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Arbitration, Jurisdiction and Culture: Apropos the Rules of Prague

Kluwer Arbitration Blog - Sun, 2018-07-15 17:07

Paula Costa e Silva

On the occasion of the German-Portuguese International Arbitration Symposium  experienced practitioners in international arbitration described what is going on in their national systems and, to some extent, what is going on in the world.

Following Duarte’s introduction and as announced in this conference’s program, Klaus Peter Berger, in his brilliant keynote speech on Civil vs Common Law in International Arbitration – The Beginning or the End? gave a complete and exhaustive overview of the possible impact of the Rules of Prague. On this same blog, Guilherme Rizzo Amaral, a Colleague from Brazil, when comparing the IBA and the Prague Rules, states: “The Prague Rules and the IBA Rules are examples of soft law.” Borrowing the expression from Bryan H. DRUZIN, Why does Soft Law have any Power Anyway?, Asian Journal of International Law, vol. 7/no. 2, (2017), pp. 362-363, Guilherme goes on saying that, in order to succeed, soft law needs to bridge gaps, not burn bridges. Its strength rests upon its network effects: the more agents rely upon the soft law, the more it acquires power.

Aware of these facts, I have chosen to address some topics I brought together under the title Arbitration, Jurisdiction and Culture.

First, arbitration must observe the fundamental principles of jurisdiction, under the clause of the principle of due process of law: the right to be heard and the right to a fair trial. Without diminishing the relevance of international civil procedure, arbitration was beyond reasonable doubt the longa manus of international trade, the instrument that enabled the rational allocation of financial resources, notably in countries where State courts are said to be ineffective and/or partial. The civil procedure was, by its nature, so straightly attached to the concept of sovereignty (let us remind the dominance, in Europe and for centuries, of the canon law procedure) that it was of little use in resolving the conflicts involving huge corporations that traded in foreign markets.

Secondly, having observed and studied for 30 years the evolution of arbitration, mainly international arbitration, civil procedure in Europe (the publication of the CPR, the constant amendment of the regulations on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters as the political and economic Europe became larger in its frontiers)  arbitration became the cosmopolis for justice in a substantial way.

If there is an institute where the differences between legal traditions are substantial, it is the institute of liability; here one cannot even find a unique civil law tradition, opposed to a common law one. And what can be noted in arbitral awards deciding on damage, imputation, causation and causation tests, liability? If I’m not mistaken and despite the tribunals refer to the applicable law, considered as a fact, as is typical in civil law systems (art. 7 RofP), tort law, here taken in a broad sense, becomes a sort of supranational liability law. With the advantages and risks such an approach bears in itself. And when we look at the proceedings, the phenomenon is even more striking: proceedings are all very much alike, no matter where the arbitrators come from. Arbitration is the cosmopolis for Justice, English became its mother tongue and its terms the new legal Esperanto; Arbitration is the new level playing field for jurisdiction.

Recently, I was asked to gather the experience of the world’s key arbitrators from different legal cultures on some of the most sensitive IBA Rules on the taking of evidence, my findings where that: the interviewed practitioners gave me almost the same answers whatever their legal background was.

Thirdly, arbitration is culture. As a species of adjudication, arbitration must comply with the clause of due process, I cannot forget that this clause is the result of a cultural evolution and the reflex of a given cultural subsystem. As we all know, even nowadays the due process clause does not have common contents; and for that we politely never refer to the unspoken dissensus under an imaginary consensus when invoking this clause. Furthermore, we cannot forget that the rights to be heard and to a fair trial are superseded in legal cultures where the access to the reality doesn’t depend on the confrontation of the parties’ versions on the facts, but from revelation. And although, as Taruffo explained in his so interesting paper Cultura e Processo, I couldn’t say what the word culture accurately means, one thing can be taken for granted: the evolution of a culture, here understood as the set of philosophical, political and moral beliefs and ideas existant in a society. As Max Planck once said, a new idea will not impose itself by virtue of its correctness but when the generation who defended the one that is being overruled dies.

But what  is the relevance of this bunch of reflections?

Let me go back to the beginning: the Rules of Prague in its relation to the IBA Rules. When considered per se, the Prague Rules on the taking of evidence it is easy to understand them and to accept the main political option underlying: the way powers and burdens are allocated to the parties and the decision maker is exactly the same than in certain civil procedure systems. And let me unravel one of the most gnawing misunderstandings. When those, stemming from the civil procedure, speak about the similarities between adjudication by an arbitrator and adjudication by a state court, they are not talking about certain provisions of a specific civil procedure code. The argument is much more complex than that; what is being referred to, is the legal theory on adjudication construed after the analyses of the legal system considered.

Why are the Prague Rules familiar to me? Simply because they have different rules that underline the powers of the arbitrators. First, in Article 2, the proactive nature of the role of the tribunal. In addition, Article 3, launches a bridge to the Untersuchungsmaxime, one of the most relevant instrumental principles characterizing an adjudication system. Article 7, unties the tribunal from the Dispositionsmaxime in what concerns the law, a maxime that is applied in such an awkward manner in international arbitration that I have caught myself thinking lately whether or not the arbitrators, while deciding a case, should feel themselves bound to the excerpts of the legal authorities submitted to them, considering they are barred from reading the whole book or other books!

In this digression we will get to a hot topic in international arbitration: the statute of foreign law in connection to the principle iura novit arbiter. The Rules of Prague explicitly affirm its validity. But one cannot forget that the foreign law, the one that is applicable to the merits by neutral arbitrators (wherefore third parties to legal system they will have to apply), must be proven by the parties. Let us underline this topic again: in international arbitration, the applicable law isn’t international law; the applicable law is typically national law to, at least, one of the parties and foreign law at least to the president, if not to the majority or all the arbitrators.

Under the Rules of Prague, the arbitrator, as the judge, explicitly plays the game; he is not a simple onlooker. Can we really say that the arbitrator is a simple onlooker when playing the game by the IBA Rules? I think we cannot draw this conclusion solely from the text of the rules. However, one thing can be said: the IBA Rules on the taking of evidence seem more agnostic than the Prague Rules. The Prague Rules are fitted to conflicts involving adjudicators from, at least, similar civil law systems that have to apply substantive civil law. The IBA Rules on the taking of evidence, just one piece of the puzzle that is adjudication, will probably be considered more adequate if the conflict involves different legal traditions.

In his paper, which I have already mentioned, Guilherme Amaral has a critical approach to what he considers a climate of confrontation between different legal cultures that the IBA Rules tried successfully to supersede. At this level, his words are harsh and one can understand his reasons: as the IBA Rules are agnostic, one could have considered introducing any changes considered necessary thereto instead of creating a new set of them. This was not the choice of the group who proposed the Rules of Prague: in their initial version they were presented as Inquisitorial Rules on the taking of evidence. The opposition to the so said Adversarial Rules on the taking of evidence is explicit; the opposition between legal traditions is emphasized.

From a methodological point of view, I suppose the Prague Rules must be evaluated from the angle of the rules themselves, of their ability to solve problems in the best way one can idealize; the political statements or intentions that justify or determine their enactment must be placed in second. Law is politics and politics can lead both to war and to peace. So let us never forget that leges silent inter arma. And let us look at the Prague Rules as a set of dispositions on the taking of evidence bearing in mind that they will prove to be intelligent if they prove capacity of adaptation. Their starting point is very clear: they were set up to correct the excessive Americanization of the IBA Rules, the one that I could not trace in the answers I got to the questionnaire. The Prague Rules are the newcomers in arbitration; and they entered the ballroom with noise. Dealing with the new is always defying. Albeit their historical roots, resistance and confrontation will be part of their history. Let them tread their path under the sign of Saint Augustine: ”Patience is the companion of wisdom.”

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The post Arbitration, Jurisdiction and Culture: Apropos the Rules of Prague appeared first on Kluwer Arbitration Blog.

Senior-level hires and promotions for the week of July 16, 2018 - Miami Herald

Google International ADR News - Sun, 2018-07-15 14:26

Miami Herald

Senior-level hires and promotions for the week of July 16, 2018
Miami Herald
He previously owned an alternative dispute resolution practice that specialized in commercial disputes, which he has now merged with Kelley Kronenberg's mediation practice. He also teaches courses on mediation advocacy at the law schools of Florida ...

The President’s Negotiation Skills…

ADR Prof Blog - Sun, 2018-07-15 13:07
In advance of the meeting with Russian President Vladimir Putin, colleague Marty Latz published this column in Politico this week:  Why Trump’s Aggressive Tactics Make Him a Less Effective Negotiator.  Marty argues, after studying his entire career, that while Trump touts his negotiation skills and thinks that this meeting with Putin will be his easiest, he … Continue reading The President’s Negotiation Skills… →

The 2018 Hungarian Arbitration Act: Implications of the New Setting Aside Provisions

Kluwer Arbitration Blog - Sun, 2018-07-15 03:02

Ioana Knoll-Tudor

Jeantet

On 17 May 2018, the Central European University and Jeantet co-organized a conference to discuss the new Hungarian Arbitration Act (the “New Act”), following the first months of its entry into force on 1 January 2018 (the “Conference”). The Conference was held in Budapest and the organizing committee was composed of Csongor Nagy (CEU, University of Szeged), Davor Babic (CEU, University of Zagreb), Markus Petsche (CEU) and Ioana Knoll-Tudor (Jeantet, Budapest & Paris). The debates were divided into four panels in which selected issued raised by the New Act were discussed by speakers practicing in Hungary and in other regional and international jurisdictions.

Closing the debates, a panel composed of Zsolt Okány (CMS, Budapest), Moritz Keller (Freshfields Bruckhaus Deringer, Vienna) and Philippe Cavalieros (Simmons & Simmons, Paris) and moderated by Ioana Knoll-Tudor examined in detail the modifications brought by the New Act in relation to the setting aside proceedings. Three specific novelties of the New Act have been addressed by the panel, namely (1) the suspension and rectification of setting aside proceedings, (2) the effect of setting aside an award on the arbitrators’ fees, and (3) the stay of enforcement of the award during the setting aside proceedings.

1. The Suspension and Rectification of Setting Aside Proceedings

Although based on the UNCITRAL Model Law as amended in 2006, the New Act brought significant changes to the provisions applicable to Hungarian commercial arbitration. It notably introduced the possibility for State courts to suspend setting aside proceedings to give the arbitral tribunal an opportunity to eliminate the grounds for setting aside. Building upon Article 34(4) of the 2006 UNCITRAL Model Law, Section 47(4) of the New Act reads as follows:

“At the justified request of either party, the court may suspend the hearing in the proceedings for the setting aside of the arbitral award, for a maximum of 90 days so that the arbitral tribunal, within the limitations set by Section 46, may re-initiate the arbitral proceedings or undertake any other procedural measures with which, in the opinion of the arbitral tribunal, the cause of invalidity can be eliminated. In this case, the arbitral proceedings terminated by the award shall continue for the purpose and duration determined by the court. The setting aside of the award adopted in the re-initiated arbitral proceedings may be requested by an amendment of the claim or by a counterclaim within 60 days from the receipt of the award.

1.1 The Duration of the Suspension

As discussed by the panel, the duration of the suspension of the setting aside proceedings is not certain. While the court may suspend the proceedings “for a maximum of 90 days“, the arbitral proceedings can also be re-initiated and continue “for the purpose and duration determined by the court“. It is, therefore, not clear whether the court may extend the suspension beyond 90 days. According to one panelist, the duration of the suspension is flexible since the purpose and duration of the suspension are determined by the court. For another, however, 90 days should be mandatory since the purpose of the suspension is precisely to offer to the arbitral tribunal a possibility for a short and effective review of the award. If the ground for setting aside was lack of due process, would 90 days be sufficient to address such a question (especially in a large arbitration)? Should the court fix the time limit, or should this be left to the agreement of the parties? From an arbitrator’s perspective, there is a logistical issue: while arbitral institutions such as the ICC require prospective arbitrators to provide their availabilities for the two years following their appointment, under the New Act, the unplanned commitment of an arbitrator would be requested for a period of 90 days in order to render a fully-fledged decision. As noted by one panelist, this situation is similar to that of an emergency arbitrator, except that the arbitrator may not be alone, in case of a three-member panel.

1.2 The Mission of the Arbitral Tribunal

Section 47(4) of the New Act also suggests that judges may interfere with the mission of the arbitral tribunal. No further clarification is given as to how exactly State courts should remit the challenged award to the arbitral tribunal. However, judges should refrain from specifying the issues to be reviewed or from indicating their thoughts on the validity of the award, since the arbitral tribunal should decide by referring to the statement of claims in the annulment procedure. Yet, some judges’ attitude could infringe the principle of absence of State court’s intervention in the arbitral process. Moreover, since there is a risk for arbitrators not to be in position to be paid their fees if the award is set aside (as it will be discussed below), if a State court enjoins an arbitral tribunal to carefully review a specific issue, arbitrators would probably feel compelled to comply with such indication in order to secure the enforcement of the award and their full payment.

1.3 Article 34(4) of the 2006 UNCITRAL Model Law in Other Jurisdictions

The purpose of Article 34(4) of the 2006 UNCITRAL Model Law is to offer an opportunity to “save” the award and similar provisions are found in the Netherlands (Article 1065a of the Dutch Code of Civil Procedure) and in Belgium (Article 1717.6 of the 2013 Law on Arbitration). In Germany, courts can remit the award to the arbitral tribunal without suspending the setting aside proceedings: rectification by the tribunal will occur instead of the annulment procedure before the courts. French law does not provide for a suspension of setting aside proceedings. Without going as far as the New Act, French law alleviates the risk of setting aside an award by dismissing as valid grounds for annulment some legal requirements of the arbitral award (e.g., lack of the arbitrator’s name or lack of the date the award was rendered).

2. The Effects of Setting Aside an Award: No Arbitrators’ Fees?

Section 57(2) of the New Act provides that, in the event an award is set aside, the arbitrators will not be entitled to their fees, irrespectively of the reason of the setting aside:

“If the arbitral award is set aside, the arbitral proceedings terminated by the set aside award shall be free from arbitrator’s fees, and the arbitral tribunal that adopted the set aside award shall not be entitled to a fee. In the continued proceedings following the setting aside, the parties shall not be obliged to pay administrative costs.

If some arbitral institutions, such as the ICC, introduced negative incentives for arbitrators if the award is not rendered within the allocated time (e.g., reduction of their fees), Section 57(2) of the New Act is of a different nature. As noted by the panel, this provision sanctions arbitrators for substantive matters over which they bear no control: While a delay in rendering an award may be directly attributable to arbitrators, only a few grounds for setting aside fall within the scope of arbitrators’ influence.

The panel has identified two main consequences of Section 57(2) of the New Act. First, in addition to the reimbursement of its fees, a party could claim it is entitled to the amount granted in the annulled award. By way of illustration, parties under French law often argue the loss of opportunity (perte de chance). In a 2015 decision, a 114 million award was set aside because it was rendered only once the time limit during which the tribunal was supposed to render its award had elapsed. After the setting aside, the parties had agreed to settle but one of them sued the arbitrators for the difference between 114 million and the settlement amount. French courts considered that, by settling, the parties had lost the right to sue for such a difference. Second, the obligation to reimburse the fees will inevitably create tensions among the arbitrators. The possible consequences of not complying with the procedural timetable could affect the serenity of the collegial decision-making process, even leading some arbitrators to withdraw from the tribunal. Through repercussion, more and more liability actions could be initiated by arbitrators against their colleagues. Similarly, the number of dissenting opinions could increase in an attempt for arbitrators to distance themselves from the content of an award that could be successfully set aside, triggering the reimbursement of fees. As a consequence, it could be more and more difficult to appoint arbitrators willing to sit on cases to which the New Act applies.

3. The Stay of the Enforcement of the Award During Setting Aside Proceedings

 While the previous Hungarian Act on Arbitration only referred to the possibility to suspend the enforcement of the award, Section 7(5) of the New Act supplemented this reference by adding a set of conditions that have to be met in order to obtain a stay of enforcement of the award during setting aside proceedings. These conditions are:

(i) the parties’ ability to bear the burden of the award’s enforcement, and

(ii) the likelihood of the party succeeding in the setting aside proceedings.

These conditions are similar to those required for granting an interim measure.

Conclusion

The aim of the Conference was to bring together Hungarian and international practitioners to discuss the possible implications of the New Act from a comparative perspective. Having entered into force only on 1 January 2018, the provisions of the New Act have not yet been tested in practice. Therefore, the international arbitration community will follow closely the evolution of these provisions and their interpretation by Hungarian courts and arbitral tribunals.

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How Should ADR Folks Participate in a Grand Real-Time Negotiation?

ADR Prof Blog - Sat, 2018-07-14 20:18
President Trump is scheduled to have a summit meeting with Russian President Putin on Monday.  The timing of this meeting right after the indictment of 12 Russian intelligence officials demonstrates the bizarre political situation we are in. Mr. Trump seeks a close relationship with a foreign leader whose top spies systematically interfered in our elections … Continue reading How Should ADR Folks Participate in a Grand Real-Time Negotiation? →

The Opportunity of a Lifetime: The Bahamas as a Centre for International Commercial Arbitration - Lexology

Google International ADR News - Sat, 2018-07-14 15:48

The Opportunity of a Lifetime: The Bahamas as a Centre for International Commercial Arbitration
Lexology
Essentially, arbitration is a method of alternative dispute resolution. Some of its benefits include – (i) greater privacy and confidentiality, (ii) speedier process, (iii) neutrality, (iv) greater party autonomy, and (v) finality of decisions. These ...

About Us - International Tax Review

Google International ADR News - Sat, 2018-07-14 06:42

About Us
International Tax Review
International Tax Review combines an up-to-date news and analysis service, focusing on Corporate, Indirect, Disputes and Compliance, with International Tax Review, the leading monthly publication about cross-border tax issues. ... Tax Disputes ...

The Future of Investment Arbitration in Europe: AIA Conference, June 2018

Kluwer Arbitration Blog - Sat, 2018-07-14 03:45

Iuliana Iancu

Also reporting: Chuba Nwokedi (Association for International Arbitration), Mateusz Rys (University of Antwerp), Maryam Salehijam (Ghent University), Anmol Sheth (Association for International Arbitration), Arthur Van Den Bossche (University of Antwerp), Antonia Zydek (University of Strathclyde)

It has long been said that investment treaty arbitration is at a crossroad. This is probably most true within the European Union, where a profound recalibration and reform of the system is underway. On 6 March of this year, the Court of Justice of the European Union (the “CJEU”) rendered its judgment in Case C-284/16 Slowakische Republik v. Achmea BV (“Achmea”), finding that arbitration clauses included in international agreements between the Member States providing for investor-State arbitration are incompatible with Articles 267 and 344 of the Treaty on the Functioning of the European Union (“TFEU”). The CJEU is also expected to issue shortly its Opinion 1/17 on a Request for an opinion submitted by the Kingdom of Belgium pursuant to Article 218(11) TFEU regarding the compatibility of Chapter Eight (“Investments”), Section F (“Resolution of investment disputes between investors and states”) of the Comprehensive Economic and Trade Agreement between Canada and the European Union (“CETA”) with the EU Treaties and fundamental rights. Adding more complexity to the debate, the United Kingdom is soon to withdraw from the European Union, which raises fundamental questions regarding the implications for the United Kingdom’s bilateral investment treaties (“BITs”) and, particularly, the Energy Charter Treaty (“ECT”).

These issues were explored on 1 June 2018 in Brussels by arbitration and public international law specialists during the aptly-titled conference “The Future of Investment Arbitration in Europe”, organized by the Association for International Arbitration (AIA).

The first panel of the conference discussed the possible fate of intra-EU BITs after the Achmea judgment and canvassed the options available to investors for the enforcement of their rights. Moderated by Prof. Nikos Lavranos, the panel included Dr. Anna Plevri (University of Nicosia), Dr. Richard Happ (Luther Hamburg), Andras Nemescsoi (DLA Piper Budapest) and Johan Billiet (Billiet & Co. Brussels). The first question that was addressed was the scope of the Achmea judgment and whether it was limited to the Netherlands-Slovakia BIT or it was applicable to other intra-EU investment treaties as well. A consensus appeared to emerge on the panel and in the audience that the CJEU’s findings will ultimately affect all arbitrations under intra-EU BITs, including ICSID arbitrations. However, some panelists considered that the ECT, as an international agreement to which the European Union itself is a party, remained at this stage outside the scope of application of Achmea. It was agreed that the Achmea judgment will prevent new cases from being filed on the basis of intra-EU BITs, but may also affect ongoing cases where either no award has been issued or where the State may still apply for the annulment or revision of an award upholding jurisdiction. It was added that, despite the limitations of the judgment, it is not certain that the CJEU will not in the future find fault with the substantive protections included in BITs or even with commercial arbitration. Looking at the options available to investors for the protection of their rights, the panelists explored whether domestic courts could be a forum for their claims. It emerged that no uniform answer to this question exists, as the courts of some Member States may be prevented from hearing such claims on account of the dualist nature of their legal systems. Mediation was explored as a possibility, with the caveat that in the absence of an enforceable dispute resolution mechanism, the incentive to use this tool may be considerably diminished. Other available options that were discussed included the conclusion of investment contracts, parliamentary lobbying and the restructuring of investments.

The second panel explored the degree to which the international arbitration landscape has changed due to greater gender, cultural and legal diversity. Moderated by Diego Brian Gosis (GST LLP Miami), the panel included Prof. Verónica Sandler (Austral University), Grant Hanessian (Baker McKenzie New York), Dr. Alejandro López-Ortiz (Mayer Brown Paris) and Saadia Bhatty (Gide Loyrette Nouel London). The panel looked into how women are represented in various types of disputes and made the provocative suggestion that gender should be used as a tool in making appointments to arbitral tribunals, in a way that is not too dissimilar to jury selection in the United States. The panel also explored the degree to which perceived cultural differences or stereotypes play a role in the appointment of arbitrators. It was agreed that, as best practices of the arbitration community are being developed, the differences in approaches between common lawyers and civil lawyers in arbitration have diminished. Where they appear to persist is with regard to evidence. For instance, in answer to the perceived common-law bias of the IBA Rules on the Taking of Evidence in International Arbitration, a draft of the Inquisitorial Rules on the Taking of Evidence in International Arbitration (or the “Prague Rules”) has recently been published. The panel discussed whether and how the Prague Rules could mark the beginning of a dialogue to recalibrate arbitration so that it can better reflect the needs of all its users.

The third panel, moderated by Dr. Todd Weiler and including Dr. Martins Paparinskis (UCL Faculty of Laws), Prof. Dr. Eric De Brabandere (Leiden University), Louise Woods (Vinson & Elkins London) and Robert Volterra (Volterra Fietta), looked into whether the proposed investment court model included in the CETA is compatible with European Union law and whether it could provide a useful template for investor-State dispute resolution. No consensus emerged between the members of the panel or in the audience regarding the compatibility of the proposed court with European Union law. In one view, in Achmea, the CJEU intentionally omitted to analyze a number of points so as to retain sufficient flexibility that would later allow it to find the investment court in the CETA compatible with the European Union treaties. In another, it is questionable whether the envisaged investment court could be considered a “court or tribunal of a Member State” so that it could be found compatible with the European Union treaties in light of Achmea. The panel also examined whether the proposed investment court answered the objections raised against the current investment arbitration system. Some members of the panel considered that the latter’s alleged pro-investor bias had no support in the statistics and debated whether creating a system where only States were in control of appointments was a solution to this perceived problem. The panelists considered that the perceived inconsistency between different awards was to some extent justified by the different wording employed in the multiple investment treaties that were applicable. Finally, there was some disagreement among the panelists about the review of awards under the CETA on the grounds of manifest errors of fact or law, some panelists strongly suggesting that it would result in a de novo review of the entire case and could not work towards the stated goal of improving cost and efficiency of these proceedings; others being less persuaded.

The fourth panel was moderated by Graham Coop (Volterra Fietta) and included Gordon Nardell QC (20 Essex Street), Kathleen Paisley (Ambos Law), Bernhard Maier (Squire Patton Boggs London) and Frederic Yeterian (Philax International (UK) Ltd). The panel concentrated on the effects on the ECT of the United Kingdom’s withdrawal from the European Union. A common thread during the discussions was that, at the moment, there is considerable uncertainty in the energy markets as a result of not knowing the terms of the withdrawal. The panelists were of the view that, until there is clarity on the United Kingdom’s position with regard to the treaties it benefits from, its relationship with the ECT is unlikely to change. The panel debated whether Achmea could apply in intra-EU ECT arbitrations and noted that presently there is uncertainty surrounding this point. In one view, the principles set out by the CJEU in Achmea are equally apposite in the ECT context, which could result in situations where the treaty is interpreted differently, depending on the parties to a dispute. The panelists also debated whether investors could file claims under the ECT as a result of Brexit, for instance by arguing the breach of their legitimate expectations due to changes in the regulatory framework. It was mentioned that the answer to this question depends on whether a tribunal would consider that Article 50 of the Treaty on the European Union acts as a bar to a claim based on legitimate expectations. Finally, the panelists looked into whether claims arising before Brexit based on intra-EU BITs or the ECT could nonetheless be asserted post-withdrawal, when the Achmea judgment could be seen as no longer applicable. There was some support for this view, provided that the European Union and the United Kingdom did not agree otherwise in the withdrawal agreement.

The closing address was given by Iuliana Iancu (Hanotiau & van den Berg Brussels), who summarized the day’s remarks and invited the audience to reflect on whether what some perceive as the gradual reduction in investment protection throughout the European Union will have an effect on foreign direct investment volumes.

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The post The Future of Investment Arbitration in Europe: AIA Conference, June 2018 appeared first on Kluwer Arbitration Blog.

Latin America Dispute Resolution Update – The Latest Developments in Cross-Border Disputes Involving the US and ... - JD Supra (press release)

Google International ADR News - Fri, 2018-07-13 17:15

JD Supra (press release)

Latin America Dispute Resolution Update – The Latest Developments in Cross-Border Disputes Involving the US and ...
JD Supra (press release)
In April 2018, an International Chamber of Commerce (ICC) tribunal awarded US$2.04 billion in damages to two subsidiaries of U.S. company ConocoPhillips in their arbitration against Petróleos de Venezuela, S.A. (PDVSA), Venezuela's national oil and gas ...

Latin America Dispute Resolution Update – The Latest Developments in Cross-Border Disputes Involving the US and ... - JD Supra (press release)

Google International ADR News - Fri, 2018-07-13 17:15

JD Supra (press release)

Latin America Dispute Resolution Update – The Latest Developments in Cross-Border Disputes Involving the US and ...
JD Supra (press release)
In April 2018, an International Chamber of Commerce (ICC) tribunal awarded US$2.04 billion in damages to two subsidiaries of U.S. company ConocoPhillips in their arbitration against Petróleos de Venezuela, S.A. (PDVSA), Venezuela's national oil and gas ...

Dell retrieves copycat domains in UDRP dispute - IPPro The Internet

Google International ADR News - Fri, 2018-07-13 08:27

IPPro The Internet

Dell retrieves copycat domains in UDRP dispute
IPPro The Internet
International computer maker Dell has emerged victorious in a UDRP dispute over four infringing domains. The dispute, which took place at the Alternative Dispute Resolution Forum, saw Dell claim ownership of dell024.com, delldl.com, dellhomewx.com, and ...

Dell retrieves copycat domains in UDRP dispute - IPPro The Internet

Google International ADR News - Fri, 2018-07-13 08:19

IPPro The Internet

Dell retrieves copycat domains in UDRP dispute
IPPro The Internet
International computer maker Dell has emerged victorious in a UDRP dispute over four infringing domains. The dispute, which took place at the Alternative Dispute Resolution Forum, saw Dell claim ownership of dell024.com, delldl.com, dellhomewx.com, and ...

Efficient Arbitration – Part 2: Launching an Efficient Arbitration

Kluwer Arbitration Blog - Fri, 2018-07-13 02:56

Victoria Pernt and Marina Stanisavljevic

Schoenherr

Kicking off our series on efficiency in arbitration, our first article, Efficient Arbitration – Part 1: Metrics sets out our idea of an efficient arbitration:

Achieving the best possible outcome with the least amount of resources.

A balancing act.

A range of tools are available to focus the spending of resources. Resources should be invested, not wasted. The selection of the right tools to do so often falls to counsel. It is crucial that counsel is aware of the available tools, stays on top of new efficiency developments, and is experienced in selecting and utilizing the right tools for each case.

This article is the first of a two-part overview of efficiency tools, focusing on those available at the early stages of the proceedings. The second part will address efficiency in presenting evidence and at the hearing and post-hearing stages.

As our series continues, we will discuss our experience with various efficiency tools.

  1. Preliminary Case Assessment

The course for an efficient arbitration can be set even before the arbitration is initiated.

A preliminary case assessment, involving a detailed review of the documentation and legal analysis, permits the drawing out of real issues and likely outcomes. The advantages of this are evident. To highlight a few:

  • For matters of low value or with little chance of success, mediation or other forms of ADR may be the better means for resolving the dispute.
  • Knowing the real issues informs the decision of whether to pursue joinder or consolidation, so as to avoid the cost of potential multiple proceedings (see “Efficiency at all cost – arbitration and consolidation”); and whether a simplified procedure applies or should be proposed (i.e. expedited or summary procedure).
  • A thorough case assessment may attract stronger third-party funding. De-risking the dispute, third-party funding allows parties to pursue their claim without bearing all the costs and risks.
  • Finally, one of the advantages of arbitration is that the parties are free to design the proceedings to fit their issues and needs. To benefit from that advantage, counsel should be aware of the real issues already at the outset of the arbitration.

Accordingly, early case assessment is an important efficiency tool. If utilized properly, it will save time and money in the long run.

  1. Initiating the Arbitration

Already drafting the first submission to initiate the arbitration, often called the Request for Arbitration (RFA), raises important efficiency questions:

How much detail, and how much evidence, should actually go into the RFA?

This, of course, depends on strategy, and parties should tread on a case-by-case basis.

Generally, a shorter RFA may save time and money, but will require additional information in further submissions. The case may be perceived as weaker if less or no evidence is presented, hampering chances of early settlement. A more detailed RFA, on the other hand, may assist the tribunal in laying out a more tailored procedure. However, the respondent party may seek an extension for filing its equally detailed Answer (and potential counterclaim) (ICC Guide on Effective Management of Arbitration). Moreover, while possibly enhancing chances of early settlement, revealing the “smoking gun” in the RFA gives the other party significantly more time to prepare a rebuttal, which may jeopardize a favourable outcome.

  1. Selecting the Tribunal

Once the arbitration is initiated, the next – and important – task is selecting the right arbitrators. Many considerations are relevant, in particular the arbitrators’ experience, background and preferences.

But personality may also play a role. In our experience, the efficiency of proceedings is greatly enhanced by arbitrators who, for instance, restrain “particularly litigious counsel” tempted to “take advantage of arbitrators who were softer; generously granted exceptions; always sought to achieve a compromise in lieu of simply deciding, and so allowed counsel to disregard set deadlines and procedures with impunity” (see Leon Kopecký and Victoria Pernt’s A Bid for Strong Arbitrators).

When selecting arbitrators, counsel may also seek confirmation as to their availability and commitment not to take on new appointments that may interfere with the efficient conduct of the arbitration.

  1. Designing the Arbitration

The early stages of the proceedings lend themselves to designing the most efficient arbitration for the particular case.

Parties may agree on a fast-track schedule (with fixed deadlines) or page limits for submissions. Should subsequent submissions give rise to new issues, parties may schedule a further procedural conference to modify the proceedings accordingly.

An important tool gaining more and more traction is the effective use of the case management conference (CMC). The CMC aims to engage the tribunal at an early stage. It helps streamline the proceedings and determine and focus the real issues. The benefits are significant: focusing the real issues may simplify the arbitration, or even dispose of it altogether by encouraging early settlement (IBA Compendium of Arbitration Practice 2017).

… to be continued

The above are just some of the tools at the parties’ disposal in the early stages of arbitration. Counsel will have to determine in every case and at every stage whether and which of these tools to implement. That decision will be based on a cost/benefit analysis. A balancing act.

Importantly, no two tools and no two stages should be viewed in isolation. The efficiency tools adopted in the early stages will inform and affect the remainder of the proceedings – a stage we will explore in our next article.

To make sure you do not miss out on regular updates on the Kluwer Arbitration Blog, please subscribe here.

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The post Efficient Arbitration – Part 2: Launching an Efficient Arbitration appeared first on Kluwer Arbitration Blog.

House Begins Debate on Trust Act - Government of Jamaica, Jamaica Information Service

Google International ADR News - Thu, 2018-07-12 14:05

Government of Jamaica, Jamaica Information Service

House Begins Debate on Trust Act
Government of Jamaica, Jamaica Information Service
The Bill also provides for the power to relieve Trustees from personal liability and indemnification of Trustees by beneficiaries, and for the settlement of actions against Trustees by alternative dispute resolution. Minister Vaz said the Bill will put ...

Can We Talk? Should We?

ADR Prof Blog - Thu, 2018-07-12 11:53
In our field, we specialize in facilitating conversations between people who think differently about things. But even our field has been divided by the question of whether we can or should converse with people who hold particular views. Consider this graphic: (HT to Above the Law. You can click on it to make it bigger.) … Continue reading Can We Talk? Should We? →

Kluwer Mediation Blog – June Digest

Kluwer Arbitration Blog - Thu, 2018-07-12 04:00

Anna Howard

“We believe that it is in the interests of our world as a whole and our own communities in particular that difficult issues are discussed with civility and dignity.”

 

These are the opening words of the Edinburgh Declaration of International Mediators, which was launched at the International Academy of Mediators Conference in Edinburgh in May. Our monthly summary of posts on the Kluwer Mediation Blog includes three posts on this conference and the seminal declaration, together with posts from around the world including from Singapore, Canada, France, Germany and England. You’ll find below a brief summary of each post on the Kluwer Mediation Blog last month.

In “The Edinburgh Declaration of International Mediators, May 2018”, John Sturrock, who chaired and hosted the International Academy of Mediators conference in Edinburgh, shares the Edinburgh Declaration which sets out what international mediators believe in and commit to. Following addresses emphasising the value of principled and interest-based negotiation delivered by world-renowned negotiation expert William Ury and Scotland’s First Minister, Nicola Sturgeon, the declaration was signed at the conference by nearly 100 mediators from around the world. The declaration is available for all to use and share.

In  “Beware Unreasonable Refusal to Mediate”, Rick Weiler considers the recent cost decision of Justice Graeme Mew in the Canadian case of Canfield v Brockville Ontario Speedway. The case provides an instructive review of the principles which the court will consider when weighing the cost consequences to an unsuccessful party of unreasonably refusing to participate in a mediation.

In “Principled Negotiation’s Greatest Hits”, following the International Association of Mediators Conference in Edinburgh, Charlie Woods shares his ‘desert island discs’ selection of some of the greatest hits from the principled negotiation approach as set out in William Ury’s Getting to Yes. These include: giving to gain, separating the people from the problem and getting into their shoes.

In “A Neuro Linguist’s Toolbox – Rapport: Representational Systems (Part 2)“, in the fourth part of a series of posts on the application of neuro-linguistic programming, Joel Lee explains four representational systems: visual, auditory, kinesthetic and digital. Joel also explains how to identify which representational systems are in use.

In “The Trump-Kim Summit: Is “attitude” more important than preparation?”, Nadja Alexander considers the role of “gut feeling” or intuition in negotiation. Drawing on Kahneman’s Thinking, fast and slow, Nadja explains two sets of assumptions (or heuristics) which may have been of relevance in the Trump-Kim Summit: the affect heuristic and the over-confidence heuristic.

In   “The Soul of Mediation & leaving a legacy for the next generation”, Anna Howard shares some of the insights gained from workshops at the International Academy of Mediators conference on the topic of the soul of mediation and leaving a legacy for the next generation. Anna also shares her reflections on talks by William Ury and three times Nobel Peace Prize nominee – Dr Scilla Elworthy.

In  “Commercial Mediation & the exhibition industry”, Angela Herberholz considers the findings from her research on the use of, and knowledge about, mediation in the exhibition industry. Angela’s  research found that the majority of the surveyed exhibition industry professionals stated that commercial mediation is not a conflict resolution mechanism which is used to treat business-to-business disputes in their industry.

In “Haltung – on the meaning of a word and its relevance for mediation”, Greg Bond explores the meaning of the German word Haltung, a key term in mediation training in Germany. Haltung can be translated insufficiently as “attitude.” Greg’s comprehensive explanation of the term invites mediators to reflect on what they bring to mediation.

To make sure you don’t miss out on regular updates from the Kluwer Mediation Blog, please subscribe here.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post Kluwer Mediation Blog – June Digest appeared first on Kluwer Arbitration Blog.

House passes maritime protection Bill - Jamaica Observer

Google International ADR News - Thu, 2018-07-12 00:12

Jamaica Observer

House passes maritime protection Bill
Jamaica Observer
THE House of Representatives on Tuesday passed a Bill which gives effect to a Cabinet decision to incorporate into domestic law the provisions of the International Convention for the Control and Management of Ships' Ballast Water and Sediments, which ...

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Charity Scott’s Reflections on Stone Soup

ADR Prof Blog - Wed, 2018-07-11 20:41
I have been getting in touch with lots of friends and colleagues encouraging them to consider using a Stone Soup assignment in one or more of their courses next year. Charity Scott, Georgia State, who used Stone Soup last year once in Negotiation and twice in Mediation, responded with this lovely email. “Nice to hear … Continue reading Charity Scott’s Reflections on Stone Soup →

As Trump Arrives, Europe Frets Over His Designs on Postwar Global Order - Wall Street Journal

Google International ADR News - Wed, 2018-07-11 07:41

Wall Street Journal

As Trump Arrives, Europe Frets Over His Designs on Postwar Global Order
Wall Street Journal
Crucially, Mr. Trump has failed to acknowledge the extent to which the multilateral system has worked over the past 70 years, not least in preventing a wider collapse following the financial crisis of 2008, says a senior international diplomat ...

Commercial Mediation Market shoots up with 20% growth - ResponseSource (press release)

Google International ADR News - Wed, 2018-07-11 03:04

ResponseSource (press release)

Commercial Mediation Market shoots up with 20% growth
ResponseSource (press release)
The Centre for Effective Dispute Resolution (CEDR) is Europe's largest independent Alternative Dispute Resolution service for both commercial and consumer disputes handling thousands of referrals a year. CEDR operates the Court of Appeal's Mediation ...

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