file with her claim a list of all fact witnesses, specifying the facts known to each, but Hooters was not required to file any notice of its defenses.​Hooters was permitted to move for summary disposition, but the employee was not.​Hooters could amend its position, but the employee could not.​Hooters could record the hearing, but the employee could not.​Hooters could modify the arbitration rules at will and without notice to the employee.​Hooters, but not the employee, had the option to cancel the agreement to arbitrate.​

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Hooters case

Employee

Hooters Chain

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ANALYSIS???​

• Was this agreement fairly negotiated? ​

• What type of negotiation was (likely) used? Hard negotiation​

• Which tactic was (likely) used? Take it or leave it​

• Type of sin: Overreaching​

HOOTERS CASE ANALYSIS

WHAT TO AVOID IN NEGOTIATING AND DRAFTING ARBITRATION CLAUSE?​

Over-Specificity​This is the opposite of the omission. Rather than providing insufficient detail, the drafter provides too much.​ Unrealistic Expectations​ This type of clause has the same goal as over-specification. Too tight clause – can cripple the process it even started. Litigation Envy​ Arbitration to follow courts rules.​ Overreaching​ Drafting arbitration clause in one party favor. Example: Hooters chain of restaurants case​

Equivocation​The essence of this sin is the failure to state clearly that the parties have agreed to binding arbitration. ​ Inattention​ This situation explains the fact that the dispute resolution/arbitration is most often relegated to the last stage of a negotiation. As a result, parties don’t pay real attention to the clause.​ Omission​ A drafter who omits a crucial (or even a useful) element from an arbitration clause commits the sin of omission. This can result in a clause that expresses an agreement to arbitrate but fails to provide guidance as to how or where to do so.​

Deadly sins

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CONCLUSION

BIBLIOGRAPHY

Daniel D. Bradlow, NEGOTIATING BUSINESS TRANSACTIONS: An Extended Simulation Course​Hooters of America, Inc. v. Phillips, 39 F. Supp. 2d 582 (D.S.C. 1998) https://law.justia.com/cases/federal/district-courts/FSupp2/39/582/2286860/ ​ JOHN M. TOWNSEND, DRAFTING ARBITRATION CLAUSES Avoiding the 7 Deadly Sins​ Kester Oyibo, International Oil and Gas Contracts: Negotiating The “Midnight Clause” , ​ Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating an agreement without giving in​ William F. Fox, International Commercial Agreements: A Primer on Drafting and Resolving Dispute, 4th ed, 2009​ Process and Industrial Developments Ltd -v- Nigeria [2019] EWHC 2241 (Comm) (access 14 March 2022) https://www.hilldickinson.com/insights/articles/process-and-industrial-developments-ltd-v-nigeria-2019-ewhc-2241-comm ​https://www.whitecase.com/sites/default/files/2021-04/qmul-international-arbitration-survey-2021-chart7.pdf

WHY FIGHT WHEN YOU CAN NEGOTIATE!