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Resolving Disputes through Arbitration

The features of arbitration explain its constant expansion as an efficient alternative to litigation. Arbitration is both a chosen and private type of justice.
Chosen means that parties agree to submit their dispute to this type of jurisdiction. They can appoint the members of the arbitral tribunal, determine the possibility to appeal and the duration of the process. They can also set the applicable contract and procedural rules, therefore they can decide more freely in which countries they do business, without the issues pertaining to domestic courts. Private means that hearings are not public. Moreover the procedure can be confidential at the parties’discretion, which is one of arbitration’s most appealing features. It mostly means that the court is specifically appointed for the case at hand, so that its availability allows parties to expect an appropriate and pragmatic award.
As Arbitration is the business of the parties, it is unsurprisingly, one of the procedure which most leads to out-of-court settlements.

Arbitration awards can currently be enforced in around 150 countries. Arbitrators may, depending on the venue, exercise powers which until recently were reserved to State courts. For instance, interim awards can be provided in most centers of arbitration. Increasingly, parties finance the costs of an arbitration procedure with the help of third parties. Some innovative measures are currently being implemented to ensure the secrecy of assets such as intellectual property, know-how, data and the other secret elements usually produced during a trial. Definitely arbitration is one of the most flexible forms of dispute resolution.
Consequently, it is very important to choose the right professionals (attorneys, arbitrators and experts) who take part in determining the outcome of the process.

Paris has always been one of the leading venues for Arbitration thanks to the arbitration-friendly French legal and court system.

SAJJ is a law practice dedicated to dispute resolution and contracts. It is headed by Sophie Ambrosi, an attorney at the Paris Bar practicing in business, intellectual property and litigation. Trusted by her clients for more 20 years, Sophie has gained broad experience in preventing, negotiating and resolving complex litigation. She has a proven record of handling the different kinds of dispute resolution procedures. Thanks to her cross-disciplinary knowledge, she designs the most appropriate dispute provisions to secure clients’ interests and make the process a strategic tool. An experienced project manager, she can cooperate if necessary with internal or external teams.
Her experience has naturally led her to be an arbitrator on the panels of different arbitration institutions. She is part of working groups on general arbitration matters. The latest one delt with updating rules relating to parallel proceedings of a center of arbitration.

Sophie AMBROSI – Avocat
Cabinet SAJJ - www.sajj-avocats.fr
March 2016

The article can be found on page 25 of the magazine Acquisition International March 2016, here: www.acquisition-intl.com

Download the article here »

Nota: This material has been prepared for general informational purposes only and is not intended to be relied upon as legal or other professional advice.


The Non Disclosure Agreement

The Non Disclosure Agreement (NDA) or the Confidential Disclosure Agreement (CDA) is not the final contract and does not deal with the subject of a contract but with the confidential status of the information made available to each Party, during the negotiation, the performance of the contract and for a period after termination.

This kind of agreement allows parties to negotiate and do business more freely and in more confidence.

Very often the NDA may contain and specify:

  • The definition of the information regarded by the agreement;
  • The different kinds of information and their supports;
  • The reasons and purposes for the providing of information;
  • The strict and consistent use of the information by the recipient;
  • The persons allowed to access the information. Either the agreement provides a general provision on "the persons who are a need-to-know basis" or an appendix may name users and provide a confidential form for them to fill out.
  • The procedures and means undertaken to ensure the confidentiality of the information;
  • The reminder that licences and rights are granted under this agreement ;
  • The possible authorisation to quote the owner of the client as a business reference and if so, how;
  • The legal or rightful causes and the procedure of disclosure by the recipient;
  • The procedure to follow in case of disclosure for any other than legal or rightful causes;
  • The acknowledgment of liability and of the payment of damages in case of breach of the agreement;
  • The confidential status itself of the NDA.
  • The timing and the procedure for the return or the potential storing of the information;
  • The beginning and the duration of the binding aspect of the agreement - possible remaining of the non disclosure duty for a duration after the termination of the contract-;
  • The consequences of a potential invalidation of the contract on the agreement;
  • The governing law and the methods of the dispute settlement…

This list is not complete and must be adapted or extended according to needs and circumstances. Some provisions are frequently added in the NDA, such as a "Non-Solicitation Agreement".However the provisions that do not directly lead with confidentiality, should be provided either in the contract or in an autonomous agreement. Indeed, e.g. when seeking liability for a breach of non-solicitation duty, the claimant might be obliged to show the entire agreement and consequently might breach the non disclosure obligation.

An arbitration clause would be particularly relevant to the subject as there is no specific procedure measures to ensure the confidentiality and prevent the disclosure of the confidential or secret information before a state jurisdiction.

Drawing up a contract with connected agreements and annexes, is a whole build and must be thought for the present and the future in order to secure the fundamental assets of a company, such as secret elements, and prevent litigation.

Soon, the european and internal legal work on "the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure".

Sophie AMBROSI – Avocat
Cabinet SAJJ - www.sajj-avocats.fr
17 September 2015

Nota: This material has been prepared for general informational purposes only and is not intended to be relied upon as legal or other professional advice.


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