The CADRE Interviews: Must See TV

jimgerl@gmail.com (Jim Gerl) — Wed, 21 Mar 2012 20:03:55 GMT

Bottom view of VHS videotape cassette with magnetic tape exposed (Photo credit: Wikipedia)

Occasionally being famous is not good, but this is not one of those stories...

I am almost famous yet again. Seriously though, I was recently honored by CADRE, the OSEP funded national technical assistance center that specializes in dispute resolution in special education. CADRE's most recent project is "voices from the field." CADRE interviewed ten experts in special education dispute resolution as well as representatives from its four exemplar states and recorded the interviews. I was lucky enough to be among those interviewed.

You can see the videos of the interviews, including mine, here. There is a wealth of information about this field on the videos. I recommend them highly. But remember, the CADRE staff are not plastic surgeons; the video of me pretty much looks like me, so take all appropriate cautions when viewing!

Seriously, though, CADRE is a fantastic organization and if you work in the special education dispute resolution field, you should be familiar with the wealth of resources on their website. There is a permanent link to the CADRE website on the left hand side of the blog. You can also find it here. Check out these user friendly resources.

Thank you CADRE for another useful tool.

Dispute Resolution of Aviation Accidents-By Reference to the Air France Crash

Tue, 20 Mar 2012 06:38:10 GMT

By Guan Feng King & Wood Mallesons' Dispute Resolution Group, Shanghai Office

I. Introduction

Dispute resolution proceedings involving aviation accidents are far more complicated than general dispute resolution proceedings because complicated relationships between numerous parties should be considered. Due to their complex nature, the successful resolution of disputes involving aviation accidents requires meticulous long-term efforts. Using a recent Air France crash as a guide, this article will discuss the nature of dispute resolution proceedings in aviation accidents from the perspective of subjects that may be held liable for the accident.

I. Background of Air France Crash

On May 31 2009, Air France flight AF447 was on a scheduled international flight from Galeão International Airport in Rio de Janeiro, Brazil to Charles de Gaulle Airport in Paris, France. The aircraft lost contact with the air traffic control center during the flight. Since June 6, 2009, the French and Brazilian navies have slowly recovered the bodies of victims and wreckage from the crash. Authorities have confirmed that 12 crew members and 216 passengers from more than 10 countries, including 9 Chinese citizens, all died in this crash. Shortly after the accident, an investigation team led by Air France’s Accident Investigation Bureau initiated an investigation. Meanwhile, Air France and its insurer started collecting information about the victims and their families, making advance payments, and initiating settlement negotiations. By the end of the first half of 2011, Air France had reached settlement agreements with most families of the victims. As part of these settlement agreements, families of the victims agreed to waive all rights, actions and remedies against Air France or any other person or entity that may be held liable for the accident. The investigation of the Air France crash, body identification and the return of personal belongings have not yet been completed. In addition, there are still many disputes arising out of Air France crash that have not yet been resolved.

As a high-profile and complex international aviation accident, the Air France Crash fully reflects the complexity of dispute resolution in aviation accidents. For brevity and clarity, this article will discuss the dispute resolution of aviation accidents from the perspective of subjects who may be held liable for the aviation accident such as the airlines (“Potentially Liable Parties in Aviation Accidents”).

II. Legal Risks Faced by Potentially Liable Parties in Aviation Accidents

In summary, Potentially Liable Parties in Aviation Accidents will face two kinds of legal risks: (1) administrative legal risks, which mainly refer to administrative punishments or orders from competent authorities; and (2) risks of civil liability, which mainly refer to physical injury or product liability claims raised by the families of victims against liable subjects, or recovery actions by airline companies, who have assumed compensation liability in advance, against the other liable parties of the aviation accident.

As can be seen from the dispute resolution of the Air France crash, government authorities and airlines act cautiously during the crash investigation. Cautious action means that determinations of liability and judgments for compensation for the aforementioned administrative and civil lawsuits are not rushed and not urgent risks to the liable subjects. However, the sluggish pace at which these proceedings advance is difficult for the families of the victims, who often urgently need compensation. Therefore, some of the urgent risks facing parties seeking compensation in aviation accidents are discussed in the following paragraphs:

A. Families of the victims seek higher compensation through various legal actions because liability limitation provisions in the relevant laws rarely meet their expectations.

The compensation standard of international air carriers was first set forth in the Warsaw Convention[1]. Under the provisions of the Warsaw Convention, the liability of international carriers was limited to around 8,300 USD. The Hague Protocol[2] doubled this limit to around 16,600 USD. The 1999 Montreal Convention[3] adopted the use of SDR (Special Drawing Rights) to compensate victims of international carrier accidents. The SDR is created by the International Monetary Fund and the convention provides for a limitation on liability in general cases of 100,000 SDR.

The above compensation standards are only applicable to international aviation accidents. In domestic aviation accidents, compensation standards are mainly provided by local laws and the limitations on compensation in less-developed countries is usually lower than the standards of the conventions described above. Consequently, to obtain higher compensation in lawsuits, lawyers direct families of victims to involve aircraft manufacturers and components suppliers as parties to the lawsuit between the families and the airlines. For example, in the Air France crash, which is an international aviation accident, the families of the victims are seeking to take legal action in the United States by involving American aircraft manufacturers and component suppliers to the lawsuit. By involving these parties, the plaintiffs may be able to circumvent the lower limited liability provisions of less-developed countries. Even if the case never goes to trial, the threat of a higher compensation award in the United States will put the plaintiffs in an advantageous position in settlement negotiations.

B. Due to concerns about the statute of limitations, families of victims usually claim rights to or even file a lawsuit against Potentially Liable Parties in Aviation Accidents as soon as possible instead of waiting for the results of an investigation into the cause of the accident.

Investigation and identification of the causes of an aviation accident is a complex and time-consuming process. For example, it has been more than two years since the Air France Crash, but the final investigation results have not yet come out. However, every country has a statute of limitations for civil actions. If a claimant files a lawsuit after the expiry of the corresponding statute of limitations, the defendant is usually entitled to have the lawsuit dismissed. For instance, Chinese law provides that the statute of limitations for product liability claims is two years. If a claimant files a product liability claim after the limitation expires, the defendant will be able to have the action dismissed by the court. As such, families of victims cannot wait for the result of an investigation before filing suit. Instead, to preserve their right to obtain a judgment, families of victims usually follow the advice of lawyers and initiate a claim or bring a lawsuit against liable subjects as quickly as possible.

C. The participation of professional lawyers in aviation accident disputes advances the civil claim.

Lawyers representing families of victims of international aviation accidents target not only airlines but also other potential liable subjects such as aircraft manufacturers. Furthermore, to further the interests of their clients, experienced lawyers find a nexus between the accident and courts located in several countries and choose the most advantageous jurisdiction in which to bring or threaten to bring a lawsuit. By choosing the most advantageous jurisdiction, subjects with potential liability such as aircraft manufacturers are inclined to reach a settlement to avoid higher compensation and to preserve their reputation, even if the investigation into the accident’s cause is still pending.

III. Notes for Potentially Liable Parties in Aviation Accidents

Due to various legal strategies available to families of victims of aviation accidents, subjects with potential liability in these accidents should not only carry out their legal obligations, but should also take notice of the following points during the course of dispute resolution:

A. Confirm the identity, nationality, income situation and other information of the victims as soon as possible, and assess potential compensation range based on such information;

B. Arrange internal information collection as soon as possible, including contracts of sale of the aircraft or components, documents relating to performance of contract, and correspondence with any relevant parties after the accident;

C. Carry out internal investigation on the cause of the accident to figure out the potential liability as soon as possible. Parties facing potential liability should keep low-key and avoid arousing suspicion when following the official investigation in order to ensure the neutrality of the conclusion on the cause of the accident issued by the competent authority and make sure that the important evidence would not be challenged in the relevant legal proceedings;

D. Verify whether the aircraft at issue is covered by product liability insurance or other insurance policy, and whether the main component suppliers have purchased the relevant insurance. If there are relevant insurance policies, the insurance companies should be notified as soon as possible. When handling the claims, keep in close touch with insurance companies and other liable subjects, and negotiate on the issue of compensation;

E. Generally, it’s better to settle with the families of victims as soon as possible. Early settlement is advantageous as the possible range of compensation may be extended by families through other legal actions. At the same time, the liable subjects should show compassion and a humanitarian spirit by actively fulfilling obligations of assistance to the families of victims and completing remedial measures in a timely manner;

F. Keep necessary contact with third party authorities (such as the government or the embassy) to seek better solutions if possible;

G. Actively manage the relationship with the media and the public, appropriately express concerns with the cause of the accident, aircraft quality and safety issues to reduce negative effects of the aviation accident on the social image of the enterprise. Meanwhile, pay attention to external statements in case of any misunderstanding or exaggeration.

H. Treat claims letters, litigation documents from other countries and mail from domestic law firms cautiously. Where the victim’s information is unknown, do not randomly sign for receipt of any international courier packages of unknown origin or couriered documents from domestic law firms; especially do not respond to any legal documents. The response to these files should be decided by an experienced team after careful discussion;

I. Entrust a qualified and reliable local law firm from where the accident occurred. No matter in which country the final actions take place, the investigation of facts and evidence collection of local lawyers are indispensable. Furthermore, a local lawyer has advantages in language and culture when dealing with the claims of the victims’ families;

J. Prepare for the long-term accident investigation, multinational lawsuits as well as settlement negotiation.

?This article was originally written in Chinese, the English version is a translation.?

[1] Convention for the Unification of Certain Rules Relating to International Carriage by Air, formulated on October 12, 1929 in Warsaw, Poland, effective for China since Oct 1958.

[2] Protocol Amending the 1929 Convention for the Unification of Certain Rules Relating to International Carriage by Air, China approved this protocol in 1975.

[3] Signed by the participating states of International Conference on Aviation Law convened in Montreal in May 1999, replaced the Warsaw Convention after coming into effect, and entered into force on July 31, 2005 in China.

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Tue, 20 Mar 2012 02:58:08 GMT

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[i] ??????????????????1929?9?12????????1958?10???????

[ii] ???1929?10?12?????????????????????????????????1975????????

[iii] 1999?5??????????????????????????????????????2005?7?31?????????

CURACAO LAW FIRMS QUALITY RANKINGS 2012

Karel.Frielink@Spigthoff.com (Karel Frielink) — Sun, 18 Mar 2012 11:30:40 GMT

Spigthoff ranked Band 1 International publisher Chambers & Partners published its global ranking of law firms Chambers Global last week. According to Chambers & Partners Dutch Caribbean law firms VanEps Kunneman VanDoorne and Spigthoff Attorneys and Tax Advisers are the leading go-to firms in the Dutch Caribbean. These two firms have the desired Band 1 firms [...]

Spigthoff ranked Band 1

International publisher Chambers & Partners published its global ranking of law firms Chambers Global last week. According to Chambers & Partners Dutch Caribbean law firms VanEps Kunneman VanDoorne and Spigthoff Attorneys and Tax Advisers are the leading go-to firms in the Dutch Caribbean. These two firms have the desired Band 1 firms status. Spigthoff has been promoted to that status from being Band 2 last year.

On Spigthoff Attorneys and Tax Advisers Curacao the publisher writes that the firm is highly valued for its full-service capabilities, which includes the expertise of a number of specialized tax advisers, and a litigation department commended for its assertive style. The firm is also known for its international outlook, with its Amsterdam office serving corporate clients and individuals in the Dutch market. Sources say: “They understand that clients need advice that is not only legally sound, but that works from a business point of view.”

Band 1 attorney Karel Frielink (Spigthoff) is described by clients as “very knowledgeable and incredibly responsive.” Clients say he is “always excellent in securities.”

Band 1 attorney Martijn Welten (Spigthoff) is dubbed by clients as “one of the best commercial lawyers on the island.” He is “very fast and very practical, and his way of thinking is crystal clear. He also presents himself very well in negotiations.”

Karel Frielink

(18 March 2012)

See also the “Antilliaans Dagblad” 19 March 2012

Microblog posts to 3/13/2012 - Part 1: Cases and Commentary

chris.jaglowitz@gmalaw.ca (Chris Jaglowitz) — Tue, 13 Mar 2012 15:26:25 GMT

In the seven weeks since our last microblog posting, there has been a whole bunch of condo-related court decisions and interesting news stories for us to tweet about. Given the large number of items, we’ll break them into two segments.

In this first installment, we will highlight the Court and Tribunal Decisions and also the Commentary and Cool Stuff.

COURT AND TRIBUNAL DECISIONS

An interesting trend emerges from several of the cases mentioned below. Judges appear to be closely scrutinizing the steps taken by condo corporations in enforcement cases and rapping the boards’ knuckles where the enforcement is not conducted reasonably. This is welcome news and is likely in response to the rash of nightmare scenarios in recent months where condo boards or their lawyers over-litigate enforcement cases and use David and Goliath techniques against owners.

Condo boards that choose not to approach rule enforcement cases in a conciliatory manner are doing their owners a disservice and are needlessly risking a reduced costs recovery or, worse, an adverse costs award. One condo board was smacked with a personal costs award against its directors for wilfully breaching a settlement made with unit owners.

A couple practical lessons that immediately come to mind include:

First: Managers should write more letters to owners before rule enforcement cases go to the lawyers and managers should document the efforts they made to attempt to resolve the matter in-house before escalating the enforcement.

Second: Informal meetings, negotiation and mediation should be offered or attempted prior to commencing litigation in almost any enforcement case, and counsel for all parties should be constantly exploring the possibility of settlement throughout the piece.

Here are the cases. Watch for the trends and, above all, enjoy!

ABPC: Vendors responsible for condo special assessment after failing to advise purchaser. http://bit.ly/wtSw7L

ONSC: Condo Act s.134(5) is not an invitation to counsel to aggressively work a file or unreasonably build up costs. http://bit.ly/wtGil9

ONSC: Condo's enforcement of parking rules not oppressive. No vendetta. Unit owner ignored van restrictions. http://bit.ly/A5NWDK

NSSC: Condo loses bid to “negotiate by litigation” over neighbour's refusal to share snow-clearing costs. http://bit.ly/zimwu3

ONSC awards full indemnity costs after condo obtains compliance order. Cash-strapped owners given 4 yrs to pay. http://bit.ly/zfzjfr

BCSC: Realtor negligent in leaky condo purchase, but plaintiffs fail to prove damages (they actually profited). http://bit.ly/yVOaHd

HRTO: No substance to unit owner’s claim that condo bd discriminated by refusing to accept further noise complaints. http://bit.ly/xU1nMt

HRTO: Owners refusing to re-elect a director making human rights complaint vs condo corp is not reprisal by the condo. http://bit.ly/xKvgS0

ONCA quashes unit owners’ appeal from ONSC’s refusal to grant leave to appeal a condo arbitrator’s decision. http://bit.ly/wT1B32

ABCA: Construction lender potentially liable to purchasers, condo corp for faulty design/build. Most claims to proceed. http://bit.ly/zWFClJ

ABQB upholds default judgment vs. condo. Bd completely asleep at the switch in responding to lawsuit served in 2009. http://bit.ly/ybmNWF

ONSC: 6 lawsuits to proceed vs Channel Prop Mgmt, Khan re $17M condo loan fraud. Lender is pursuing victimized condos. http://bit.ly/yIaOlu

ABQB denies condo's costs in pet removal case where pet already removed; condo should have checked before suing. http://bit.ly/yfZdCa

ONSC: Condo directors to pay legal costs personally for acting in bad faith by breaching settlement with unit owners. http://bit.ly/z45g7h

ONSC: Unit owners wrong to alter the common elements, but condo wrong to litigate before talking. http://bit.ly/yL76gO

COMMENTARY AND COOL STUFF

Pretty cool time-lapse photography movie of a Toronto condo being built. http://bit.ly/wXgrJD

Google+ Hangout - The Future of HOA Board Meetings? http://bit.ly/zCHCPY

Being a condo director a big responsibility - Lots to know, but you’ll be in on all the decisions - http://bit.ly/A3hI6f

When it comes to dog rules, grandfather clause offers bite - London Free Press http://bit.ly/xor6pR

Condos should get ahead of the wave. Electric vehicles are coming « wbcondo. http://bit.ly/ytyeqL

Dealing with condo and HOA member apathy – HOA Brief: http://bit.ly/zaaMBp

Beware of the "Service Dog Scam": Florida ROC blog - http://bit.ly/ww04Vg < Not easy to verify true service animals.

Should homeowners' association managers be licensed? http://bit.ly/yDleyV

High-rise condo living that's been brought back down to earth. http://bit.ly/wnUSFU < Update on Tokyo condo trends, post-quake.

Secret ballots are pretty much dead in Texas HOA elections - http://bit.ly/wxVM8E < An answer to a question no one asked?

RT @canetwork: Home Ownership and Second Hand Smoke: the American Dream or a Health Nightmare?

RT @cohoalaw: Don't Elect the Convicted Felon to Your HOA Board. http://bit.ly/A6ImkM < No redemption for ex-cons when it comes to condo bd.

Love condos and urban fantasy novels? "The Last Condo Board of the Apocalypse" releases today. http://bit.ly/zTApa2

REGULATORY LEGISLATION IN CURACAO

Karel.Frielink@Spigthoff.com (Karel Frielink) — Mon, 12 Mar 2012 17:33:44 GMT

General requirements on the business operation Regulatory legislation in Curacao does not distinguish between different kinds of products, such as for instance hedge funds, but is of a more general nature. The regulatory legislation of Curacao applicable to financial institutions is divided into four categories being: credit institutions, institutional investors, investment institutions & administrators and trust [...]

General requirements on the business operation

Regulatory legislation in Curacao does not distinguish between different kinds of products, such as for instance hedge funds, but is of a more general nature. The regulatory legislation of Curacao applicable to financial institutions is divided into four categories being: credit institutions, institutional investors, investment institutions & administrators and trust service providers.

The authority entrusted with the supervision on the financial institutions mentioned above is the Central Bank of Curacao and Sint Maarten.

The regulatory legislation does provide for general requirements on the business operation of the financial institutes involved. The National Ordinance on the Supervision of Investment Institutions and Administators (Landsverordening regelende het toezicht op beleggingsinstellingen en administrateurs; “NOSIIA”) for instance provides for a regime of supervision for investment institutions and administrators with the objective of an adequate operation of the financial markets and the protection of investors in such markets.

With regard to the business operation of a local fund that operates within the scope of the NOSIIA it provides for requirements applicable to the organizational and legal structure as expressed in the fund’s constitutive documents. Such requirements address the conditions of management of the fund and safekeeping of the fund’s assets.

Karel Frielink
Attorney (Lawyer) / Partner

(12 March 2012)

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Mon, 12 Mar 2012 08:38:52 GMT

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US DOE Press Release: Moving from Compliance to Results

jimgerl@gmail.com (Jim Gerl) — Mon, 05 Mar 2012 18:55:07 GMT

Image by Getty Images via @daylife

In a press release issued last Friday, the Secretary of United States Department of Education announced that the focus of the department will shift from a compliance driven approach to a results oriented approach. Secretary Duncan said. ""For too long we've been a compliance-driven bureaucracy when it comes to educating students with disabilities. We have to expect the very best from our students—and tell the truth about student performance—so that we can give all students the supports and services they need. The best way to do that is by focusing on results,"

You can read the entire press release here.

Maybe it is the nature of my work and all that legal training and experience, but I always get nervous when the emphasis on compliance gets reduced. That scares me.

Does this mean that the Department will be targeting the achievement gap between student with disabilities and their non-disabled peers? Will the Rowley standard need to be changed? Am I putting too much meaning into a bureaucratic press release? I'm not sure, but this may be a very interesting time to be in the special education law business! Stay tuned.

Mediating; Favorite Road Name; Tech Update

jimgerl@gmail.com (Jim Gerl) — Fri, 02 Mar 2012 22:54:03 GMT

I realized again this week that mediation is the best way to resolve special education disputes. It helps the live the various options to see what might work and what may not work...

In route to the action, I passed my favorite road name in the world, or what I've seen of it so far. If you have a better street or road name, snap a photo and send it to us. As of right now mine is the winner. See photo above. But remember as always, this is an exhibition not a wager.

By the way some people have asked about the various groups. The LinkedIn Special Education Law Group is the biggest and most active with over 2,000 members. The Facebook Special Education Law Group was also quite large, but the most evil corporate moguls at Facebook archived the group despite my protest. Now members have to rejoin to still be members. Why??? More information on the groups may be found by following the links on the lefthand side of the blog.

Subscriptions are still the best way to make sure that you receive our posts. They are free and come to your email inbox or to your aggregator, like NetVibes or Google Reader, etc. You can even get a blidget (=blog+widget) to insert into your own website or blog. Please subscribe; numbers matter in the blogosphere.

Also, please vote for this blog for a Bammy Award. We have been nominated and hope to win an award. Follow the link on the button on the lefthand side iof the blog or vote here.

CURACAO TRUST LEGISLATION

Karel.Frielink@Spigthoff.com (Karel Frielink) — Wed, 29 Feb 2012 04:00:12 GMT

Entered into force on 1 January 2012 On January 1st 2012, new legalization entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in Curacao. This trust is a legal exception to the paritas creditorum rule as we know it and serves [...]

Entered into force on 1 January 2012

On January 1st 2012, new legalization entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in Curacao. This trust is a legal exception to the paritas creditorum rule as we know it and serves as an important instrument which could be used for asset segregation purposes.

With the introduction of the Curacao Trust and the new paragraph 3 to section 231 of Book 3 of the Curacao Civil Code the need for a parallel debt construction in the event that Curacao law security interests are granted as part of a syndicated loan has been abolished, which makes the Curacao trust very interesting for financing and security purposes. The possibilities created pursuant to the new legislation in Curacao for collective security arrangements are to date not available in the Netherlands.

Karel Frielink
Attorney (Lawyer) / Partner

(29 February 2012)

An Overview On Doing Business In China.

dan@harrismoure.com (Dan Harris) — Sat, 25 Feb 2012 19:48:25 GMT

The Legal Insight Blog has a long and comprehensive post, entitled, “Overview of Doing Business in China.” And that is exactly what it is. Written by King & Wood, one of China’s leading law firms, the post sets out the basics of China’s systems as they relate to business and it does so very clearly... Continue Reading

The post is broken out into the following sections:

Governmental Structure
Legal System
Establishing a Business Vehicle in China
Operating in China

It really does provide only the most cursury information, but it does a great job of doing so and it can serve as a great first source for you. Just by way of example, I pull the following from it on dispute resolution in China:

4.9 Dispute Resolution

As an increasing number of foreign investors penetrate the Chinese market, commercial disputes are expanding quickly both in number and in scale. China has made significant progress in increasing the integrity and reliability of its courts. The formal processes available for resolving such disputes in China have, in recent years, become increasingly similar to those elsewhere in the world.

If a dispute cannot be settled through negotiation between the parties, the case must be submitted for litigation or arbitration. Under PRC law, it is permitted for the parties to choose for binding arbitration to resolve their disputes and the courts will generally enforce arbitration judgment without inquiry into the merits. It is worthy noting that arbitration is only possible if the parties expressly agree to arbitrate. In practice, the arbitration is favored by many foreign investors in China.

(a) Litigation

The PRC courts consist of four (4) layers: the People’s Court (at the district or county level), the Intermediate People’s Courts (at the municipal level), the High People’s Courts (at provincial level), and the Supreme People’s Court (at the national level). The level of the competent court should be generally subject to the nature and size of the disputes. In most cases, disputes with a foreign connection may be initially in the Intermediate People’s Courts.

Court judgments may be appealed once, but the judgment of the second instance is final and binding upon the parties immediately. Under the PRC Contract Law, it is permitted to select a foreign law to govern the contract with a foreign connection and to provide for exclusive jurisdiction in foreign courts. In fact, it may be difficult for Chinese courts to enforce a judgment made by a foreign court, but Hong Kong’s judgments are exceptions.

(b) Arbitration

In comparison to litigation, the arbitration seems much quicker, more efficient and more reliable, thus major foreign investors would like to include an exclusive arbitration clause in their contracts.

Under PRC law, an express clause clearly indicating the parties’ selection of binding arbitration is enforceable, which should be in writing and contain a clear statement of the parties’ intention to submit the dispute to arbitration, the scope of disputes subject to arbitration, and the specific arbitral commission to resolve the dispute. In addition, it is possible for the parties to reach an arbitration agreement after a dispute arises, but in most cases an arbitration clause is included from the outset in the operative contracts.

The China International Economic and Trade Arbitration Commission (the “CIETAC“) is one of the most frequently selected arbitration forums when the arbitration will be held within the PRC. Foreign investors sometimes do not agree to arbitration in PRC, including arbitration at CIETAC, because they believe that Chinese parties will have a home advantage, meanwhile, Chinese parties concomitantly often object to arbitration aboard. Therefore, Hong Kong seems as acceptable compromise to both parties. Of course, to select a third country’s jurisdiction for arbitration is also common in practice. Since China is a party to the United Nations Convention of Recognition and Enforcement of Foreign Arbitral Awards, it is generally possible to obtain the enforcement of an arbitration award issued by a panel in any member country.

I encourage anyone new to doing business in or with China to check it out.

New Year, New Rules for ICC Arbitration including Comparison of ICC, SIAC and HKIAC

Fri, 17 Feb 2012 08:41:40 GMT

By Meg Utterback and Linda Davinson King & Wood's Dispute Resolution Group

On January 1, 2012, the new International Chamber of Commerce (ICC) Arbitration rules (the "new ICC rules") came into effect (the last major revision of the ICC rules occurred in 1998). As international arbitration continues to grow in popularity with the rise of cross-border commercial disputes, the international dispute resolution centers have been keen on competitively addressing the new business needs of our global marketplace. The rules of various institutions over the last decade have become increasingly sophisticated, blending common and civil law systems to give rise to non-country specific forums to resolve international disputes.

In summary, for arbitration under the auspices of the ICC, the revised rules now provide for 1) interim or emergency relief; 2) joinder of multiple parties, claims and contracts; as well as 3) additional case management controls to improve cost and efficiency. The substance of the ICC rules remains largely the same with the aforementioned features intended to improve arbitrating increasingly complex transnational disputes.

Emergency Arbitrator: One of the more significant additions to the new ICC rules is the provision for "Emergency Measures" pursuant to Article 29 and Appendix V. Parties to a contract can now seek emergency relief prior to the constitution of an arbitral tribunal. Any emergency measures granted will take the form of an "order." Note that the emergency rule will not apply to arbitration agreements concluded prior to January 1, 2012. Moreover, parties may opt out or agree to other pre-arbitral relief procedures. To prevent delay, be sure to submit any emergency application in the correct language pursuant to the rules.

Joinder of Multiple Parties/Claims/Contracts & Consolidation: Modernizing the rules to address the increasingly complex cross-border disputes, the new ICC rules now expressly provide for joinder and consolidation. Multiple pending arbitrations under the ICC rules may now be consolidated in any of the three scenarios set out in Article 10. Parties and claims may now be joined pursuant to Articles 7 through 9. Pay attention to timing requirements for joinder, as no additional party may be joined after the confirmation or appointment of an arbitrator, unless the parties and the additional party agree otherwise.

Better Case Management: It is readily apparent the new rules aim to improve speediness, efficiency and cost. Several enhanced or added provisions reflect this. Article 6 now clarifies that arbitration shall proceed in the face of any pleas on jurisdiction and the arbitral tribunal will directly decide on the issue(s). A case management conference is now mandatory at around the time of the Terms of Reference. Further, the new rules reflect the duty of both the parties and arbitrators to be expeditious throughout the entire procedure including the addition of Appendix IV, which lists case management techniques to control time and costs.

Quick Comparison of Arbitration Rules

The below table is a basic summary comparison of arbitration rules under the auspices of the ICC (International Chamber of Commerce), SIAC (Singapore International Arbitration Centre) and HKIAC (Hong Kong International Arbitration Centre). Refer to the actual rules for accuracy and any changes or modifications.

	ICC (January 1, 2012)	SIAC (July 1, 2010)	HKIAC (Sept. 1, 2008)
Initiating Arbitration	Submit "Request for Arbitration" to Secretariat, with requisite information, copies, and payment of filing fee (Article 4)	File "Notice of Arbitration" with Registrar with requisite information, copies and payment of filing fee (Article 3)	Submit "Notice of Arbitration" to Secretariat with requisite information, copies and payment of registration fee (Article 4)
Time to Respond	"Answer" due within 30 days of receipt of the "Request" from the Secretariat (Article 5)	"Response" due within 14 days of the "Notice of Arbitration" (Article 4)	"Answer" due within 30 days of receipt of "Notice of Arbitration" (Article 5)
Joinder of Additional Parties, Claims	*New – Yes, joinder of parties and claims (Article 7-9). Also consolidation of arbitrations (Article 10)	Yes, joinder of party only if party to arbitration agreement and consent (Article 24b)	Yes, joinder of party if mutual consent in writing (Article 14)
Number of Arbitrators	1 or 3 agreed by the parties, otherwise court to appoint (Article 12)	1 arbitrator unless parties have agreed otherwise or 3 if complex (Article 6)	1 or 3 if not agreed by the parties (Article 6)
Seat of Arb & Language	Place of arbitration fixed by court unless agreed by parties; Language by parties or the arbitral tribunal (Article 18; 20)	Seat of arbitration agreed by parties otherwise default Singapore; Language by arbitral tribunal unless parties have agreed (Article 18; 19)	Seat of arbitration is Hong Kong unless parties agree otherwise; Language determined by tribunal subject to agreement by parties (Article 15; 16)
Hearings	*New – Mandatory case management conference (Article 24)	Not mandatory	Not mandatory
Emergency or Interim Relief	*New – Yes (Article 28-29)	Yes (Article 26 and Schedule 1)	Yes (Article 24)
Time Limit For Final Award	Six months (Article 30)	Total time limit not specified. Option for Expedited Procedure (Article 5)	Expedited procedure option with six-month time limit for claims not over $250,000USD. (Article 38)

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Fri, 17 Feb 2012 06:41:23 GMT

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???????/????/???????????????????????????????????????ICC?????????????????????????????????????????10????3???????????????????????????7???9?????????????????????????????????????????????????????????????????????????

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South Carolina Couples and Minimizing Money Fights

stevens@stevensfirm.com (J. Benjamin Stevens) — Thu, 16 Feb 2012 22:45:36 GMT

Nothing is harder on marriages than arguing over money. Numerous studies also indicate money problems as the leading cause for divorce. One study, by Jeffrey Dew at Utah State University, attempts to quantify just how bad the problem is. His finding: Couples who reported disagreeing about finance once a week were over 30 percent more... Continue Reading

Based on a study by SmartMoney Magazine, the following is a list of the issues most likely to spark a money fight:

Merging Money :: Should couples combine assets into one shared pool or do they instead keep separate accounts and split household expenses? It’s a complicated issue and requires lots of communication to make sure everyone is on the same page. Take your time, merging money does not have to happen overnight.
Dealing With Debt :: Couples where one partner comes in with a massive debt burden can make them feel like they’re dragging the debt-free mate down. Debt should not be sued as a scorecard in relationships and should never be held over the head of a spouse. Solving debt issues as a team not only strengthens the relationship, but helps reduce the debt more quickly.
Managing Spending :: In many relationships, one gets labeled the “saver” and the other gets labeled the “spender.” This isn’t always the case however and the real problem boils down to spouses not communicating about how and what they spend money on. A budget goes a long way toward fixing the issue and keeps both people honest.
Investing Wisely :: Men are far likely to make risky investments while women worry about their financial safety. Couples should try and come together to clarify their mutual goals, lay out a long-term plan and work together to craft a path of getting there.
Keeping Money Secrets :: If couples understood that lying about even insignificant things, like how many movies you downloaded on your iPad, would lead to a less authentic, open relationship with their spouse they likely would be more mindful of telling little white lies. Each partner must keep in mind that most relationships aren’t destroyed by one dramatic act, but a series of small, even inconsequential, acts that chip away at your foundation of love and trust.
Emergency Planning :: Just like couples vary on the degree of risk they are willing to take, they also vary on the level of reserves they need to feel safe. They key here is to find the commonality; both spouses usually agree that some amount of savings is required, so work to find a number acceptable to you both.

The key to a loving and financially stable relationship is communication. Taking the time to talk about money concerns and financial goals can be a great investment for a couple’s joint financial future.

If you find yourself in a relationship where communication has broken down and you’re worried about your financial future, you need the help of an experienced South Carolina family law attorney to guide you through the thorny process.

Source: “Couples and Money Arguments,” by Mindy Crary, published at Forbes.com.

See Our Related Blog Posts:

South Carolina Couples and Minimizing Money Fights

stevens@stevensfirm.com (J. Benjamin Stevens) — Thu, 16 Feb 2012 13:00:27 GMT

Based on a study by SmartMoney Magazine, the following is a list of the issues most likely to spark a money fight:

Merging Money :: Should couples combine assets into one shared pool or do they instead keep separate accounts and split household expenses? It’s a complicated issue and requires lots of communication to make sure everyone is on the same page. Take your time, merging money does not have to happen overnight.
Dealing With Debt :: Couples where one partner comes in with a massive debt burden can make them feel like they’re dragging the debt-free mate down. Debt should not be sued as a scorecard in relationships and should never be held over the head of a spouse. Solving debt issues as a team not only strengthens the relationship, but helps reduce the debt more quickly.
Managing Spending :: In many relationships, one gets labeled the “saver” and the other gets labeled the “spender.” This isn’t always the case however and the real problem boils down to spouses not communicating about how and what they spend money on. A budget goes a long way toward fixing the issue and keeps both people honest.
Investing Wisely :: Men are far likely to make risky investments while women worry about their financial safety. Couples should try and come together to clarify their mutual goals, lay out a long-term plan and work together to craft a path of getting there.
Keeping Money Secrets :: If couples understood that lying about even insignificant things, like how many movies you downloaded on your iPad, would lead to a less authentic, open relationship with their spouse they likely would be more mindful of telling little white lies. Each partner must keep in mind that most relationships aren’t destroyed by one dramatic act, but a series of small, even inconsequential, acts that chip away at your foundation of love and trust.
Emergency Planning :: Just like couples vary on the degree of risk they are willing to take, they also vary on the level of reserves they need to feel safe. They key here is to find the commonality; both spouses usually agree that some amount of savings is required, so work to find a number acceptable to you both.

The key to a loving and financially stable relationship is communication. Taking the time to talk about money concerns and financial goals can be a great investment for a couple's joint financial future.

Source: “Couples and Money Arguments,” by Mindy Crary, published at Forbes.com.

See Our Related Blog Posts:

The Challenges of Co-Parenting in South Carolina

stevens@stevensfirm.com (J. Benjamin Stevens) — Thu, 09 Feb 2012 13:00:35 GMT

A recent advice column by Ann Nagley in the Midland Daily News discusses the challenge of raising happy children while in the midst of a contentious divorce. Nagley has developed a special understanding of the issues facing divorced parents as an intake coordinator with Family and Children’s Services in Midland, Michigan.

Parents have to adjust to a new role as co-parents while dealing with the pain of a dissolving marriage. The way children deal with divorce has much to do with the amount of conflict they witness their parents enduring. The following are tips on how to reduce the stress of co-parenting and protect the kids along the way:

Focus on the child: Your child should be free to continue loving both parents. Just because the person hurt you doesn’t mean they are a bad parent. The relationship your child has with both their parents affects their future relationships. By saying hurtful things about the other parent or limiting time together you can cause your child to become distant from that parent. Children need to be left out of the conflict between you and your spouse and enjoy time separately with both parents.

Take time for yourself: Divorce affects both spouses, the one leaving and the one getting left. Many people feel a mixture of sadness, anger, hurt and worry as a result. The emotional roller coaster can negatively impact not only you mental but physical health and, as a result, taking time to be alone and work through your thoughts is important. Having friends and family members for support can help you both as a person and as a parent.

Have co-parenting meetings: When you both feel ready, a meeting between both parents can be held to discuss issues about your child. These meetings help your child deal with change and help keep consistency between the different houses. Meetings should be brief and focus on simple, positive things involving your child. These meetings should ideally be conducted over the phone rather than risk an eruption with an in person meeting. Topics to be addressed include schedule changes, upcoming special activities, academics and behavior problem. If you simply cannot interact alone with your ex, consider using a mediator for these occasional brief chats.

Co-parenting lasts a lifetime, and while it might not be enjoyable you should do your children a favor and get used to it now.

If you find yourself in the midst of a custody fight, you need the help of an experienced South Carolina family law attorney to help you through the complex process.

Source: “Parenting together after divorce,” by Ann Nagley, published at OurMidland.com.

See Our Related Blog Posts:

INQUIRY PROCEDURE INTRODUCED IN CURACAO

Karel.Frielink@Spigthoff.com (Karel Frielink) — Fri, 27 Jan 2012 19:59:04 GMT

The Joint Court is the forum of choice for corporate disputes As per January 1, 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into force. The new legislation introduces a so-called inquiry procedure for, amongst others, limited liability companies. The inquiry procedure (a.k.a. investigation proceedings) can result in a court ordered investigation [...]

The Joint Court is the forum of choice for corporate disputes

As per January 1, 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into force. The new legislation introduces a so-called inquiry procedure for, amongst others, limited liability companies. The inquiry procedure (a.k.a. investigation proceedings) can result in a court ordered investigation into the affairs of a corporation.

Shareholders of such a corporation (i.e. an NV or BV) may file a petition with the Joint Court of Justice of Aruba, Curacao and St. Maarten, and of Bonaire, St. Eustatius and Saba (the ‘Joint Court’). Pursuant to Article 2:272 of the Corporate Code, the authority to initiate an investigation into the policy and affairs of a limited liability company is held (amongst others) by one or more share holders who represent at least ten percent of the company’s equity, or who may cast at least ten percent of the votes with respect to all matters. Also authorized to file such a petition are (a) the public prosecutor, in the general interest of, or upon the request of, an interested party, provided the request is based on urgent grounds; (b) the trustee in bankruptcy and (c) any person to whom this authority has been granted by the articles of corporation or in an agreement with the corporation.

The Joint Court can order an investigation into the affairs of the corporation (‘enquête’) if there are justified reasons to doubt the soundness or correctness of the corporation’s policies, and may take provisional measures as well, for example, the temporary transfer of (certain) shares to a nominee or the suspension of board members. Examples of justified reasons include allegations of violations of law, irregularities, conflicts of interest, deadlocks at board or shareholder level, disputes between board members and/or shareholders, and insufficient provision of information to shareholders.

If the Joint Court grants the request it will appoint one or more investigators who are authorized to access the corporation’s administration, books and premises. Current and former managing and supervisory directors as well as shareholders and employees are legally required to co-operate fully with the investigation (Article 2:277 of the Corporate Code of Curacao). The court appointed investigators will present their findings in a report submitted to the Joint Court.

If the Joint Court, upon request and based on the report, establishes a case of corporate misuse, it can, once again if so requested, order measures (most of them of a permanent nature), such as nullifying (board or shareholder) resolutions, suspending or dismissing board members, or the dissolution or division (either a split-up or a split-off) of the corporation (Articles 2:282 and 2:283 of the Corporate Code).

In the years to come the Joint Court will deal with many corporate governance issues and will play an important role in the resolution of various disputes concerning corporations. The Joint Court will become the forum of choice for litigating shareholders’ disputes, mismanagement matters, disputes between (managing and supervisory) directors and contests for corporate control. Hopefully, Aruba, St. Maarten and the BES Islands will introduce similar legislation soon.

Karel Frielink
Attorney (Lawyer) / Partner

(27 January 2012)
.

APPELLATE PROCEEDINGS IN THE DUTCH CARIBBEAN

Karel.Frielink@Spigthoff.com (Karel Frielink) — Wed, 21 Dec 2011 04:00:19 GMT

Full review of the case Appellate proceedings in the Dutch Caribbean provide for a full review of the appealed decision: the grounds on which the Appellate Court can reverse the original judgment are not, as in certain other jurisdictions, limited to procedural matters. It is furthermore permissible to introduce new documentary evidence in the course of [...]

Full review of the case

Appellate proceedings in the Dutch Caribbean provide for a full review of the appealed decision: the grounds on which the Appellate Court can reverse the original judgment are not, as in certain other jurisdictions, limited to procedural matters. It is furthermore permissible to introduce new documentary evidence in the course of appellate proceedings. If the appealed judgment contains a final decision as regards the dispute the Appellate Court will either confirm the judgment or it will itself render a replacing decision: the case will not be referred back to the Court of First Instance.

Furthermore, the examination of witnesses may be ordered by the Appellate Court at the request of one of the parties if the facts sought to be proven are material to the case. The Appellate Court may also order the examination of witnesses on its own initiative.

Karel Frielink
Attorney (Lawyer) / Partner

(21 December 2011)
.

Mediation vs Hearings: SpEd Dispute Resolution

jimgerl@gmail.com (Jim Gerl) — Fri, 16 Dec 2011 19:49:30 GMT

Image by TomNatt via Flickr

This week I finished a decision from a due process hearing and I conducted a mediation. Dangerous combination. This got me to thinking about dispute resolution under IDEA. I have long contended that mediation is a better way to resolve special education disputes.

A due process is increasingly like a court trial. Very adversary in nature; lots of venom. There is of course plenty of place for venom in our society. (Otherwise we wouldn't really need lawyers would we?) I'm just not sure that the education of a child is one of them. Don't get me wrong, I love doing hearings. I have been doing some type of work as a hearing examiner, hearing officer, administrative law judge as a part of my job since 1979. I train hearing officers, special ed and others; I am a certified hearing official. But this is really not about me, it is about those kiddos with disabilities.

Mediation unlike the adversary hearing offers the possibility of repairing the troubled relationship between parent and school officials. Because education demands cooperation and collaboration between parents and the schools, mediation can really be a good way to go in the long run. I have talked to parents who won a due process hearing, but still felt like they had lost. There is an emotional cost in using the hearing process, and it can be significant.

There are situations that require the hearing process, but from my vantage point, mediation is often a better road.

What do you think?

Government announces radical reform to UK employment laws

rbonino@reedsmith.com (Ruth Bonino) — Wed, 23 Nov 2011 18:08:40 GMT

The Government has today announced what it describes as “the most radical reform to the employment law system for decades”. In a speech to EEF, the UK manufacturers’ organisation, Vince Cable outlined the results of the Government’s recent consultation on Resolving Workplace Disputes and the recent Red Tape Challenge Review of employment law.

The proposals announced by Vince Cable include the following:

Merge, scrap or simplify 70 of the 159 employment regulations examined in the Red Tape Challenge (this includes consolidation of 17 national minimum wage regulations)
Publish calls for evidence on proposals to simplify TUPE and to reduce the minimum consultation period for proposed collective redundancies involving 100 or more employees, from 90 days to 60, 45 or 30 days (see links below to these consultation papers which were issued today and which will close on 31 January 2012)
Publish a call for evidence on simplifying dismissal processes, seeking views on two proposals: whether to introduce compensated no fault dismissals for micro firms with fewer than 10 employees; and how to simplify the existing dismissal process, potentially changing the Acas Code, or to provide supplementary guidance for small businesses.
Remove protection for any whistleblower making a disclosure about the worker’s own contract (to counter the EAT’s decision in Parkins v Sodexho Ltd [2002] IRLR 109
Create a universally portable CRB check that can be viewed by employers instantly online from early 2013
Consult on the introduction of fees for bringing a claim in the Employment Tribunal, seeking views on two options: a system involving an initial fee to lodge a claim and a second fee to take that claim to hearing; or a system involving a £30,000 threshold whereby anyone seeking an award above that figure will pay more to bring a claim
Consult on streamlining the current regulatory regime for the recruitment sector.

In addition, as part of the Government’s response to its consultation to the Resolving Workplace Disputes, the Government has said that it is committed to:

Increasing the qualifying period for unfair dismissal from one to two years from April 2012
Requiring all Employment Tribunal claims to be lodged with Acas and to be offered mediation before going to Tribunal
Modifying the formulae for up-rating Tribunal awards and redundancy payments to save business an estimated £5.4 million (net) a year
Giving Employment Judges discretion to levy a financial penalty, payable to the Exchequer, against employers for breach of employment rights
Consulting on whether employers should be allowed to have “protected conversations” with staff without the existence of a formal dispute and without such conversations capable of being used in evidence in a future Tribunal claim
Consulting on the simplification of compromise agreements, such as doing away with long lists of causes of action. Other proposals include introducing a standard text, amending s.146 Equality Act to provide reassurance that compromise agreements can safely be used to compromise discrimination claims, and renaming them “settlement agreements”
Consulting on developing a “rapid resolution” scheme which will offer a quicker and cheaper alternative to determination of straightforward, low value claims at an Employment Tribunal
Carrying out a review of Employment Tribunal rules, to be led by Mr Justice Underhill, who steps down at the end of this year from his Presidency of the Employment Appeal Tribunal.

Much of the detail of these proposals is yet to be revealed and we now have to wait for a number of consultations to be completed before we know more. It looks like 2012 will be an important year for employment law reform so watch this space!

Please click on the following links for more information:

Government Press Release:

http://nds.coi.gov.uk/content/detail.aspx?ReleaseID=422195&NewsAreaID=2&HUserID=895,779,885,848,782,879,710,705,765,674,677,767,684,762,718,674,708,683,706,718,674&ClientID=-1

Call for evidence on TUPE regulations (closing 31 January 2012)

http://www.bis.gov.uk/Consultations/call-for-evidence-effectiveness-of-current-tupe-regulations?cat=open

Call for evidence on collective redundancies (closing 31 January 2012)

http://www.bis.gov.uk/Consultations/call-for-evidence-collective-redundancy?cat=open

Government Response to Resolving Workplace Disputes

http://www.bis.gov.uk/Consultations/resolving-workplace-disputes?cat=closedwithresponse

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