Articles on Arbitration

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Final Offer Arbitration

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Sócrates, el béisbol y las ofertas finales

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¿Cómo debe un tribunal enfrentarse a los sesgos cognitivos?

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Nicholson en el TSJ de Madrid 

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Time-travel riddles in the assessment of damages

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The Future of Money

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Geopolitics of Energy and Game Theory

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El gobierno de las instituciones arbitrales-Mejorando, que es gerundio

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Quantum and pricing issues in disputes along the LNG project life cycle”, available in the Journal of Damages in International Arbitration, October 2018, Vol.5, No.1

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“El arbitraje en España”, prólogo del Primer Estudio de Arbitraje de la Universidad de Comillas, la Asociación de Corporate Counsels y Roca Junyent, dirigido por Marlen Estévez

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Time warps in the assessment of risks. Mathematics and Economic Sciences in International Arbitration. Vienna Arbitration Day

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XI CONFERENCIA DE ARBITRAJE INTERNACIONAL – El coste de la inversion en la valoración del daño por expropiación

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5TH ICC MIAMI CONFERENCE ON INTERNATIONAL ARBITRATION – How to avoid double counting?

Speaker at the Advanced Training Session: Assessment of damages by arbitrators. 5 Nov 2017.

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VALUE ENGINEERING IN THE FIDC CONSTRUCTION CONTRACT

(Manuel Conthe’s contribution to “International Construction Law” (Second Edition), by Lukas Klee, editor, iley&Son, 2018. )

The great pole vaulter Sergei Bubka became famous in 1983 when, still under 20, he got the gold medal in the World Championship in Helsinki with a mark of 5,70 meters. After this early victory, he went on to win the six following championships, remained the leading male pole vaulter in the world for more than two decades and broke his own world record as many as 35 times. In July 1985 he broke through the 6-meter barrier…

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THE ROLE OF SUNK INVESTMENT COSTS IN CALCULATING DAMAGES

(Manuel Conthe, Houston, November 30, 2017) 

  1. I. ALTERNATIVE APPROACHES TO DAMAGES 

Depending on the circumstances, two alternative approaches may be appropriate to assess the pecuniary damages resulting from a wrongful action or non-contractual performance:

  • An expenditure-revenue approach, focused on the increase in costs and reduction in revenues.
  • An asset valuation approach, focused on the value of the asset expropriated, terminated or destroyed…

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PAULSSON’S NIRVANA FALLACY

(Manuel Conthe, Spain Arbitration Review N.o 29/2017, June 2017, p.43-60) 

In January 2017, at the very end of his dissenting vote in ICSID case “Supervisión y Control S.A. v. Republic of Costa Rica” (ARGB /12/4), Joseph P. Klock, a Miami-based American lawyer appointed as co-arbitrator by the Spanish claimant and participating for the first time in an ICSID case, wrote the following:

“The arrangement whereby two of the panel members are selected by the parties to the agreement creates an uncomfortable aura of conflict which permeates, in my view, the proceedings. It creates a true ethical burden on these other two parties to separate themselves from the interest of those who have selected them to serve. I know that I have worked hard to neutralize this factor as I am sure my esteemed colleague, Co- Arbitrator Silva Romero, has done.” ……..

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Techniques of persuasion in international arbitration – The “Aristotle +” method

Manuel Conthe for ICC Young Arbitrators Forum, Madrid, April 5, 2017

“Guacamole Effect”

One night, Mr. Sanders was driving back in his car from a pre-Christmas celebration when he missed a stop sign and crashed into a garbage truck.

No one witnessed the accident and there was no proof of intoxication. The trucker’s lawyers alleged that Sanders was drunk and presented a witness who had seen him at the party and stated:

“When Mr. Sanders was heading toward the exit, he collided with a table and threw a bowl on the floor.”

If the witness had added:

“… a bowl with guacamole, which spread on the white carpet.”

The jury would have been more likely to believe that Mr. Sanders was driving drunk

Source: Journal of Personality and Social Psychology 1980 “Judgmental Biases Resulting from Differing Availabilities of Arguments” Robert M. Reyes, William C. Thompson, and Gordon H. Bower

 

The “Aristotle +” method

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Expropiaciones: métodos de determinación de daños

Seminario sobre Determinación y Prueba de Daños. 7 de abril de 2016

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Swaps de intereses: la sentencia del TSJ de Madrid de 28 de enero de 2015

Este artículo analiza la sentencia del Tribunal Superior de Justicia (TSJ) de Madrid de 28 de enero de 2015, que anuló un laudo arbitral de 14 de enero de 2014 sobre una permuta financiera (swap) de tipos de interés concertada en enero de 2008 entre una pequeña empresa de hostelería y el BBVA. Concluye que la sentencia es arbitraria y vulnera el artículo 41 de la Ley de Arbitraje

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Conflicts of interest and disclosure duties of non-Martian arbitrators

Arbitrators are not disembodied spirits dwelling on Mars, who descend to earth to arbitrate a case and then immediately return to their Martian retreat to await inertly the call to arbitrate another. Like other professionals living and working in the world, arbitrators have a variety of complex connections with all sorts of persons and institutions. It has been asserted by some scholars that there are only “six degrees of separation” between one person and any other person on earth. The theory of six degrees of separation holds that if a person is one step or “degree” away from each person he or she knows, and two steps or two degrees away from each person known by one of the people he or she knows, then everyone is an average of six steps or six degrees away from each person on the globe. While the validity of this theory certainly remains to be proven, its application does demonstrate how easily one may make connections between one person and another through the process of identifying real or alleged links.”

Anuario Latinoamericano de Arbitraje nº3

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The case for remission techniques in ICSID. 

The use of procedures of remand is a common feature of civil procedure systems which is seldom used in arbitration, even though remand of an arbitral award achieves greater economic efficiency than its annulment. This is especially true in respect of the high value and complex disputes that are arbitrated under the auspices of ICSID. In this paper, the authors argue that procedures of remand could correct some of the inefficiencies created by the ICSID annulment system by preserving the validity of costly and time consuming awards that would otherwise be annulled.

Latin American Journal of International Trade Law, Vol. 1, Issue 2, Year 2013

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The Art & Science of Persuasion

8th ITA Workshop, Santiago de Chile, April 2012

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Inside Arbitrators’ Minds 

Christopher Nolan’s “Inception” gets “inside the architecture of the mind”. Can we do the same with arbitrators?

Arbitrators are as likely as any other profession to fall victim to “cognitive biases” that influence their decision making, says Manuel Conthe. GAR, January 2011

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The Financial Crisis and “toxic” Retail Derivatives: Fraud by Hindsight or Mis-selling?

A Tribunal or arbitration panel may occasionally be trapped by a decision paradox when taking a simple, dichotomous final decision (e.g. accept/reject; condemn/acquit…) on a complex case involving two or more independent issues: the way in which the voting is organized – i.e. either issue-by-issue or by final outcome- may change the collective decision. Furthermore, if a majority vote is taken on the final decision, it may be impossible to base the resulting ruling on a set of reasons supported by a majority of members; but if majority voting is applied on each independent issue, the final logical conclusion from these intermediate findings may be rejected by a majority of members.

Spain Arbitration Review. Nº8/2010

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MAJORITY DECISIONS IN COMPLEX ARBITRATION CASES: THE ROLE OF ISSUE-BY-ISSUE VOTING

A Tribunal or arbitration panel may occasionally be trapped by a decision paradox when taking a simple, dichotomous final decision (e.g. accept/reject; condemn/acquit…) on a complex case involving two or more independent issues: the way in which the voting is organized – i.e. either issue-by-issue or by final outcome- may change the collective decision. Furthermore, if a majority vote is taken on the final decision, it may be impossible to base the resulting ruling on a set of reasons supported by a majority of members; but if majority voting is applied on each independent issue, the final logical conclusion from these intermediate findings may be rejected by a majority of members.

Spain Arbitration Review. 8/2010

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COGNITIVE BIASES IN LEGAL DECISION MAKING

IBA Annual Meeting, “The Art and Science of Persuasion”. Vancouver (Canada), October 4, 2010