Professor Emmert Incorporates Mediation and Arbitration Institute in Indianapolis
05/09/2018
Professor Frank Emmert has incorporated the International Smart Mediation and Arbitration Institute (SmartArb) in Indianapolis. SmartArb responds to a need identified by the team behind World Trade Center Indianapolis, including its chair, Greg Zoeller, to have a specialized center for alternative dispute resolution affiliated with the organization. The goal is for SmartArb eventually to be located inside WTC Indianapolis.
"In just a few weeks from now, SmartArb will be open for business as the first ADR center in Indianapolis," Professor Emmert said. "The partners at McKinney and the WTC Indianapolis are looking forward to serving the business community in Indiana and also to bringing externship opportunities to the students and real-life scenarios to the classrooms at McKinney.”
If a disagreement should happen between the parties to an international business transaction, the default method of dispute settlement is transnational litigation. In essence, the plaintiff in one country has to bring a lawsuit at the place of business of the defendant in another country. Alternative Dispute Resolution (ADR), in particular mediation and arbitration, is often a better choice, Professor Emmert said. Other factors to consider include the following:
- litigation is usually perceived as more antagonistic while ADR is more likely to lead to a settlement and allow the parties to return to doing business with each other;
- litigation is generally public, exposing the parties and the details of their business relationship to competitors, customers, regulators, analysts, bankers, tax collectors, among others;
- litigation is generally slower, meaning that parties may have to live with uncertain outcomes for years;
- litigation is often conducted in front of judges who are generalists and have little understanding of the customs and practices in the respective industry;
- litigation in front of a foreign court requires the involvement of foreign lawyers who are admitted to the respective bar while ADR can be conducted with the in-house and habitual external counsel of the parties;
- litigation in foreign courts is subject to foreign codes of procedure; the parties have no influence over the time, place, language, or any other details of the proceedings;
- litigation may look less expensive at the outset but quickly becomes more expensive than ADR when it drags out for years and, in particular, if a first decision is appealed;
- litigation results in a judgment of a foreign court that is not easily enforceable in other countries; by contrast, the New York Convention ensures the recognition and enforcement of foreign arbitral awards in over 150 countries;
Mediation and arbitration can provide parties with the ability to obtain tailor-made, yet professional, fair, and efficient solutions that avoid virtually all of the pitfalls of transnational litigation. The terms “mediator” and “arbitrator” are not protected and virtually anyone can use them to attract dispute settlement business, Professor Emmert said. All neutrals affiliated with SmartArb are certified and experienced. Arbitrators must be Chartered Arbitrators or Fellows of the Chartered Institute of Arbitrators – the gold standard in international commercial arbitration – or provide similar credentials before being added to the roster of neutrals of SmartArb, he said.
The SmartArb rules of procedure, currently being developed by Professor Emmert and reviewed by other experienced international arbitrators, are built on best-practices from around the world, including the Chartered Institute, and the International Chamber of Commerce.
Professor Emmert is an internationally recognized commercial arbitrator. He became a Fellow of the Chartered Institute of Arbitrators in Spring 2018, two years after becoming a member of the organization. He serves on the Executive Committee of the organization's North America Branch. At McKinney, he is the Executive Director of the Center for International and Comparative Law, and the John S. Grimes Professor of Law. He teaches International Business Transactions, International Commercial Arbitration, International Investment Law, World Trade Law, and European Union Law.
