Salans´ Global Real Estate Client Report, Fall 2009

Contents

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Shape of the Road to Recovery – "L", "U", "V" or "W"?

Note from the editor
By Eric Rosedale

The state of the health of the global real estate industry is a matter of much debate and speculation following an unprecedented period of turmoil trigged by the sub-prime crisis in the US more than two years ago. Investors are asking whether we are now facing an "L", "U", "V" or "W" shaped recovery. There is no consensus view, and every pundit has a theory.

In the private equity sphere, we are seeing a growing divide between funds targeting developed and emerging markets, with the weight of available capital still favoring larger, more transparent markets with less perceived country risk. Ironically, this is leading to what some observers already see as an "overheating" of sub-markets such as the London office sector where pricing is being buoyed by a rush of foreign investors in the belief that we are at or near a bottom of the UK recessionary cycle.

The trend away from "risky" markets is leaving room for more local - to - local deal making, as local players don't have to answer to wary investment committees, often take a longer term view and don't require a large country risk premium.

Ultimately, it will be the banks that will set the price benchmarks going forward. Outside of the US, banks have been in no rush to pressure troubled borrowers. This is largely because they still don't have REO programs in place and need to deal with more pressing balance sheet and strategic issues in their "home" markets. This situation is unlikely to last much longer if the commercial real estate industry in markets outside of the US begins to experience the same sort of occupational difficulties that are beginning to drive US banks to "take back the keys" from defaulting borrowers.

If the US real estate market is a sign of things to come, then more markets are likely to follow a "U" or "W" (double dip) shaped recovery, within a second wave of price reductions to come. By way of comparison, prices in the US have reportedly dropped 35% below their peak in October of 2007 and rents have fallen by more than 16% - far deeper than what has been experienced in most European markets.

Russia is an interesting illustration of what has happened in an emerging market where real estate transaction volumes fell off a cliff after years of robust growth. Even with a recovery in commodities prices and a glimmer of hope that the US economy will begin to lead a global recovery, it's far too soon to break out the vodka and caviar to celebrate the beginning of a "V" shaped recovery. Structural problems in the Russian economy, persistent high unemployment and a large backlog of short term corporate debt that needs to be re-financed is making any recovery to come look more like a "U" than a "V" and hopefully not an "L".

While private equity combined with abundant debt fuelled real estate markets like Russia, the private equity industry suffered its worst year on record in 2008 and some real estate funds are in deep trouble. More conservative funds have moved large emerging markets such as Russia and China (and smaller markets with structural fiscal deficits such as Ukraine and Turkey) off their lists of regional targets. In Russia, India and China committed investors will wait to see some benchmarks on price corrections, and the general consensus is that there is still a significant gap in pricing expectations, with not enough of a risk premium to whet their appetites. This is another indication that we may be in for a "U" shaped recovery in many emerging markets.

On the distressed side of the coin, not much is happening in outside of the US - yet. Unlike the US where waves of distressed real estate are beginning to come on the market, other markets are still in denial. For example, European commercial property owners are facing a debt "time-bomb" with many sectors expected to be in negative equity for many years to come and a massive CMBS re-financing requirement to deal with. This is largely unchartered territory, where restructuring, foreclosure and banking laws and regulations will be tested in developed and emerging markets alike.

Other observers believe that emerging real estate markets have the potential to recover faster and further than developed markets, especially compared to those developed markets with large fiscal deficits, more highly indebted consumers and deeper supply and demand problems in their commercial real estate markets. This optimism for a "V" shaped recovery is especially evident in China where there is still relatively high GDP growth; favorable demographics for virtually all sectors of real estate and huge foreign reserves available to stimulate the economy.

The amount of cash allocated to real estate waiting on the sidelines has been difficult to measure. In the private equity sphere, there has been a degree of successful fund raising targeting distressed assets and debt with more to come, especially as equity markets recover which should ease the impact of the denominator effect. Ultimately, savvy investors with a long term commitment to their markets of choice will be glad to see that much of their competition has disappeared. This will be a painful reality for banks and other sellers that are forced to put product on the market, but it's an essential first step on the road to recovery, whether it be in the shape of an "L", "U", a "V" or a "W".

Arbitration Practice Overview

Arbitration Or Litigation? A Practical Perspective

• Resolving Disputes in International Real Estate and Construction Projects Using Arbitration
• Practical Tips for Management of Real Estate Disputes
• Bilateral Investment Treaties - An Added Source of Protection

Our Approach

In many instances, the client's interests are best served by resolving a dispute before it evolves into a litigation or arbitration. Salans attorneys are experienced in a wide range of alternative dispute resolution techniques, including third-party mediation, dispute resolution boards and other means.

We ensure that our clients receive quality service teams comprised of partners and associates at the right level of experience and expertise to maintain a competitive pricing approach. We enhance our ability to advise and act for our clients with the multi-lingual capabilities of our lawyers.

Salans attorneys assist clients in disputes arising under, or involving, both common law and civil law systems. With an average annual case load of over 60 active arbitration cases, members of our International Arbitration Practice Group have acted in hundreds of international arbitrations before all of the principal international arbitration institutions of the world in London, Paris, New York, Washington D.C., Stockholm and The Hague, as well as before arbitral tribunals in a number of other jurisdictions.

Our Advice Covers Specialised Sectors

Our cases involve a broad spectrum of commercial, contractual, and bilateral investment treaty disputes. Within these areas, our experience spans a variety of business sectors and sovereign States.

• Automotive
• Banking & Finance
• Energy & Natural Resources
• Leisure & Hospitality
• Life Sciences
• Information Technology
• Luxury Goods
• Media
• Private Equity & Venture Capital
• Real Estate & Construction
• Retail
• Telecommunications

What Others Say

Amongst other recognitions, Chambers Global Legal praises Salans' arbitration group for the "proactive approach of their partners, their clear documents, and the highly responsive attitude of the entire team."

Chambers also reported "clients say the lawyers here "exceed expectations in all categories"". In 2009, the American Lawyer Magazine (Focus Europe 2009) singled out a EUR 1.83 billion (US$ 2.29 billion) award obtained by Salans for one of its clients as the highest award obtained by a law firm in recent years. That award is one of the highest arbitral awards ever.

Arbitration or Litigation? A Practical Perspective
By Barton Legum

This short note outlines a structure for addressing the binary choice at the threshold of any dispute resolution clause: litigation in the courts, or international commercial arbitration?

Step 1:

Is there really a choice?

The first step is to determine whether there is, in fact, a choice to make. Local law may grant exclusive jurisdiction to local courts and not permit arbitration at all, particularly for real estate transactions.

However, it may be possible to structure the transaction to retain arbitration. For example, in many jurisdictions there is no impediment to arbitrating disputes about the purchase or sale of shares in a company holding real estate. Structuring the transaction as an acquisition of the shares of the holding company rather than of the underlying real property assets may bring the choice between arbitration and litigation back into play.

Step 2:

Evaluate the effectiveness of the litigation option

Arbitration is almost always a dependable means of enforcing rights under a contract. Can courts be similarly relied upon?

a. Are the courts reliable and convenient?

The first question is whether the courts in question are up to the task of resolving disputes under the agreement. Courts in many developing countries may not yet be capable of resolving complex business disputes because of unsettled law or systemic issues.. The courts of some developed countries may also not be desirable, whether because of large case backlogs or judges inexperienced with business realities.

b. Would a judgment of the court be enforceable?

The enforceability of foreign court judgments varies considerably from one country to another because, unlike arbitration, there is no international convention to recognise and enforce awards.

To give but one example, in a recent transaction an Italian company proposed the Swiss courts as the forum to resolve disputes with a US company under a confidentiality agreement. This choice would not favour the Italian company. This is because Italian courts recognise and enforce Swiss court judgments (under the Lugano Convention) but there is no similar agreement between Swiss courts and the US law generally requires its local courts to defer to foreign money judgments, but not to judgments granting injunctive or other non-monetary relief. Of course, for a confidentiality agreement that is precisely the kind of relief that is most important. The Italian company's proposal thus offered effective enforcement in Italy to its US counterparty, but provides no effective means of enforcement for itself in the US

c. Is the court convenient?

Arbitration offers the possibility for the parties to design a dispute resolution agreement tailored to language, the location of hearings, the applicable law and the procedure itself. By contrast, there is little flexibility in courts on any of these subjects save the applicable law. Even then, some courts are good at applying foreign law and some are not. While not as essential as the first two questions, the question of convenience bears some consideration as well.

Step 3:

The cost factor

Arbitration tends to be comparable in cost to litigation in US and UK courts but more expensive than litigation in the courts of continental Europe or developing countries. Arbitration is relatively expensive because the parties must fund the equivalent of judges and court clerks - the costs of the arbitrators, the rooms where hearings will be held and the administration of the case. The ICC has estimated that arbitrator fees amount only to about 20 percent of these costs with the remainder taken up by counsel and expert witness fees and disbursements.

The cost, quite logically, increases with the number of arbitrators. Three arbitrators is the preferred option for larger cases; for smaller or for urgent cases a sole arbitrator can be the best choice. If one chooses the rules of an arbitration institution (such as the ICC, the LCIA or the AAA) and does not specify the number of arbitrators, the institution will select the number of arbitrators it deems to be appropriate for the case.

Also keep in mind that almost every set of arbitration rules allows the arbitration tribunal to award the costs of the case (including attorney's fees) to the winning party.

What does cost mean for the choice between arbitration and litigation? Basically, that arbitration is not well suited for very small disputes. Disputes under USD 200,000 can only with considerable effort and some luck be handled cost-effectively by arbitration. Those in the USD 200,000 to USD 500,000 range are marginal. Litigation should be seriously considered for contracts where the amount in dispute falls into these ranges unless they involve a point of principle that is more important to the client than the dollar amount.

Step 4:

Evaluate the effectiveness of the arbitration option

The widespread acceptance of the United Nations New York Convention on the Recognition and Enforcement of Arbitration Awards, means foreign arbitration awards are generally easier to enforce than foreign court judgments. But arbitration does not provide an established summary adjudication procedure comparable to those available in a number of national courts for specific categories of cases like the summary judgment procedure in US practice or the commandement a payer in French practice. So court procedures can, in the specific categories of cases for which they are available, achieve a speedier and more effective disposition than an ordinary arbitration – assuming that the local court's judgment can be enforced in the relevant jurisdiction.

As this short review shows, deciding on arbitration or litigation is in many cases not such a simple choice. Careful planning before making the decision is required to ensure that a transnational contract is enforceable.

Resolving Disputes In International Real Estate And Construction Projects Using Arbitration
By George Burn and Jo Clarke

Arbitration is the principal means for those involved in large projects to deal with disputes that cannot be resolved amicably. Contracts for international real estate and construction projects often require that disputes between the contractual parities are ultimately to be settled by arbitration; the FIDIC standard contract form used in construction projects, for example, provides for ICC arbitration.

In this article we introduce arbitration and the rules commonly applied in international real estate and construction arbitrations. We also provide suggestions about making arbitration, which is often very complex, less time-consuming and more cost-efficient.

Arbitration and its advantages

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision (the "award"). By agreeing to arbitrate, the parties choose a private dispute resolution procedure instead of going to a national court.

Enforcement of international arbitration awards is based on an international convention (the New York Convention of 1958) which is in force in more than 150 countries and thus provides a solid (though not necessarily perfect) regime for enforcement. It means awards are usually easier to enforce from one country to another than court decisions which are generally subject to a much more limited matrix of bilateral agreements, though judgments of courts within the European Union are easily enforced in other EU member states.

Foreign enforceability is extremely important for the winning claimant if the losing party's assets are located in a different country. There is little point going through the arbitration process only to find it is impossible to translate the award into tangible compensation.

Arbitration can also be more flexible than court proceedings. For example, the parties are generally able to choose their arbitrators, or at least influence their selection. This means they can ensure that the arbitrators have the necessary skills and knowledge (for example a background in construction or engineering) to decide the dispute. Also, unlike proceedings in national courts, the parties can chose the rules and procedures which will apply.

Arbitration is considered to be more "neutral" than court proceedings because arbitration generally takes place in a country which has no connection to either party. This can lessen the parties' concerns about bias in national courts. Commercial arbitration proceedings are also often covered by duties of confidentiality, whereas court proceedings usually take place in the public domain. Confidentiality may be a significant advantage.

The arbitration process

The arbitration process can vary considerably depending on a number of factors including the nationality and legal background of the parties and the arbitrators. For example, parties or arbitrators from common law jurisdictions such as the US, India, the UK, South Africa, Canada, Australia, New Zealand, Ireland, Anglophone Africa have different legal traditions than civil law jurisdictions like continental Europe, Russia and the CIS, China, Japan, Francophone and Lusophone Africa.

There are, however, three common elements to the arbitration process.

(1) the arbitration agreement, (2) the reference to a third party for determination of the dispute, and (3) the award by the third party.

1. The arbitration agreement requires that the parties consent to contract out of their rights to take disputes to court. The agreement must therefore be created to provide the arbitrators with jurisdiction to decide the dispute. The arbitration agreement is also different to most other terms of the contract because it usually "survives" termination of the contract. The content of the arbitration agreement is considered below.
2. The arbitral tribunal to which the dispute has been referred must arrive at a decision in accordance with the law chosen by the parties, and in accordance with the arbitration procedure applicable to the dispute. The tribunal must act fairly and impartially and must comply with the requirements of due process. The rules and procedures applicable to arbitration proceedings are reviewed below.
3. The arbitral tribunal is required to reach a final and binding decision (award), unless the parties settle the dispute by agreement.

What rules apply to international real estate and construction arbitration?

There are no hard and fast rules governing international real estate and construction arbitration and none that apply automatically. Often the parties decide on a set of rules at the time the arbitration agreement is concluded.

The parties can decide on institutional arbitration. This is generally more efficient than arbitration without the involvement of an institution (known as "ad hoc arbitration"), particularly because the institution may help appoint arbitrators. The arbitration is conducted in accordance with the institution's arbitration rules. The institution will also help to keep the arbitration on track and may scrutinise the award before it is issued to help ensure successful enforcement.

Institutional arbitration organisations include the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Stockholm Chamber of Commerce (SCC), or various regional arbitration organisations such as, in Asia, the Hong Kong International Arbitration Centre (HKIAC) or Singapore International Arbitration Centre (SIAC).

There are disadvantages in involving an institution. For example, institutions usually require that the parties make up-front payments. This can, in the case of ICC arbitration, involve single, large payments, whereas payments to the LCIA and some other organisations can be made over time. Parties must also contribute to the institution's administrative costs. But choosing ad hoc arbitration to avoid these issues can be false economy, as in the end ad hoc proceedings often prove more expensive than institutional arbitration.

If the parties instead choose ad hoc arbitration, they may still decide that certain rules will apply, such as the UNCITRAL Arbitration Rules, or the default rules applicable in the jurisdiction in which the arbitration takes place, for example the rules set out in the English Arbitration Act 1996. Such rules will be administered by the arbitral tribunal itself and not by a specific institution. Selection of arbitrators in an ad hoc proceeding is of critical importance, as there is no institution available to the parties to intervene with the Tribunal if difficulties are encountered in the performance by the Tribunal of its functions.

There are no pre-ordained rules of procedure or evidence in international arbitration, so the arbitrators and the parties can adopt procedures appropriate to the circumstances. That said, the International Bar Association's Rules for the Taking of Evidence in International Commercial Arbitration provide a gold-standard for evidential issues in international arbitration, and represent an attempt by arbitration practitioners from civil and common law jurisdictions to find common ground on evidential issues. The resulting code provides a useful framework, and is often adopted in both institutional and ad hoc international arbitration.

How can the arbitration process be more efficient?

If the parties to international real estate and construction contracts choose arbitration as the dispute resolution process, it is worth taking time to ensure that the process will be as efficient and effective as possible since control over the process is one of the key advantages of arbitration.

A useful reference for specific issues raised by international construction arbitration and the management of the arbitration process is the ICC's Report on Construction Industry Arbitrations published in 2001.

The arbitration agreement itself

Careful drafting of the arbitration clause is essential. An effective, cost-efficient and timely arbitration process starts with a well-drafted clause. A badly drafted arbitration agreement can cause endless difficulties including parallel litigation in national courts.

Ideally, the arbitration agreement should specify the rules applying to the arbitration, the number of arbitrators, the place where the arbitration will take place (the "seat") which in turn will govern the law applicable to the arbitration procedure, and the language of the arbitration. For high-value real estate and construction contracts, where the potential disputes are large and complex, the use of three arbitrators is normal.

Many construction projects involve multiple parties, such as employer or developer, main contractor, and subcontractors. Similarly, other real estate projects often involve a complex interplay of parties and multiple interrelated contracts. The dispute resolution clauses must take this into account. This can help ensure satisfactory resolution of cost, consistency of decisionmaking, and access to relevant evidence and confidentiality.

Most of the commonly used standard forms of contract for international real estate and construction projects include fairly robust arbitration agreements, and one should be careful before departing from such wording or risk the consequences of a dysfunctional dispute resolution process.

Selection of arbitrators

One of the advantages of arbitration is that the parties can choose or nominate arbitrators. Careful consideration should be given to the choice of arbitrators, who must have the skills and knowledge required to decide the dispute in question. Particularly in construction disputes, the candidate should have specific prior knowledge and experience in construction arbitration, as construction arbitrations often involve issues that are complex factually, legally and technically, with the possibility of many different claims and counterclaims. The candidate should also be familiar with construction contracts and possibly have a background in the construction or engineering industries. In any arbitration, the arbitrators chosen should have strong case-management skills since pro-active case management and good communication is key to controlling time and cost in arbitration.

Timetable and hearing date

Once the arbitral tribunal is constituted, it should communicate with the parties to establish the arbitration timetable. The timetable should be realistic and give the parties some breathing space, for example, to allow the parties to consider settlement. A hearing date should be set well in advance otherwise the diaries of the arbitral tribunal, the parties and their representatives may become too full.

Splitting up a case

In real estate and construction arbitrations it is common for questions of liability and quantum (how much the claim is worth) to be determined separately. If liability is not established, quantum will not need to be considered, so splitting the proceedings into phases may save costs. Moreover, parties often agree to settle a case after a decision on liability has been given but before the next phase on quantum begins. The arbitral tribunal should make sure, however, that it is sensible and cost-effective to deal with liability and quantum separately since splitting up a case this way may extend the time taken to complete the arbitration – an extended timeline may serve the interests of a respondent party but usually not the claimant party. The tribunal will often need to balance the competing pressures for proper management of the process.

Documents

Real estate and construction disputes are often large and complex, and require the consideration of large quantities of correspondence, documents and records. Construction projects, in particular, tend to generate huge numbers of very specific and technical documentation relevant to the disputed claims. Accordingly there is a danger of excessive document production in the arbitration which can drastically increase the duration and costs of a case. Document disclosure can be a wideranging and costly process because most documents are held in electronic form (including amended or deleted versions and the file's metadata) located in a wide variety of places including servers, PCs, disks, flash drives and memory sticks, and PDAs. Conversely, well-targeted electronic searches, using lists of search terms relevant to the issues in dispute, can streamline the document search.

To guard against the danger of disproportionate document searches and production, the arbitral tribunal, with the parties, should agree early on how to control the number of documents produced in the arbitration. This might be accomplished, for example, by agreeing only to produce documents relevant to the issues as defined by the arbitral tribunal and necessary for a party to prove its case or dispose of the other party's case. For efficient document production, there should also be agreement on the form (electronic, written) in which documents are to be produced.

Witness and expert evidence

In addition to contemporaneous documents, evidence can also be provided by witnesses of fact and expert witnesses. Witnesses of fact will often give evidence in a written statement and may then also be questioned by counsel and the tribunal at a witness hearing. Where there are specialised technical issues, the tribunal may permit the parties to produce evidence from an expert. These experts should be distinguished from consultants that may assist a party in the preparation of a claim from an early stage in fields such as programming and delay analysis. An expert may give evidence in a written statement and/or in oral evidence to the tribunal at a witness hearing. The tribunal may also require the parties' experts meet to identify the technical issues on which they agree and/or disagree. This can help to narrow the issues between the parties. Increasingly, arbitral tribunals use a process of "witness conferencing," in which experts from both parties are questioned by the arbitral tribunal at the same time, so that the arbitral tribunal can explore with the experts any differences in their opinions.

Other procedures

Other procedures may be used if, for example, the dispute involves claims regarding defects in the works or delay analysis. Here, a site visit and/or testing of plant, equipment or work, and careful use of critical path network techniques may be necessary, respectively.

Summary

Disputes which arise under international real estate and construction contracts can be effectively resolved by arbitration. Arbitration has distinct advantages over litigation proceedings in national courts, especially in relation to enforcement of the arbitral award in other countries, and flexibility of the process.

To ensure that arbitration is as effective and cost-efficient as possible, care should be taken with the wording of the arbitration agreement and the choice of arbitrators. A pro-active and experienced arbitral tribunal is key to ensuring effectiveness and cost-efficiency. The procedures used in arbitration can, and with an experienced arbitral tribunal should, be tailored to the dispute in question.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.