Situation: An international law professor has charged his law students with determining which alternative dispute resolution method is likeliest to achieve a favorable result for the claimant, XYZ Construction which is based in the USA, who is pursuing legal action against the respondent, CCC Concrete Co. which is based in Antwerp, Belgium.
XYZ claims that while in the process of building a new convention center in Antwerp (The Center for Global Excellence), CCC failed to communicate that their company would not be able to provide the necessary materials to complete construction of the convention center within the agreed-upon time frame of the contract. Since the building schedule timeline was a key reason CCC Concrete was chosen over competitors – XYZ feels they are in breach of contract now that CCC acknowledges they will not be able to complete the convention center in the set time frame. They estimate it will take at least 18 additional months from the original completion date in contract due to unforeseen circumstances. (For purposes of example assume no force majeure)
The law professor splits his students to role-play claimant and respondent positions. He asks his students to examine a new resource, Dispute Resolution Data (DRD), that the law library recently acquired so their law school has the most up-to-date information regarding international commercial arbitration and mediation data. Their assignment is to determine the following:
- What is the likelihood of being able to resolve this in mediation?
- Where would the most favorable geographic region be to hold arbitration proceedings should mediation not work?
- What is the average duration of arbitration cases in construction and likelihood of settlement?
- What is the average arbitration award in relation to claim amount?
- How much should they anticipate in institution and arbitrator/mediator fees?
- Does it make a difference in outcome if 1 versus 3 arbitrators are used?
