"DISPUTE RESOLUTION IN THE OIL AND GAS INDUSTRY - RECENT TRENDS"
by ANTHONY CONNERTY
This Paper looks at recent trends in dispute resolution in the Oil and Gas Industries. There is probably little doubt that the two major methods of dispute resolution are still litigation in the national courts and international arbitration. But it is clear that other dispute resolution processes are being used, amongst them ADR and Expert Determination. To state the obvious, which type of dispute mechanism will be used in any particular case will depend upon the precise nature of the dispute: a jurisdiction dispute arising out of an international contract is likely to be settled by litigation rather than, say, expert determination.
This Paper looks in Section II at some of the types of disputes which can arise, and in Section III at methods of dispute resolution: international conventions, statutory arbitration and, in the case of commercial contracts, litigation, arbitration, ADR and expert determination.
Sections IV and V look at dispute resolution in the context of two specific factors which are likely to have an impact on the Energy Industry.
Section IV considers the Contracts (Rights of Third Parties) Act 1999. That Act is likely to have an effect on arbitration provisions in Energy contracts.
Section V considers Electronic Commerce. E-Com is already being used in the Petroleum Industry. Its use will almost certainly increase. Will new methods of dispute resolution be developed? Will on-line trading lead to systems of on-line dispute resolution?
II. TYPES OF DISPUTE IN THE OIL AND GAS INDUSTRY
Disputes in the Industry can range from maritime boundary disputes between States through oil and gas trading contract disputes to offshore construction and pipeline disputes.
Some of the areas of dispute which are likely to arise include :
A.International Maritime Boundary Disputes
D.Oil Trading Contracts
III. METHODS OF DISPUTE RESOLUTION USED IN THE INDUSTRY
Because of the special nature of the Energy Sector, disputes between States and disputes between corporations and national governments are likely to arise. Resolution of these disputes may be by way of machinery contained in international Conventions or in domestic legislation passed by national governments.
On the commercial front, many of the dispute resolution processes used in the Oil and Gas Industry will obviously be similar to those used in other areas of international trade.
Given the international nature of many of the contractual arrangements in the Industry, it is understandable that, in addition to litigation in national courts, disputes are likely to be resolved by way of international commercial arbitration.
For the future, increased use may be made of two other dispute resolution processes. First, Alternative Dispute Resolution (ADR) in its various forms (particularly mediation/conciliation). Second, expert determination.
Set out in this section are some of the dispute resolution processes which are likely to be used in the Oil and Gas Industry.
(1) International Conventions
The third United Nations Conference on the Law of the Sea (commonly known as UNCLOS III) states in Article 2 that:
"(1) The sovereignty of a coastal State extends beyond its land, territory and internal waters... to an adjacent belt of sea, described as the territorial sea.
(2) This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
(3) The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law".
Articles 3 and 5 deal with the breadth of the territorial sea and the "normal baseline" and Article 3 provides that:
"Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baseline determined in accordance with its Convention". Article 5 states that: "... The normal baseline for measuring the breadth of the territorial sea is the low water-line along the Coast...".
Given the complexity of the subject matter of UNCLOS III it is unsurprising that the dispute resolution processes contained within the Convention are themselves complex. The first session of the U.N. Convention began in Caracas in 1974 and discussions as to dispute resolution processes continued until the Convention was approved in 1982. Part XV contains provision for the settlement of disputes. Article 279 provides that States which are parties to the Convention "shall settle any disputes between them concerning the interpretation or application of this Convention by peaceful means..." Article 287 says that States shall be free to choose one of the methods of dispute settlement set out in the Convention. These methods include Conciliation in Annex V, Arbitration in Annex VII and "Special Arbitration" in Annex VIII.
Under the conciliation procedure in Annex V, the Secretary-General of the United Nations maintains a List of Conciliators, each State's party being entitled to nominate four conciliators. Proceedings are instituted by written notification to the other party. A Conciliation Commission is set up comprising five members. Each party to the dispute appoints two conciliators (preferably chosen from the List). Those conciliators appoint a fifth conciliator who shall be Chairman.
The Conciliation Commission determines its own procedure and may "draw the attention of the parties to any measure which may facilitate an amicable settlement of the dispute." The Commission is to hear the parties, examine their claims and objections and "make proposals to the parties with a view to reaching an amicable settlement".
The Commission is to report within 12 months of its constitution. The report is not binding upon the parties: Article 7 of Annex V.
Arbitration proceedings are instituted by written notification to the other party, such notification being accompanied by a Statement of Claim on the grounds on which it is based: Article 1 of Annex VII. The Secretary-General of the United Nations maintains a list of arbitrators. Each State is entitled to nominate four arbitrators: "each of whom shall be a person experienced in maritime affairs and enjoying the highest reputation for fairness, competence and integrity": Article 2. The Tribunal is to comprise five members, one each of whom is appointed by the member country concerned from the List of Arbitrators, the other three members being appointed by agreement between the parties: these shall be nationals of a third State. The Arbitral Tribunal determines its own procedures. Decisions are taken by a majority vote. Unless otherwise agreed the award is final and without appeal.
The "Special Arbitration" procedure in Annex VIII relates to disputes concerning fisheries, marine environment, marine scientific research, navigation and pollution.
(2) Statutory Arbitration
In the UK, the various statutes vesting the ownership of petroleum in the Crown contain provisions for the granting of licenses.
Disputes involving licenses are to be referred to arbitration. For example, the Petroleum (Current Model Clauses) Order 1999 contains a provision in Clause 37 that if at any time any dispute, difference or question arises between the Minister and the Licensee:
"as to any matter arising under or by virtue of this licence or as to their respective rights and liabilities in respect thereof then the same shall, except where it is expressly provided by this licence that the matter or thing to which the same relates is to be determined, decided, directed, approved or consented to by the Minister, be referred to arbitration as provided by the following paragraph."
The Model Clause then goes on to provide that the arbitration is to be by single arbitrator who in default of agreement between the Minister and the Licensee is to be appointed by the Lord Chief Justice of England.
(3) Commercial Contracts
The contractual provisions dealing with dispute resolution in commercial contracts are of vital importance. Provision will normally be made as a minimum for the following:
1.Forum: in what country should the dispute resolution process take place?
2.Choice of Law: which country's law is to govern the contract? It is, of course, always open to the parties to provide for a choice of laws rather than a choice of law and to provide that disputes will be resolved by way of reference to general principles of international law or lex mercatoria. However, the choice of a national law is likely to be the norm.
3.Dispute Resolution Process: broadly speaking, there are four dispute resolution processes in common use: litigation, arbitration, ADR and expert determination.
If litigation, which country's courts are to have jurisdiction?
If arbitration: is this to be institutional or ad hoc? If institutional, which institution? LCIA, ICC, etc.?
If ADR, should some form of ADR filter mechanism be inserted in the contract, arbitration then only being triggered off in the event that the ADR process fails?
Or is expert determination the appropriate way to resolve disputes?
This Section looks at those four dispute resolution processes.
Litigation in the national courts is probably - despite the increasing use of international commercial arbitration backed up by the New York Convention - still the major international dispute resolution process in use.
In the context of international contracts the major problem in relation to litigation is the prospect for one of the parties of that litigation taking place in the courts of a foreign country, conducted in a foreign language and under a foreign system of law.
However, litigation may be the dispute resolution process used for a variety of reasons:
No contractual provision is made for dispute resolution.
The bargaining power of one party is such that it is able to insist that litigation takes place in the Courts of a country chosen by that party.
A deliberate, consensual, choice of the parties.
More than 80% of the cases heard in the Commercial Court in London have no connection with England in the sense that either the subject-matter of the contract has no connection with England or one or more of the parties is not English.
Such parties may choose the English courts as the forum for resolution of any disputes which may arise under the contract and additionally may choose English law as the law to govern that contract.
Litigation in the national courts may, on the particular facts of the case, be the only realistic option open to the parties. See for example the following cases referred to in the Appendix:
(1) Jurisdiction disputes
Shell International Petroleum v. Coral Oil; Glencore v. Metro Trading International; Caltex Trading v. Petro Trading International; .
(2) No defence to the claim: summary judgment
Petrotrade Inc. v.Texaco.
(3) Injunctions, etc.
Shell International Petroleum v. Coral Oil
(4) Challenge to an arbitral process
Petroleos de Portugal and Petrogal v. BP Oil International; Total Liban v. Vitol Energy.
(5) Challenge to expert determination
Shell UK v. Enterprise Oil.
"The English have always been more given to peaceableness and industry than other people and rather than go so far as London and be at so great charges with attorneys and lawyers, they would refer their difference to the Arbitration of their parish priest, or the Arbitration of Honest Neighbours":
Edward Chamberlayne: Angliae Notitia, 12th edition, 1684.
There is no international court to deal with international disputes. Therefore if no provision whatever is made in a contract for dispute resolution, any disputes arising out of that contract (which cannot be resolved by negotiation between the parties) are likely to have to be dealt with by litigation in the national courts.
If the contract is between, say, a UK party and a non-UK party then that may mean litigation in a "foreign" court. That may not appeal to the UK party. Equally, the non-UK party may be faced with having to sue in the UK courts. In each case, one party will be faced with having to resolve disputes in a foreign country under a foreign legal system and in a foreign language.
The way to avoid the problem is to make provision for some other method of resolving disputes.
One obvious dispute resolution process to include in an international contract is arbitration. The parties can agree that, instead of their disputes being dealt with in the national courts, any disputes will be heard by an arbitral tribunal. Because arbitration is a consensual process, the parties can decide who will resolve their disputes, in which country the arbitration should take place, what law should be applied to the resolution of that dispute and which language shall be used for the purposes of the dispute hearing.
The parties can also choose the rules to be applied for resolving the dispute. Additionally, arbitration being a private dispute resolution process, the parties will know that the proceedings will be confidential.
Arbitration may - indeed in many cases should - prove to be a quicker and cheaper means of resolving disputes than the national courts.
Many commercial contracts in which the parties have agreed to have their disputes resolved by arbitration will specify one of the well- known international arbitral bodies such as the International Chamber of Commerce in Paris or the London Court of International Arbitration.
(2) Arbitration and national laws
Arbitrations conducted under, say, the Rules of the ICC or the LCIA, must be conducted in accordance with the relevant national laws, and on an international basis, with an eye to the New York Convention.
As to national laws, it is clear that arbitration - as a private dispute resolution system separate from the litigation systems of the national courts - can only operate with the agreement of national governments. Broadly speaking, national governments support arbitration as a private system principally in two ways. First, by staying litigation in the national courts in circumstances where the parties have agreed to arbitrate. Secondly, by enforcing in the national courts the awards made by arbitral tribunals. In addition, the State courts may aid the arbitral process by, say, granting injunctions. But in return the State expects to exercise a degree of control over the arbitral process by, for example, allowing appeals in certain circumstances to the State courts against arbitration awards.
ICC and LCIA arbitrations taking place in England are subject to the mandatory provisions of the English Arbitration Act of 1996.
(3) Institutional Arbitration: the ICC and the LCIA
As an arbitral body, the ICC is amongst the world's foremost arbitral institutions. Its revised arbitration Rules came into force in 1998. The Rules deal with the commencement of the arbitration; the appointment of and challenge to arbitrators; the service of the Claimant's Request and the Respondent's Answer; provisions as to the place of the arbitration, the language of the arbitration and the procedures to be followed at the arbitration hearing; and the provisions relating to the Award and scrutiny of that Award by the ICC Court in Paris.
Like the ICC, the LCIA is a truly international organisation. It will arrange and administer arbitrations under any system of law in any part of the world. It will do so either under its own Rules or under the UNCITRAL Rules. There is no more need for an LCIA arbitration to be conducted in London than there is for an ICC arbitration to be conducted in Paris. The LCIA's own Rules have been translated into many languages.
The former president of the LCIA (now honourary president), Sir Michael Kerr, has said that:
"There are grounds for thinking that LCIA arbitration clauses are nowadays increasingly incorporated into contracts. The new 1985 LCIA Rules are being used world-wide and appear to have achieved world-wide renown".
The LCIA Rules have been revised from time to time, the most recent revision taking account of the new English Arbitration Act which came into force in January 1997. The Rules, which follow a recognisable international pattern, took effect from January 1998.
An arbitration under the LCIA Rules may well have particular attractions for the Oil and Gas Industry.
Although an LCIA arbitration can take place anywhere in the world, the LCIA is, like the Institute of Petroleum, London based. London is one of the world's major arbitration centres. The combination of the revised LCIA Rules and the new English Arbitration Act may increase London's attractiveness as a venue for international commercial arbitration. In addition, there are various aspects of the LCIA's Rules which may be of particular interest. Some of these are set out below:
Fast track arbitration:
Article 9 of the Rules provides that, that in exceptional emergency, any party may apply to the LCIA for the expedited formation of an Arbitral Tribunal. In addition Article 4.7 gives power to the Tribunal to extent or abridge periods of time under the Rules and Article 22 gives additional powers to the Tribunal which include the extension or abbreviation of time limits.
"Seat" and the place of arbitration:
Article 16.1 of the Rules provides that the parties may agree "the seat (or legal place) of their arbitration". Article 16.2 states that hearings may be held at "any convenient geographical place".
This follows the provisions of the new English Act which states that the parties may agree upon the "juridical seat" and that the Tribunal can decide procedural matters such as when and where the proceedings are to be held.
The result is to give considerable flexibility to the parties and the Tribunal.
Language of the arbitration:
Article 17 states that the "initial language" of the arbitration shall be the language of the Arbitration Agreement but that, upon formation of the Arbitral Tribunal (unless agreed otherwise), the Tribunal shall decide upon the language of the arbitration. This is to be done after giving the parties an opportunity to make written comment.
Interim and conservatory measures:
The Arbitral Tribunal is given power under Article 25 of the Rules (unless otherwise agreed by the parties in writing) to order any respondent party to a claim or counterclaim to provide security for all or part of the amount in dispute. This is to be by way of deposit, bank guarantee or some other appropriate form. The Tribunal can also make orders in relation to the preservation, storage, sale or other disposal of property relating to the subject matter of the arbitration and can in addition make provisional orders relating to the payment of money or the disposition of property. Power is also given by Article 25 to make an order in relation to security for costs by any claiming or counter-claiming party in the arbitration.
Confidentiality may well be a matter of considerable importance to the parties in an arbitration. The new English Act makes no provision in relation to confidentiality: the view was that it was difficult to draft a statutory provision which would cover all of the necessary exceptions to confidentiality. However, Article 30.1 of the revised LCIA Rules provides that, unless the parties have otherwise agreed, they undertake "as a general principle to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain...". An exception is made to the extent that disclosure may be required "... by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a State Court or other judicial authority". Article 30.2 provides that the deliberations of the Arbitral Tribunal are likewise confidential and Article 30.3 states that the LCIA Court does not publish any award without the prior written consent of the parties and the Tribunal.
(4) The New York Convention
The ultimate object of referring a dispute to international commercial arbitration is the enforcement of the award made by the Tribunal. The United Nations' Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 is intended to provide for the mutual recognition and enforcement of arbitral awards made in countries which are parties to the Convention.
Most of the world's trading nations have ratified the New York Convention. Take the example of a dispute between UK and German companies. An award made against the UK company could be enforced by the German company in the United Kingdom through the UK courts. And if the UK company had assets in, say, France and Italy, the German company could likewise enforce the award through the French and Italian courts since both France and Italy have ratified the Convention.
The New York Convention has been described as "... the most important international treaty relating to international commercial arbitration. Indeed, it may be regarded as one of the major contributing factors to the rapid development of arbitration as a means of resolving international trade disputes".
(1) ADR: development
There is nothing new in the concept of ADR: mediation and conciliation have been used in the East for centuries. What is new is the kind of techniques which have been developed in the United States. America has led the way in developing new methods of dispute resolution other than by way of litigation and arbitration.
To a great extent those developments were driven by concern at the delays and excessive costs of both litigation and arbitration. That concern was not restricted to the United States; hence the increasing interest in ADR in England (particularly by the English Courts) and the emphasis now laid upon Alternative Dispute Resolution in the Civil Procedure Rules.
ADR is generally taken to cover all forms of dispute resolution other than litigation and arbitration. The reason for this is clear: both litigation and arbitration operate regardless of the will of the parties and result in a binding and enforceable outcome. The Defendant/Respondent against whom litigation/arbitration proceedings are launched has no choice as to whether to participate and may be faced with a judgment/award which can be enforced in the national courts. In litigation the process is imposed by the State. In arbitration the result follows from the parties' agreement to arbitrate, coupled with the State's support of the arbitral system.
But ADR in its various forms - the most familiar being mediation and conciliation - is a consensual process: the parties do not have to take part in it. And if they do, they do not have to abide by the outcome. Generally speaking, national Courts will not enforce ADR agreements and the ADR process - unlike arbitration - is not subject to any statutory code.
(2) The Civil Procedure Rules
Lord Woolf's reforms of the civil justice system in England and Wales are contained in the Civil Procedure Rules 1998. One consequence of the coming into force of those Rules is the increasing importance placed on Alternative Dispute Resolution.
The basic thinking of the CPR is set out in Part 1: the new Rules are a "new procedural code with the overriding objective of enabling the Court to deal with cases justly". Dealing with cases justly includes "saving expense" and ensuring that a case is dealt with "expeditiously and fairly": Rule 1.1.
Compare the overriding objective with the provisions of the new English Arbitration Act. Section 1 of the Arbitration Act 1996 sets out the general principles of arbitration which are to "obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense".
The overriding objective is to be furthered by case management, which is to include, if appropriate, "encouraging the parties to use an alternative dispute resolution procedure if the Court considers that appropriate and facilitating the use of such procedure" and "helping the parties to settle the whole or part of the case". (Rule 1.4(2)(e) and (f). Part 3 contains a specific mechanism (used already in the Commercial Court) enabling the Court to put the overriding objective into practice: the Court's general powers of management include the power to stay the whole or part of any proceedings "whether generally or until a specific date or event".Rule 3.1(2)(f).
Part 26 enables the parties themselves to request a stay of proceedings to enable the case to be settled "by alternative dispute resolution or other means". (Rule 26.4(1)). The Court of its own initiative can stay the proceedings if it considers it appropriate. Whether the impetus comes from the parties or from the Court, a stay of one month can be imposed which can be extended to a specific date or for a specific period.
ADR has long been encouraged by the Commercial Court. "This may involve the Commercial Judge inviting the parties to use ADR at the Case Management Conference or even adjourning the case to encourage and enable the parties to use ADR..."
The draft ADR order contained in the Commercial Court Guide requires the parties to exchange lists of three neutral individuals who are available to conduct ADR procedures and/or to provide a list identifying the constitution of one or more panels of neutral individuals available to conduct ADR procedures. The parties should then seek to agree a neutral individual or panel. They shall then take "such serious steps as they may be advised to resolve their disputes by ADR procedures before the neutral individual or panel so chosen". Specific time limits are laid down for each part of the process. If the case is not settled, the parties are to inform the Court.
The Commercial Court Guide makes it clear that the reference to "ADR" leaves the parties free to use whatever they regard as being the most suitable procedure "be it mediation, early neutral evaluation, non-binding arbitration, etc."
(3) Types of ADR
Conciliation and mediation
The two words tend to be used interchangeably. Both involve the use of a third party neutral who will seek to bring the parties to a settlement. The extent to which the neutral takes an active part in seeking to bring about a settlement may attract the label of "mediator" or "conciliator". However, reference to "mediation" would seem to be taking the lead, at any rate in the commercial context.
The process of "caucusing" is probably the most significant aspect of mediation. The mediator holds a series of separate meetings with the parties in dispute: this process is aimed at seeking to bring the parties to a settlement through the identification of any hidden agendas and the exploration of problem-solving proposals. The mediator may only divulge what has been said to him by one party in a caucus session if express permission is given.
This process is often used in disputes between corporations. A "hearing" takes place before a neutral third party and senior executives of the business organisations involved. Those executives will not have been concerned in the dispute itself. Each side presents its case. It is open to the third party neutral to indicate the consequences in terms of time and money should the mini-trial process fail. This system has enjoyed considerable success in the United States.
Here, the third party neutral may be a lawyer or retired Judge who can deliver a non-binding evaluation of the dispute should the ADR procedure fail and the matter proceed to litigation or arbitration.
"Neutral Listener Agreement"
This is a system offered by the American Center for Public Resources. Under this CPR process each party submits its best settlement offer to a third party known as "the neutral listener" who indicates to the parties whether he considers the offers to be such as to be negotiable. If so, the "neutral listener" will offer to help to negotiate so as to bring the parties to a possible settlement.
(4) ADR in an international context
Although ADR in its present form developed in the United States, it is now in use worldwide.
Many of the major international arbitration institutions, such as the ICC, the LCIA and the China International Economic & Trade Arbitration Commission in Beijing (CIETAC), offer a wide range of dispute resolution processes which include both arbitration and ADR.
Other bodies, such as the Beijing Conciliation Centre and the London-based Centre for Dispute Resolution, are purely ADR bodies.
Then there are specialist bodies, such as the ICC's International Centre for Expertise in Paris and the U.N.'s World Intellectual Property Organisation (WIPO). The ICC offers highly specialist dispute resolution procedures in the area of documentary credits.
WIPO is now operating a scheme aimed at resolving Domain Name dispute.
On these ICC and WIPO schemes, see Section V below.
(5) ADR as a pre-arbitral dispute mechanism
ADR has been used with considerable success as a pre-arbitral dispute mechanism in major construction projects around the world.
In this context ADR is of particular use in contracts involving a considerable number of parties. Disputes on such projects require to be settled swiftly in order to avoid disrupting the progress of the works.
The kind of contractual provision which is likely to be found in connection with such projects will require disputes to go through some form ADR "filter" before proceeding to arbitration. The obvious hope is that the ADR process will in fact render arbitration unnecessary. The type of ADR mechanisms which are used as "filters" are likely to comprise such processes as adjudication by a panel of experts or by a Dispute Review Board. It was this kind of procedure which was used in the Channel Tunnel Group Limited v. Balfour Beattie Construction Limited and Others  2 W.L.R. 262, House of Lords.
Similar ADR mechanisms have been used in the Boston Central Artery/Tunnel Project and in the Hong Kong Airport Core Program.
(6) Med-Arb, etc.
In addition to ADR being used as a filter mechanism it is possible to use a mixture of arbitration and mediation or mediation and arbitration. Indeed, whatever combination of mechanisms the parties choose.
The notion of switching from, say, arbitration to mediation may be difficult for Western lawyers and arbitrators to accept since this must always involve the prospect of a mediator having to revert to the role of arbitrator.
But such a course, whilst perhaps strange to the Westerner, would be regarded as perfectly natural in, say, China. For example, provision is made in the CIETAC arbitration rules for an arbitral tribunal to switch to acting as conciliator.
ADR in its various forms has much to offer as a dispute resolution process. But it has to be used sensibly. It is not the answer to every dispute. The client whose products are being counterfeited is unlikely to be impressed by the lawyer who suggests that he try ADR. There will always be situations where an application to a national Court for an order or declaration is the only realistic option available.
The extent of the use of ADR in the Oil and Gas Industry is unclear. The Centre for Dispute Resolution (CEDR), for example, has dealt with petroleum disputes. However, for obvious reasons, specific information is unavailable.
D. Expert determination
(1) Expert determination and arbitration
The use of experts to determine technical or valuation matters has been known to English law for hundreds of years. The parties agree to instruct a third party to determine a specific matter.
The system has been used in the Energy Industry for redetermination and for the resolution of specific matters identified in the relevant contract. See for example two of the cases referred to the Appendix: Total v. Arco and Shell (UK) v. Enterprise Oil.
It may be at times difficult to distinguish between expert determination and arbitration. But the differences between the two are significant.
An expert is appointed to obtain the benefits of his expert opinion. It is that expert opinion which will be used to arrive at the determination. Very often the matters to be decided will involve the expert in a valuation exercise. "Due process" may be conspicuously absent from the system of expert determination: the parties may not necessarily present their case or submit evidence. In England, at any rate, there are no statutory provisions governing expert determination.
Arbitration, on the other hand, is governed by the provisions of the 1996 Arbitration Act. Due process is very much part and parcel of the arbitral process. Leaving aside documents only arbitrations, the parties will in all probability present their cases to the arbitral tribunal and the decision of that tribunal is based upon the evidence and submissions put forward by the parties and their professional advisers. The arbitral tribunal must, in arriving at its decision, apply the relevant law. The expert on the other hand uses his own expertise and decides the issue in dispute on the basis of his expert opinion.
The assistance of the Courts is available to aid the arbitral process. For example, under the English Act the Court can appoint arbitrators. There is no such provision in relation to experts. Similarly, the Courts can assist the arbitral tribunal by enforcing peremptory awards of that tribunal, by securing the attendance of witnesses and by making orders in relation to the taking of evidence, the preservation of evidence and the making of orders relating to any property which is the subject-matter of the proceedings: for example in relation to the preservation and custody of such property. The Court also has powers to grant interim injunctions and appoint receivers in support of the arbitral proceedings.
An arbitral award can be challenged on the grounds of "serious irregularity" and there is a limited right of appeal in relation to points of law. No such safeguards apply in the case of expert determination. Any challenge to the determination of an expert can only be on fairly limited grounds relating, for example, to fraud or collusion, or an allegation that the expert had departed from his instructions to a material extent.
But perhaps one of the most significant differences between expert determination and arbitration lies in the area of enforcement.
On the domestic level, an arbitral award is normally enforced through the national courts. That is the case in England, where an award is enforceable as if it were a judgment of the Court.
No such assistance is available in relation to the determination of an expert. Such determination is enforceable, if it is enforceable at all, purely as a matter of contract.
The problem of enforcement on the international level is perhaps even more significant. The determination of an expert is not an arbitral award and therefore cannot be enforced under the New York Convention.
(2) Some institutions offering expert determination
Expert determination is one of the dispute resolution services offered by the LCIA.
The ICC International Centre for Expertise in Paris provides a set of Rules for Expertise. The International Centre will arrange for the appointment of experts in connection with "international business transactions". The parties may provide in their contract for resort to the Centre. The standard clause recommended by the ICC is:
"The parties to this agreement agree to have recourse, if necessary, to the ICC International Centre for Expertise of the International
Chamber of Commerce in accordance with the ICC's Rules for Expertise".
The parties may agree to submit an existing dispute to the International Centre.
The Rules for Expertise provide that the expert may be nominated by the parties by mutual consent and confirmed by the Centre, failing which the Centre will appoint an expert.
The expert is "empowered to make findings within the limits set by the request for expertise, after giving the parties an opportunity to make submissions". The parties are to provide the expert with all necessary facilities and in particular to make available documents and grant him access "to any place where the expertise operations are being carried out."
The Rules provide that "Unless otherwise agreed the findings or recommendations of the expert shall not be binding upon the parties".
The Centre for Dispute Resolution
CEDR offers a "Model Expert Determination Agreement". That agreement explains that expert determination differs from arbitration in its greater informality and says that there is "no need for a trial-type hearing. Unless the parties agree otherwise, the Expert may conduct investigations independently of the Parties, and make the Decision based on those investigations without reference to the Parties."
The provisions of the Model Agreement state that the Expert will act as expert and not as an arbitrator and state that unless the parties agree otherwise "This Expert Determination leads to a decision.... being issued by the Expert. The decision will be final and binding on the Parties". The agreement provides that the expert is to conduct the Determination "in accordance with procedural directions which the Expert will seek to agree with the Parties. If they cannot be agreed, the Expert's Directions will prevail".
The agreement enables the parties to provide whether or not the decision of the Expert is to include reasons and whether or not the parties are to be permitted to challenge the decision "in any legal proceedings or otherwise".
There is provision for the process to switch to mediation: if successful, the Expert Determination terminates.
It is interesting to compare the CEDR Model Agreement with the specimen clause used by Shell International Limited which provides as follows:
"Where, pursuant to any provision of this agreement a matter is required to be determined by an Expert, the Expert shall be a reputable person fitted by the possession of expert knowledge and experience for the determination of the matter in question. The Expert shall be appointed by agreement between the Parties or, in default of such agreement, within 30 days after a party has requested the appointment of an Expert, by the President of the Institute of Petroleum of the United Kingdom. Such expert shall determine the matter in question within 60 days after his appointment on the basis of terms of reference agreed between the Parties or otherwise as the Expert shall himself determine, as an Expert and not as an arbitrator and such determination shall be final and binding on the parties..."
IV. DISPUTE RESOLUTION AND THIRD PARTIES: THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
This Act is likely to be of significance to the Energy Industry. In the context of this Conference, its relevance lies in the fact that it will enable contractual provisions relating to arbitration to be made available to third parties.
The effect of the English law doctrine of privity of contract is that only those who are parties to a contract are entitled to its benefits and subject to its burdens. This did not apply to third parties.
A further result of the doctrine was that exclusion clauses and limitation clauses were not available to third parties. Himalaya clauses were used in an attempt to deal with the problems of liability and indemnity clauses.
The Contracts (Rights of Third Parties) Act 1999 will permit a third party to enforce a benefit given to him by a contract to which he is not a party (the rule on obligations as opposed to benefits remains unchanged).
The third party must be identified in the contract and the contract must confirm the benefits upon that third party. There are provisions dealing with variation and rescission.
Attempts to deal with the problem of the English privity rule by means of Himalaya clauses and collateral warranties should now no longer be necessary.
The provisions of Section 8 of the 1999 Act are intended to ensure that, where the requirements of that Act are satisfied, the Arbitration Act 1996 applies to the enforcement of third party rights under the Contracts (Acts of Third Parties) Act 1999.
V. E-COM AND THE PETROLEUM INDUSTRY:
HOW WILL DISPUTES BE RESOLVED?
For the past few years the emergence and development of the Internet has made changes to the life of millions of people worldwide. The rate of development is extraordinary.
Even today no one can predict with certainty where the Internet will take us.
One of the areas where the Internet has had a particular impact is commerce.
Cross-border trading can take place on the Internet virtually without regard to national boundaries.
Broadly speaking there are two types of business being transacted on the Internet: that between business and the consumer and that between business and business.
The business-to-consumer electronic commerce in America is put at some $8 billion. Many consumers in the UK are now becoming used to shopping on the Internet: not just supermarket shopping, but shopping in increasingly sophisticated areas. In the summer of 1999 Charles Schwab advertised in The Times telling UK private investors that they could trade on-line on the Dow Jones, NASDAQ, Amex and US regional exchanges.
The same newspaper carried an advertisement by Icollector offering on-line bidding facilities for millions of pounds worth of sales taking place world-wide by auction houses, antique dealers and art galleries:
"... browse through our extensive archives and reference guides to find out what you should be paying. Then you can bid on-line to your heart's content."
If the increase in consumer business on the Internet in Britain follows the trend in America, then the rate of growth will be staggering. The estimated business-to-consumer trading in America presently put at $8 billion is reckoned to increase to $108 billion over the next 5 years.
Other forecasts have put the business-to-consumer transactions in America at some $20 billion in 1999. This estimate, by Forrester Research, an Internet consulting firm, predicts that the figure will grow to $184 billion by 2004. A survey by Ernst & Young suggests that 39 million Americans, making up 17% of households, shopped on-line in 1999 and that nearly half of them spent $500 or more. Goldman Sachs forecast that by 2010 Electronic Shopping could account for 15-20% of retail sales.
The business-to-business consumer (B2C) is small beer compared to the business-to-business trading (B2B). American forecasts for inter-company trading put the present figure at $43 billion increasing to $1.3 trillion in 2003. One factor which might affect those forecasts is the type of company which is presently trading on the Internet. Well known are the new Internet companies such as Amazon and Yahoo! More important may be established firms which have not yet taken full advantage of the benefits which the Internet can offer. The Chief Executive of IBM, Lou Gerstner, is reported as saying that "the storm that's arriving is when the thousands and thousands of institutions that exist today seize the power of this global computing and communications infrastructure and use it to transform themselves. That's the real revolution."
(2) E-Com and the Petroleum Industry
Petroleum Review has for the past year or so been running a series of articles on Electronic Commerce and the petroleum sector. Although there is interest in that sector in trading, the main interest to date seems to be concentrated on cost-saving: "the main reason for the projective growth in E-Commerce is seductively simple: it purportedly saves money". General Electric recently announced that it had trimmed $1 billion off its procurement by invoicing exclusively in the electronic domaine.
"Oil companies are taking note. BP AMOCO Chairman John Browne has stated that he wants 50% electronic procurement by the end of 1999, and 95% by the end of 2000... supply chain management, also referred to as e-procurement, involves the coordination of a company's purchasing of goods and services. Generally, this entails whittling down suppliers to a core group, then negotiating savings in return for loyalty... Since IBM began to put e-procurement for its office equipment in place three years ago, it has saved an estimated $4 billion. `We'll have gone from six million invoices to nothing by the end of 1999', says Janet Wood, General Manager for e-business solutions at IBM".
Shell and Commerce One "a provider of global business-to-business e-commerce solutions" announced a plan to form a joint venture to develop an Internet market place for procurement of "a whole range of supplies and services in the oil, gas and chemicals industry. Shell anticipates that the new system will `significantly' cut procurement cost".
BP AMOCO are reported to have started using the Internet to purchase basic catalogue items: "these represent only 15% of its $20 billion annual procurement budget, but 50% of all transactions, and it has targeted $200 million savings annually from these items alone. By the end of 2000, BP AMOCO aims to conduct 95% of all purchases electronically."
Another area where electronic commerce is seen as providing cost-cutting opportunities for the industry is in spares inventory management: "If you can locate spare parts in a few minutes using the Internet, and call not just on the reserves of your own company's sites but also those of other operating companies who use much the same equipment, you can afford to hold fewer spares".
The provision of information is another area in which the Internet is seen as giving the opportunity to cut costs. DEAL ("Digital Energy Atlas & Library") is a website which provides a library of basic geo-scientific information on the UK Continental Shelf. "Deal is expected to save the industry millions of pounds a year. By providing quick and simply access to reliable sources of information, costly duplication in data storage will be eliminated and search time reduced".
(3) E-Com and legal problems
In many of the areas where e-commerce is beginning to have an impact upon the petroleum industry - for example in the provision of information -disputes are unlikely to arise. But in the trading areas where the Internet is used in the business of buying and selling - Cybertrade - disputes will inevitably arise. The problem there is that trading on the Internet will throw up problems which have never before arisen in relation to traditional "paper" transactions: contract formation on the Internet, digital signatures, etc.
Cybertrade will therefore raise legal problems the like of which have never been faced before. Processes used in paper-based trading may not assist in the resolution of difficulties arising in cross-border trading on the world-wide web. A contract concluded on-line may involve problems not encountered in a written contract executed with the pen and ink signatures of the parties.
Trading on the Internet is likely to create problems which will include the following:
formation of a contract;
digital signatures, encryption and authentication;
governing law and jurisdiction;
Formation of a Contract
Take a simple example. A in Manchester is purchasing a book on the Internet from B Limited in London. What form will this contract take? When and where will it be made? What will be its terms? If disputes develop, how can the existence of that contract be established in litigation or arbitration proceedings?
English law, for example, has complex rules dealing with the formation of a contract. One basic rule is that there must be an offer and an acceptance. Does B Limited's Website contain an invitation to treat? Or is there an offer which can be accepted? And how is the acceptance of the offer to be communicated? Does A's click on an icon bring the contract into existence?
And if it does, are there terms to be implied into that contract? English law implies terms through Statutes: terms as to fitness for purpose and the like are implied by the Sale of Goods Act. The Unfair Contract Terms Act may strike down clauses in a seller's standard conditions of sale.
Digital signatures: encryption, decryption and authentication digital signatures
What is the situation if the relevant national law requires that the contract be in writing? How will Cybertrade deal with that?
Not only may the national laws require the contract to be in written form, but there may be the further requirement that the written document bear the written –pen and ink – signatures of the parties. English law – starting with the Statute of Frauds in 1677, and more recently in the Law of Property (Miscellaneous Provisions) Act 1989 - requires certain types of contract to be signed.
How will E-Commerce handle this? The answer being advanced is the Digital Signature: public key encryption can verify the identity of the sender.
In England, two statutes are likely to have an impact on the development of Electronic Commerce.
The Electronic Communication Act 2000 is intended to "encourage confidence in Electronic Commerce and technology underlying it".
The Act provides for the legal recognition of electronic signatures and the certification of such signatures in legal proceedings.
The second statute is the Regulation of Investigatory Powers Acts 2000. Part III of the Act is concerned with investigation of electronic data protected by encryption.
Provisions dealing with electronic signatures and their certification, etc. and with the investigatory powers of the intelligence services, police, and Customs and Excise were originally all contained in the Electronic Communications Bill. In some quarters there was considerable disquiet at the intention to include provisions as to Electronic Commerce and provisions as to investigatory powers in one and the same piece of legislation. [For example "the tipping-off" provisions now contained in Section 54 of the Regulation of Investigatory Powers Act provide for a criminal offence carrying a penalty on conviction of five years' imprisonment].
It remains to be seen what effect the Regulation of Investigatory Powers Act may have upon the development of Electronic Commerce in the United Kingdom.
The Particular Problems of Governing
Law and Jurisdiction
Again, take a simple example: when the contract for the purchase and sale of a vehicle is made between A in London and the B Corporation in Germany, which country's law governs that contract and which country's courts have jurisdiction? The country of the buyer or the country of the seller?
In the UK (and most of the European Union) the Rome Convention applies to identify the governing law: it will be the law of the country which is "most closely connected" with the transaction. Likewise, the Brussels Convention deals with the question of which country's courts have jurisdiction over that contract. But what is the position under a trans-border contract entered into between an EU and a non-EU party? Does the law of the seller's country apply? Do the Courts of the seller's country have jurisdiction? Or in one or both cases is it the buyer's country?
The particular legal problems of governing law and jurisdiction have always existed in cross-border trading. Because Electronic Commerce is by its very nature a system of trading without national boundaries, problems relating to governing law and jurisdiction are likely to increase.
(4) New dispute resolution processes for E-Commerce
When disputes arise in E-Commerce transactions, the traditional dispute resolution processes will be available: litigation, international commercial arbitration and so on. But will the advent of E-Commerce bring with it new mechanisms for dispute resolution? Will on-line trading bring on-line dispute resolution?
Is it possible that electronic commerce will produce the development of dispute resolution processes which make use of the Internet? Could the costly and time-consuming processes involving physical arbitration hearings be replaced by on-line electronic dispute resolution processes? Will we see the emergence of the Cyber Arbitrator?
Two major international organisations are already looking at the problem: the ICC in Paris and WIPO in Geneva.
The ICC : Documentary Credit Disputes
The ICC may already have shown the way to resolve cross-border disputes swiftly and cost-effectively without the necessity for physical meetings.
In October 1997 the ICC published the DOCDEX Rules, the "Rules for Documentary Credit Dispute Resolution Expertise". The system is made available through the ICC's International Centre for Expertise in Paris and can be used to resolve Letter of Credit disputes where the Credit is subject to the ICC's Uniform Customs and Practice for Documentary Credits (the UCP) or the Uniform Rules for Bank-to-Bank Reimbursement under Documentary Credits (URR).
The Rules provide for a swift, non-binding determination by a panel of three Experts. There is no hearing. The party seeking a DOCDEX decision submits a Request which must identify the issues. The Request must be accompanied by the Letter of Credit in question and other relevant documents. The Respondent submits an Answer to which is annexed any relevant documents. Three "Appointed Experts" are to draft a decision which is to be submitted to the Centre within 30 days. That decision is based on documents only. The Rules state that the parties may not seek an oral hearing in front of the appointed experts.
In all probability the three Experts will be from three different countries. There is no requirement in the DOCDEX Rules that the Experts should physically meet. The communications between the Experts for the purposes of arriving at their decision can therefore be by telephone, fax or E-mail. The way is obviously open for on-line communication between the experts.
Parties involved in DOCDEX cases dealt with so far have come from more than 20 countries including Belgium, France, Italy, Spain, Switzerland, Turkey, Bulgaria, Hungary, China, India, USA and Australia. Experts appointed to the DOCDEX Panel in those cases have come from over 25 countries.
WIP0 : Domain Name Disputes
The World Intellectual Property Organisation is one of a number of specialised agencies operated by the United Nations. For sometime WIPO has been working on an on-line dispute resolution system aimed at dealing with Domain Name disputes. Draft Rules issued in 1997 contained provisions dealing with hearings. These were defined as including telephone or video conferencing and the "simultaneous, authenticated exchange of electronic communications on the same channel in a manner that enables all Parties authorised to use the channel to receive any communications sent and to send communications".
Although intended specifically to deal with Domain Name disputes the draft Rules could be adapted to deal with on-line Electronic Commerce disputes generally.
Erik Wilbers of the WIPO Arbitration and Mediation Center in Geneva has suggested that the expansion of Electronic Commerce on the Internet "may soon lead parties to settle disputes in the same manner as their commerce is conducted".
The WIPO Domain Name Dispute Resolution Procedure is now operational with effect from December 1999. By mid-2000 WIPO was dealing with more than 700 cases.
The WIPO system is based on the ICANN System (Internet Corporation for Assigned Names and Numbers). WIPO was instrumental in the setting up of ICANN. Documents of particular importance in the WIPO scheme are the ICANN Rules and Policy Document and the WIPO Supplementary Rules and Policy Document.
How the system works can be explained by a simple example:
(1) Party A (to be the Respondent in the future dispute) registers a Domain Name with WIPO.
(2) The WIPO "Registration Agreement" for that registration incorporates by reference the ICANN/WIPO Rules.
(3) Party B (to be the Complainant in the proceedings) says that the registration was in "bad faith" (e.g. "marksandspencers.com").
(4) The Complainant makes a written complaint to the WIPO Center, setting out the grounds of complaint: the Domain Name is similar to the Complainant's trademark or service mark and the registration was made in bad faith: for example for the purpose of selling that Domain Name to the Complainant for more than mere "out of pocket expenses".
(5) The Respondent is to put in a Response.
(6) The procedure is on-line although communications can be by mail, fax, and e-mail. Hard copies are also to be provided.
(7) A panel is appointed (either one or three).
(8) There is no hearing.
(9) The panel makes its decision and can either order the transfer or the cancellation of the Domain Name.
(10) Within ten days of the issue of the Decision a dissatisfied party can institute proceedings in a national court.
(11) Subject to that, the Center notifies the parties, ICANN and the Domain Name Registrar who will, for example, cancel the Domain Name.
What future trends will we see in dispute resolution systems in the Oil and Gas Industries?
Litigation in the international courts and international arbitration are likely to continue to be the major dispute resolution systems in use.
Expert determination may well increase, but is likely to be restricted to fairly narrow areas.
ADR may also have an increasing role to play. Information is not easy to come by, but the indications are that ADR is being used and may be used more often as lawyers and their clients become accustomed to mediation and what it can achieve.
It may well be that ADR will also have a role to play as a filter mechanism of the kind used in the Boston Central Artery/Tunnel Project and in the Hong Kong Airport Core Program: i.e. by way of contractual provisions which specify one or more ADR filter processes, with a long-stop provision for arbitration (or litigation) should the ADR filters fail to resolve the dispute.
What of electronic dispute processes? As Electronic Commerce becomes increasingly used in the Energy Sector, will we see new processes added to the existing dispute resolution methods? Will on-line dispute systems be used to resolve E-Com disputes?
A distinction has to be drawn between pure on-line dispute systems and the use of electronic means to assist and speed up existing arbitral processes. But in both areas the likelihood is that the use of the Internet in dispute resolution will increase.
But sadly, the parish priest and the honest neighbour are unlikely to be lending a hand.
EXAMPLES OF OIL AND GAS DISPUTES
Set out in this Appendix are examples of some of the types of dispute listed in Section II of the Paper and some of the dispute resolution procedures considered in Section III
Appendix not included in on-line Journal
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(added 23 April 2001)
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