“It is not a bad thing that authors take up an "old" subject from time to time, and it is necessa... more “It is not a bad thing that authors take up an "old" subject from time to time, and it is necessary that practitioners reflect on generally accepted ideas, such as that of an obvious "superiority" of organized or institutional arbitration […] ad hoc arbitration, according to Jean Robert, in fact responds to the institution of arbitration in its purest form.” Indeed, it rests, directly and without intermediaries, on the parties’ trust, in whose hands it lies. ad hoc commercial arbitration is the object of bias and a notable lack of interest on the part of many counsels and arbitrators who prefer institutional arbitration under the aegis of recognized arbitration centers. It is still regrettable that many academics do not show more curiosity for ad hoc commercial arbitration, which is relegated to the rank of "poor relative" of commer-cial arbitration. Practitioners are less disdainful! As François Muller rightly observes: “[ ad hoc] arbitration remains relatively common in commercial matters, [because of its real or supposed advantages:] great flexibility in the definition of procedural rules, limited costs re-sulting from the mastery of these rules and mechanically saving those of an institution, and, finally, perhaps, greater confidentiality.” The purpose of this article is to try to understand, beyond the myths, the reality of ad hoc commercial arbitration, to present its advantages and disadvantages with respect to insti-tutional commercial arbitration, and to highlight the precautions to be taken in its practical implementation.
Over the last decade, commercial arbitration undeniably progressed towards more diversity on its ... more Over the last decade, commercial arbitration undeniably progressed towards more diversity on its arbitral tribunals. Mainly geared towards gender, ethnic and age, increased diversity was the result of a determined and relentless push by interest groups, themselves a product of the arbitration ecosystem. However laudable, the debate around diversity falls short of considering arbitral proceedings’ goal and arbitration users’ interests which imperils the institution’s legitimacy and future. It is therefore urgent to reassess our understanding of diversity and frame it back with litigants’ needs. This leads us to recognize the relevance of «°professional diversity°» and more broadly how this «°relevant diversity°» can reconcile users’ interests and the promotion of gender, ethnic and age diversity.
Revue de droit des affaires internationales = International Business Law Journal, 2020
The new Rainbow Suite has so far attracted cautious if not sceptical reviews. Early commentators ... more The new Rainbow Suite has so far attracted cautious if not sceptical reviews. Early commentators have high-lighted the numerous and significant changes, both in form and content, resulting in more prescriptive and procedural contracts requiring greater contract man-agement from all involved. Few have identified the tox-ic nature of a number of these amendments which could result in more disputes, thereby defeating FIDIC professed purposes. «°Le mieux est l’ennemi du bien°» (best is the enemy of good) wrote Voltaire in La Bégueule ! The FIDIC new Rainbow Suite sadly exempli-fies the proverb translated by François-Maire Arouet. More words do not mean greater clarity, certainty, bal-ance and cooperation, as will be exposed. The purpose of this article is not to provide a clause-by-clause com-mentary, but rather to point out the salient amendments that, in our opinion, have been bettered, worsened or left unchanged. While this article mostly focuses on the FIDIC Yellow Book, the author’s findings, analysis and conclusions largely apply to the Red and Silver Books given proximity of content between the different con-tracts comprising the Rainbow Suite.
The Contract Manager function was created and developed in the context of large-scale long-term p... more The Contract Manager function was created and developed in the context of large-scale long-term projects in the energy, construction and utilities fields. A key player within the Project Team, the Contract Manager drafts, negotiates and follows-up contracts, identifies and offers solutions to mitigate contractual risks, tries to create and/or use contractual opportunities, advises and assists the Project Director as well as the other members of the Project Team in defining and implementing an appropriate contractual strategy. For that purpose, the Contract Manager needs to demonstrate a wide range of skills : he must be organized and rigorous, be able to draft and negotiate various documents, and more importantly be a team player. The relative lack of competent and motivated Contract Managers make their training and recruitment a challenge for the industries using them.
“It is not a bad thing that authors take up an "old" subject from time to time, and it is necessa... more “It is not a bad thing that authors take up an "old" subject from time to time, and it is necessary that practitioners reflect on generally accepted ideas, such as that of an obvious "superiority" of organized or institutional arbitration […] ad hoc arbitration, according to Jean Robert, in fact responds to the institution of arbitration in its purest form.” Indeed, it rests, directly and without intermediaries, on the parties’ trust, in whose hands it lies. ad hoc commercial arbitration is the object of bias and a notable lack of interest on the part of many counsels and arbitrators who prefer institutional arbitration under the aegis of recognized arbitration centers. It is still regrettable that many academics do not show more curiosity for ad hoc commercial arbitration, which is relegated to the rank of "poor relative" of commer-cial arbitration. Practitioners are less disdainful! As François Muller rightly observes: “[ ad hoc] arbitration remains relatively common in commercial matters, [because of its real or supposed advantages:] great flexibility in the definition of procedural rules, limited costs re-sulting from the mastery of these rules and mechanically saving those of an institution, and, finally, perhaps, greater confidentiality.” The purpose of this article is to try to understand, beyond the myths, the reality of ad hoc commercial arbitration, to present its advantages and disadvantages with respect to insti-tutional commercial arbitration, and to highlight the precautions to be taken in its practical implementation.
Over the last decade, commercial arbitration undeniably progressed towards more diversity on its ... more Over the last decade, commercial arbitration undeniably progressed towards more diversity on its arbitral tribunals. Mainly geared towards gender, ethnic and age, increased diversity was the result of a determined and relentless push by interest groups, themselves a product of the arbitration ecosystem. However laudable, the debate around diversity falls short of considering arbitral proceedings’ goal and arbitration users’ interests which imperils the institution’s legitimacy and future. It is therefore urgent to reassess our understanding of diversity and frame it back with litigants’ needs. This leads us to recognize the relevance of «°professional diversity°» and more broadly how this «°relevant diversity°» can reconcile users’ interests and the promotion of gender, ethnic and age diversity.
Revue de droit des affaires internationales = International Business Law Journal, 2020
The new Rainbow Suite has so far attracted cautious if not sceptical reviews. Early commentators ... more The new Rainbow Suite has so far attracted cautious if not sceptical reviews. Early commentators have high-lighted the numerous and significant changes, both in form and content, resulting in more prescriptive and procedural contracts requiring greater contract man-agement from all involved. Few have identified the tox-ic nature of a number of these amendments which could result in more disputes, thereby defeating FIDIC professed purposes. «°Le mieux est l’ennemi du bien°» (best is the enemy of good) wrote Voltaire in La Bégueule ! The FIDIC new Rainbow Suite sadly exempli-fies the proverb translated by François-Maire Arouet. More words do not mean greater clarity, certainty, bal-ance and cooperation, as will be exposed. The purpose of this article is not to provide a clause-by-clause com-mentary, but rather to point out the salient amendments that, in our opinion, have been bettered, worsened or left unchanged. While this article mostly focuses on the FIDIC Yellow Book, the author’s findings, analysis and conclusions largely apply to the Red and Silver Books given proximity of content between the different con-tracts comprising the Rainbow Suite.
The Contract Manager function was created and developed in the context of large-scale long-term p... more The Contract Manager function was created and developed in the context of large-scale long-term projects in the energy, construction and utilities fields. A key player within the Project Team, the Contract Manager drafts, negotiates and follows-up contracts, identifies and offers solutions to mitigate contractual risks, tries to create and/or use contractual opportunities, advises and assists the Project Director as well as the other members of the Project Team in defining and implementing an appropriate contractual strategy. For that purpose, the Contract Manager needs to demonstrate a wide range of skills : he must be organized and rigorous, be able to draft and negotiate various documents, and more importantly be a team player. The relative lack of competent and motivated Contract Managers make their training and recruitment a challenge for the industries using them.
Uploads
Papers by Guillaume FELD