Outside counsel can provide vast assistance to in-house attorneys, especially at the inception of the contracts between businesses.
The energy industry is fraught with change–emerging energies, fluctuating demand and prices, environmental groups’ concerns, and the status of Investor State Dispute Settlement (ISDS) challenge companies and utilities in domestic and international energy markets.
COVID-19 may have changed the types of issues that in-house counsel deal with; for example, the proliferation of remote work. The reduction in electricity use at workplaces affects power purchase agreements (PPAs) between electric companies and utilities, and technology requirements to provide cybersecurity protections – always high – have increased due to remote workforces.
Outside attorneys can assist companies to curtail the time and cost of work disruptions by inserting an alternative dispute resolution (ADR) clause in their initial contracts.
Less adversarial than litigation, ADR helps resolve disputes quickly and economically, while preserving business relationships among industry sectors with whom companies have repeat dealings. Arbitrators with subject-matter expertise can get to the heart of the dispute rapidly and knowledgeably.
The not-for-profit AAA-ICDR – the largest global provider of alternative dispute resolution services in the world – can be trusted to handle disputes expeditiously, confidentially, and cybersafely.
With demonstrated expertise in the energy field, the AAA-ICDR is thoroughly versed in its dynamics and the disputes that can occur.
Parties to AAA® energy disputes settled at a rate of 64% prior to award—and 20% incurred no arbitrator compensation cost.
AAA fees are transparent and available on its website, which leads to a more predictable arbitration cost.
Arbitration in general offers parties the opportunity to pick their decision maker; the AAA-ICDR, however, presents parties with stellar prospects for arbitrators and mediators with subject-matter expertise in the energy field. The diverse panel is comprised of leading experts with varied experience – well versed in the technical, business, and legal aspects of energy disputes.
A sampling of experience (from panelist resumes):
All AAA panel members are bound to the AAA Code of Ethics for Arbitrators in Commercial Disputes.
The AAA-ICDR—a full-service provider – aims to move even the most complicated, multi-faceted cases through arbitration fairly and cost effectively, with the goal of getting parties back to business.
AAA-ICDR Division Vice Presidents oversee large and complex energy cases domestically and internationally.
The highly knowledgeable energy case-management team manages all administrative matters, allowing parties to focus on the substantive issues of their cases. It handles “back office” administrative issues as well as those that require immediate attention and/or high-level involvement.
Energy companies often use ad-hoc arbitrators for their cases, especially domestic ones. In today’s complicated, quickly energy arena—with the added uncertainty caused by the current pandemic – it is safer to utilize the services of an arbitral administrator.
When breakdowns in timing, arbitrator selection, or other procedural aspects occur—as they sometimes do—skilled AAA and ICDR case managers handle the issues to get the process back on track. AAA-ICDR rules have emergency provisions, and emergency arbitrators can be appointed in one day.
Derailed ad-hoc cases must go to court; and courts, burdened with their own caseloads, often place arbitration cases on the back burner. Currently, many courts are closed or experiencing large backlogs from having been closed. The AAA-ICDR is fully functioning and never had to shut down.
As detailed in the next section, ad hoc arbitration simply is not as cyber safe as administered, especially AAA-ICDR-administered.
The security and privacy of party and case information is a top priority for the AAA-ICDR, with best practice policies, technologies, and procedures to help protect data and technology resources. The protections implemented apply to all case data and equipment stored and managed on the AAA’s technology infrastructure.
The robust and comprehensive Commercial Arbitration Rules and Mediation Procedures and the International Dispute Resolution Procedures are the standard-bearers in the field. These court-tested rules are the bedrock of a successful ADR process.
Counsel can customize the conflict-management process either by inserting the standard arbitration or mediation clause below in the contract or by tailoring the clause with options that control for time and cost, along with a host of other issues, via AAA-ICDR ClauseBuilder®.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
If a dispute arises out of or relates to this contract or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.” The parties should consider adding:
For other available clauses and information on customization, see Clauses section on www.adr.org.
This simple, self-guided process assists in developing clear and effective arbitration and mediation agreements for current or future disputes. Customization is available for the number of arbitrators and method of selection, locale, governing law, administrative track, discovery, confidentiality, opinion, and appeal, and more.
If you would like an AAA-ICDR Vice President to contact you, please fill out the form on the right.
Please fill out the form for an Energy Division Vice President to contact you.
November 9, 2016
2:00 pm - 3:00 pm ET
General: $90
AAA Panelist: $80
James Reiman
and Stanley Sklar
This webinar will satisfy annual
Arbitrator Continuing Education (ACE)
requirements for AAA Arbitrators.
© American Arbitration Association
