International Dispute Resolution and Arbitration in the Oil, Gas and Petrochemical Industry

Introduction

The workshop will deal with and place the participants in real conflict avoidance and dispute management situations so that they have hands-on experience of handling dispute settlement and resolution in such a manner so that no ill will is created between the parties. It will enable participants to identify, allocate, manage, and mitigate risks and uncertainties of complex projects and transactions. It will focus on techniques to avoid conflict situations which in turn lead to litigation and arbitration. At the end of the five-day highly interactive course, participants will be able to develop strategies & tactics for dealing with litigation and arbitration to ensure enforcement of their rights. The workshop will also cover multiparty disputes and their settlement through dispute resolution. The workshop combines presentations with case studies as well as simulations of real-life pressures in dispute situations.

The Workshop Will:

• Provide a step by step approach for resolution of disputes (conciliation, mediation, arbitration & litigation)
• Analyze various modes of dispute settlement and their relative merits and demerits
• Focus on implementation of award and judgments for disputes regulated by the foreign jurisdiction

Unique features of this workshop:

• Based on case studies highlighting new and unforeseen risks for high investment/high-risk projects
• Includes a response plan for failure - how to avoid and resolve disputes and terminations
• Tailored on feedback received from a Pre-Workshop Questionnaire (PCQ) listing the specific workshop expectations from participants

Objectives

• Protect your company's interests by learning simple but effective risk mitigation techniques
• Identify likely problem areas and develop feasible solutions to remove anomalies
• Effectively minimize litigation risks on your project by anticipating potential problems and clauses
• Develop effective negotiation skills and drafting techniques
• Analyze and evaluate typical terms to develop a clear understanding of claims and liabilities
• Expedite contract review process by using appropriate tools and reminder formats

Training Methodology

This is an interactive course. There will be open question and answer sessions, regular group exercises and activities, videos, case studies, and presentations on best practices. Participants will have the opportunity to share with the facilitator and other participants on what works well and not so well for them, as well as work on issues from their own organizations. The online course is conducted online using MS-Teams/ClickMeeting.

Who Should Attend?

• This workshop is relevant for All professionals working in the Oil & Gas sector who deal with legal drafting: disputes and arbitration processes every day.
• The training program is particularly relevant for teams/persons working dealing with:
• Risk Management
• Legal Management
• Materials Management
• Supply Chain Management
• Marketing
• Contract Appraisal & Management
• Business Development
• The workshop is also very useful for technical staff dealing with the day-to-day management of suppliers and project management.

Course Outline

Day 1:

• Introduction
• Overview of disputes in the Industry
• Cost of disputes
• Issues to be considered before taking a Legal Position
• Case Study related to Force Majeure claim in an Oil and Gas Contract

Avoiding early and common pitfalls and dangerous phrases and exclusions and preventing trap

• Exclusion of liability
• Exclusion of one’s own fault
• Use of words and phrases; Notwithstanding, without prejudice to, subject to, and such other terms and phrases encountered in contract documents

Case Study: the distinction between simple negligence & gross negligence not specifically defined in the contract Group exercise: Mock arbitration

Day 2:

• Avoiding and managing disputes
• Origin of disputes
• Contractual issues
• Factual issues
• Change in circumstances
• Preference to negotiate rather than litigate
• Matters of principle
• Policy matters

Case Study: Clauses that are commonly the subject matter of dispute

• Liquidated damages clause
• Price variation
• Taxation
• Specification

Case Study: ‘Liquidated damages must not amount to a penalty’ – discussion on a landmark case on Liquidated damages

Day 3:

• Preparation for managing disputes resolution
• The relevance of dispute management team
• Role of an in-house lawyer
• Documents and correspondence
• Identifying relevant documents
• Drafting of claim and counterclaim
• Drafting exercise
• Applicable Law and Dispute Resolution Applicable Law
• The legal environment in which contract operates:
• Constitution
• Domestic law
• Common law
• Civil law
• Islamic law
• International law
• Multilateral and bilateral treaties
• Energy charter treaty
• Proper law of contract
• The legal position of conciliation and mediation
• Law of arbitration
• Procedure of arbitration
• Curial law of the venue of arbitration

Case Study: examining mineral contracts to provide for the law of the host country as the proper law

Day 4: Various modes of dispute resolution

• Expert determination
• Mediation
• Conciliation
• Arbitration
• Ad-hoc and institutional arbitration
• Venue of arbitration
• Enforcement of award
• Sovereign immunity and other problems of suing foreign governments
• Certain governments in the Middle East do not agree with the inclusion of arbitration clause- analysis

Group exercise: the study of contracts without arbitration clauses and understanding implied waiver of Sovereign Immunity

• Dispute avoidance and arbitration clauses in Oil and Gas contracts
• Dispute resolution clause in:
• Acquisition Contracts
• Production Sharing Contracts
• Joint Operating Agreements
• Service Agreements
• Analysis of various clauses

Day 5: Coping with corruption and favoritism in the arena of litigation and arbitration

• The bias of local courts
• Prototypes – Multinational corporations are exploiters
• Relations with host country government
• Coping With international legislation Dispute resolution in different regions
• Asia
• Europe – Continent and U.K
• Russia – enforcement risk
• CIS countries
• US – well developed but cumbersome
• The Middle East and African countries

Litigation and arbitration: Strategy, tactics, and enforcement

• Appointment of an arbitrator
• Appointment of legal counsel
• Making of claim and counterclaim
• Disclosure of documents
• Witnesses and cross-examination
• Injunctions and other interim orders
• Arguments Enforcement proceedings
• Identifying assets
• Enforcement methods
• Treaties
• Local laws relating to the enforcement
• Problems in multiparty disputes

Case Study: defense of Public Policy on enforcement of awards Out of court or out of arbitration settlement

• When to consider settlement
• Commencing negotiation
• Documentation of settlement
• The full and final settlement