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Foundation of Qatar Sports Arbitration signs agreement with the QICDRC - Gulf Times

Google International ADR News - Sun, 2018-03-04 14:01

Gulf Times

Foundation of Qatar Sports Arbitration signs agreement with the QICDRC
Gulf Times
Qatar International Court and Dispute Resolution Centre (QICDRC) yesterday signed a memorandum of understanding (MoU) with the Foundation of Qatar Sports Arbitration (FQSA) to begin their co-operation in the field of alternative dispute resolution. The ...

Stone Soup:  Student Papers From Gely’s Negotiation, Simcox’s Trust & Estates, and Dauber’s Evidence Courses

ADR Prof Blog - Sun, 2018-03-04 13:51
Faculty using Stone Soup assignments have required students to write papers summarizing interviews or observations of actual cases.  Like the assignments themselves, these papers vary quite a bit, as illustrated below. This post provides sample papers to give faculty ideas about what you might assign your classes in the future and provide papers you might … Continue reading Stone Soup:  Student Papers From Gely’s Negotiation, Simcox’s Trust & Estates, and Dauber’s Evidence Courses →

International Energy Arbitration: Is A New Wave Of ‘Resource Nationalism’ On Its Way?

Kluwer Arbitration Blog - Sun, 2018-03-04 01:47

Lee Rovinescu

ITA

The 5th Annual ITA-IEL-ICC Joint Conference on International Energy Arbitration was held in Houston last month, and the focus was on the year past and the year ahead in the arbitration of international disputes in the energy industry. From the topics discussed, predictions rendered and questions raised at the conference, attendees departed considering whether the next wave of resource nationalism – the meaning of the term itself engendering debate among conference panelists (discussed below) – would come from a North American state.

Key developments in North America: Naturally, the re-negotiation of NAFTA was an issue that received lots of attention over the course of the two-day conference, not least because the keynote address was delivered by US Department of State Senior Advisor, Richard Westerdale. The status of the negotiations and the form that investor-state dispute settlement (ISDS) will take has been the subject of much analysis by the arbitration community over the past 12 months.

While the future of NAFTA received the requisite air time at the conference, a different North American development on which (depending on your preferred source of arbitration news) the community has focused less was one of the headline points from the conference’s first panel – “Mexican Energy Disputes: A New Era”, chaired by Silvia Marchili with panelists Prof. Julián de Cárdenas Garcia, Cecilia Ibarra-van Oostenrijk, Raymundo Piñones de la Cabada and Gabriel Salinas. The issue is the potential impact that Mexico’s July 2018 Presidential election will have on the country’s energy sector. The leading candidate, Andrés Manuel López Obrador of the National Regeneration Movement (abbreviated as MORENA in Spanish) was a staunch opponent to the opening of Mexico’s energy sector in 2013, and has alluded to unwinding those reforms if elected.

A look back – opening of Mexico’s energy industry (2013): In December 2013, Mexico introduced constitutional amendments ending the state’s monopoly over the oil and gas sector, which had persisted since the industry’s nationalization in 1938. Congress voted in favor of opening the sector to private and foreign investment (the Apertura). The state’s proven oil reserves rank in the top 15 to 20 worldwide, and so the Apertura created significant opportunity for foreign investors. In particular, the state sought private investment for its deep-water oil resources, as well as its shale oil and gas fields. Since then, Mexico has held at least ten tenders for private participation in the industry. According to a government website, the state has since signed 74 contracts for the exploration and extraction of hydrocarbons, with 70 different companies from 18 different countries (including Mexican companies).

The standard form contracts issued for the various bidding rounds – discussed by the panel at the conference – are publicly available. The contracts used in the more recent bidding rounds contain what Professor Cárdenas considers to be a rather unique provision acknowledging the existence of protections under investment treaties. For example, the September 2017 contract used in the third bidding round for shallow water blocks provides: “The Contractor shall enjoy the rights provided for in the international treaties to which the State is a party” (Article 27.9). During the panel discussion, Ms. Marchili asked whether such provisions confer on tribunals constituted under the contracts jurisdiction to consider treaty breaches, but the answer from the panel was that there are different possible interpretations.

As noted by Professor Cárdenas, the standard form contracts used across all of the bidding rounds have arbitration clauses that are favorable to foreign investors: arbitration under the UNCITRAL Rules, seated in The Hague (see, e.g., Article 26.5 in the standard form contract for the first bidding round for deep water blocks). However, he also noted that the contracts contain a carve-out for disputes arising from the “administrative rescission” of a contract, which are instead referred to the Federal Courts of Mexico (see, e.g., Article 26.4).

Under the standard form contracts, the National Hydrocarbons Commission (the state entity signing the contracts) may rescind a contract based on, among other grounds, a failure by the contractor to: (i) comply with a minimum work program, or (ii) make payment or deliver hydrocarbons in accordance with the contract (see, e.g., Article 23.1). Naturally, there is scope for differing interpretations on the manner in which the grounds for rescission may be applied. And, depending on the outcome of the July election, the provisions concerning administrative rescission may be brought to the fore – especially if a new Administration attempts to renegotiate or unwind the contracts and wishes to creatively avoid resolving disputes arising therefrom in an international forum (for further discussion on administrative rescission under Mexican law, see recent Kluwer blog post by Jaramillo).

A look ahead – Mexico’s general election (July 2018): Predicting election results has proven to be a fruitless endeavor. Notwithstanding, the current reports are that Mr. López Obrador is the leading candidate in Mexico’s July 2018 Presidential election, and that should be of interest to the international arbitration community.

Mr. López Obrador’s policies were considered at the conference during a discussion on “Resource Nationalism in Emerging Markets.” The panel was moderated by Sylvia Noury, and included panelists R. Doak Bishop, E. Ned Mojuetan, Kate Brown de Vejar, and Juan Carlos Boué. As mentioned above, Mr. López Obrador was an opponent of the 2013 Apertura, and, for the upcoming election, he has campaigned on a nationalist / protectionist agenda. He has expressed a desire to revisit the regulatory changes introduced through the Apertura. Ms. Brown de Vejar – who is based in Mexico City – explained that Mr. López Obrador’s camp has promised respect for the rule of law, but indicated that he would still consider pursuing the renegotiation of contracts that do not align with his view of the energy sector.

Since the conference, Mr. López Obrador’s intentions have become clearer. On 5 February 2018, speaking about the many contracts signed with foreign oil companies since December 2013, he was reported as saying in no uncertain terms: “We will revise all these contracts, we will not allow the oil, which is owned by the people and the nation, to go back into the hands of foreigners” (see local and international press reports).

Is a new wave of resource nationalism afoot? In Ms. Brown de Vejar’s view, there is a risk that the deals that have been struck since the Apertura may be so vulnerable to abuse by the foreign contracting parties that there may be a call for their renegotiation irrespective of the outcome of Mexico’s election. A discussion on this issue would not be complete without acknowledging the lively debate on her panel concerning the definition of resource nationalism. Half the panel rejected the term as being unfairly pejorative; the term, those panelists said, is used to imply that there is something improper with a state taking action to ensure that sufficient returns from its natural resources enure to the benefit of the state and its people. The other half of the panel accepted the term, explaining that it is used to refer to circumstances when a state reneges on undertakings made in contract or to induce foreign investment in order to increase government take.

In any event, whatever label is assigned to Mr. López Obrador’s threat to revisit Apertura contracts, if he is elected, and if he does ultimately act on such threats, foreign investors certainly will consider what actions can be brought under the arbitration agreements in their contracts and/or pursuant to investment treaties in force.

This leads to an important issue of timing, and full circle to the NAFTA re-negotiation: whether the treaty will be renegotiated and agreed before Mexico’s general election. Given the constitutional constraints preventing foreign investment in Mexico’s energy industry when NAFTA was agreed in 1992, Mexico made a general reservation in Annex 602.3 reserving to itself the exploration and exploitation of crude oil and natural gas. NAFTA was not amended after the 2013 Apertura to reflect the changes in Mexico’s energy policy referenced above. Meanwhile, American and Canadian companies already have signed contracts to participate in the sector. If NAFTA’s renegotiation is completed prior to the election, then those companies may receive significantly better investment protection than will be available if NAFTA’s renegotiations are completed under an Administration run by Mr. López Obrador.

With thanks to Amy Tam for research assistance.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post International Energy Arbitration: Is A New Wave Of ‘Resource Nationalism’ On Its Way? appeared first on Kluwer Arbitration Blog.

Alternative dispute resolution order of the day - The Daily Star

Google International ADR News - Sat, 2018-03-03 13:57

Alternative dispute resolution order of the day
The Daily Star
An eminent business leader, he is also a former president of the Federation of Bangladesh Chambers of Commerce & Industry and the Dhaka Chamber of Commerce & Industry. He is the founder chairman of the Bangladesh International Arbitration Centre. On ...

Indonesia: Enforceability of Foreign Anti-Suit Injunctions under Indonesian Law

Kluwer Arbitration Blog - Fri, 2018-03-02 22:32

Turangga Harlin

YSIAC

There have been a number of occasions in Indonesia when domestic court proceedings and foreign arbitration proceedings of the same matter were carried out concurrently. In some of those occasions, the arbitral tribunal, upon the claimant’s request, issued an anti-suit injunction in respect of the Indonesian court proceedings brought by the respondent. In Astro Nusantara International B.V. et al. (Astro) v. PT Ayunda Prima Mitra et al. (Ayunda) [2010 and 2012], the Indonesian Supreme Court refused to recognize and enforce a foreign anti-suit injunction issued by a tribunal constituted under the Singapore International Arbitration Centre (SIAC) Rules. This post will discuss the Supreme Court’s reasoning behind the decision and, at the same time, will attempt to identify whether there are actually bases to recognize and enforce a foreign anti-suit injunction in Indonesia.

Anti-Suit Injunction under Arbitration Law

Indonesia is a member of the New York Convention, which was ratified through Presidential Decree No. 34 of 1981. As a follow-up to the ratification, the Supreme Court issued Regulation No. 1 of 1990 on Enforcement of International Arbitration Awards. In 1999, the Indonesian government enacted the Arbitration Law. The contents of the Supreme Court regulation are more or less similar to the provisions of the Arbitration Law concerning the enforcement of foreign arbitral awards.

While the Arbitration Law is silent on issues related to the issuance of anti-suit injunctions (or foreign anti-suit injunctions) to prevent opposing parties from commencing or continuing court proceedings, the law recognizes certain procedural orders for various purposes. Article 32 of the Arbitration Law provides that, at the request of one of the parties, a tribunal may make a provisional award or other interlocutory decision on how to organize the examination of the dispute, including passing a procedural order for security attachment, deposit of goods to third parties, and sale of perishable goods. It is worth noting, however, that practically speaking, there has been no known cases of the Indonesian National Board of Arbitration (BANI) issuing a security attachment order.

Supreme Court’s Position on the Enforceability of Foreign Anti-Suit Injunctions

In Astro v. Ayunda, the Indonesian Supreme Court decided to uphold the Chairman of the Central Jakarta District Court’s refusal to recognize and enforce an SIAC award on the basis that the award contained an anti-suit injunction. According to the Supreme Court: (1) the anti-suit injunction amounted to interference in an ongoing Indonesian judicial process, and hence it violated the principle of state sovereignty of the Republic of Indonesia; (2) it violated Indonesian public order; and (3) it did not fall within the commercial sector, rather it fell within the field of procedural law.

The dispute between Astro and Ayunda originally concerned a failed joint venture under a Subscription and Shareholders Agreement (SSA). Pursuant to the arbitration clause in the SSA, Astro commenced arbitration against Ayunda under SIAC Rules. However, prior to such event, Ayunda filed a case against Astro at the South Jakarta District Court. During the arbitral proceedings, Ayunda raised a jurisdictional objection contesting the Tribunal’s jurisdiction. The Tribunal issued an award dismissing Ayunda’s jurisdictional challenge, and granted an anti-suit injunction prohibiting Ayunda from continuing its court proceedings against Astro in Indonesia because the subject matter of the dispute fell within the arbitration clause set out in the SSA.

Interference in an ongoing Indonesian Judicial Process

In arriving at its conclusion on this issue, the Supreme Court appeared to have considered that the anti-suit injunction was addressed to the South Jakarta District Court vis-à-vis the panel of judges who presided over Ayunda’s case against Astro. Thus, the Supreme Court was of the view that the anti-suit injunction amounted to interference in an ongoing Indonesian judicial process, and that it violated the principle of state sovereignty of the Republic of Indonesia.

In reality, the anti-suit injunction was issued to order Ayunda (and not the South Jakarta District Court) to discontinue its case before the court because Ayunda was bound by the arbitration clause set out in the SSA. In fact, under the Indonesian Civil Procedural Law, Ayunda as the plaintiff always had the right to discontinue the case by withdrawing its statement of claim and the civil courts were not empowered to preclude a plaintiff from withdrawing its case. If Astro had submitted its statement of defence, Ayunda’s withdrawal could only be made with Astro’s consent. Given that Astro had commenced the arbitral proceedings against Ayunda at SIAC, it is likely Astro would have consented to Ayunda’s withdrawal.

The Supreme Court’s treatment of the anti-suit injunction as an order against the Indonesian court also appears to be questionable since it is commonly accepted that, in the arbitration context, a tribunal only has jurisdiction over the disputing parties bound by the arbitration agreement based on which the tribunal is constituted. Arbitration is a creature of contract, and hence there is generally no way for a tribunal to issue an order against a third party, let alone against a foreign court. Indonesian Arbitration Law has a similar concept whereby the authority of a tribunal to render an award or order lies in the parties’ arbitration agreement, meaning that the tribunal can only address its awards or orders to those who are bound by the arbitration agreement. Thus, saying that the anti-suit injunction (actually addressed to Ayunda) amounts to a form of intervention against the Indonesian court or judicial process is debatable.

Violation of Indonesian Public Order

There is no precise or clear definition of public order or matters which are deemed to be contrary to public order. The Arbitration Law is silent on the meaning of public order. Article 4 para (2) of Regulation of the Supreme Court No. 1 of 1990 broadly describes public order as “the fundamental principles of the Indonesian legal system and social system in Indonesia”. In other words, public order is an open-ended concept.

“Fundamental principles of the Indonesian legal system” can be found in various pieces of Indonesian legislation. In the arbitration context, one should look at the Arbitration Law to discern the fundamental principles under Indonesian law. One of the most essential articles in the Arbitration Law is Article 11, para (1) in which provides that “the existence of a written arbitration agreement eliminates the rights of the parties to submit the resolution of their disputes or differences of opinion contained in the contract to the District Court”. Article 11 para (2) goes further by saying that “the District Court must reject and must not interfere in any dispute settlement which has been agreed to be done through arbitration”.

It is therefore arguable that the anti-suit injunction is in line with Article 11 para (1) of the Arbitration Law based on which Ayunda has no right to submit any dispute under the SSA to the Indonesian courts. The anti-suit injunction is also not in contravention of para (2) of Article 11 because, under this provision, the South Jakarta District Court has no jurisdiction to hear any dispute arising out of the SSA. One may fairly say that the anti-suit injunction essentially supports the enforcement of Article 11 of the Arbitration Law. Some may argue further that the anti-suit injunction was instead meant to maintain public order by preventing the risk of conflicting decisions on the same matter. In this context, leading scholars have opined that the notion of a court’s jurisdiction is a matter of public order. This is the reason why under the Indonesian Civil Procedural Law, civil court judges are, by their office, obliged not to take jurisdiction over a case where the parties are bound by an arbitration agreement. This means that, even if no party raises a jurisdictional objection, the judge must dismiss the case.

“Commerciality” Principle

Despite the fact that the dispute between Astro and Ayunda arose out of a contractual relationship under the SSA, the Indonesian Supreme Court ruled that the content of the SIAC award does not fall within the commercial sector, rather it falls within the field of procedural law since the award contains the anti-suit injunction.

The question that arises is what needs to fall within the commercial sector: the subject matter of dispute, the legal relation between disputing parties, or the orders set out in foreign arbitral awards?

The Arbitration Law specifically refers to the term “disputes” when setting down the rules of arbitrability. Article 5 provides that “disputes that can be settled by arbitration are those in the commercial sector and the merits of which concern rights that are fully controlled by disputing parties”. This provision underpins Article 66 letter b of the Arbitration Law stating that Indonesia will only recognize and enforce international arbitration awards which fall within the scope of commercial law. Elucidation of Article 66 letter b elaborates on the meaning of the “the scope of commercial law”, i.e. “activities” in the field of commerce, banking, finance, investment, industry, and intellectual property rights. Further, the Presidential Decree on the ratification of the New York Convention provides that Indonesia will apply the New York Convention only to differences arising out of “legal relationships” which are considered to be commercial under the Indonesian law.

Given those provisions, the “commerciality” principle appears to concern the nature of the dispute or legal relationship between disputing parties, rather than the orders set out in foreign arbitral awards, let alone the procedural orders. Leading scholars have opined that the existence of procedural orders in a foreign arbitral award cannot in any way negate the commercial nature of the award so long as the dispute based on which the award is issued arises from a commercial arrangement. Thus, applying the “commerciality” test to a procedural order such as a foreign anti-suit injunction may sound perplexing.

Conclusion

In view of the foregoing discussion, it appears that the nature of the anti-suit injunction issued in Astro v. Ayunda is consistent with Article 11 and 32 of the Arbitration Law.

The real issue here is perhaps the “actual” enforcement of the anti-suit injunction, i.e. how to procure Ayunda to withdraw its case before the Indonesian court. The same problem in fact arises in an Indonesian court case where the court passes an order for specific performance (say to perform the agreed service) as opposed to an order for monetary damages. It is generally difficult to execute the former if the losing party refuses to voluntarily comply with the order, especially because there is no clear sanction for not obeying a civil court order. In contrast, Indonesian courts can execute an order for monetary damages by seizing and auctioning off the losing party’s assets before eventually handing over the proceeds to the winning party. It is common for Indonesian litigants who seek a court order for specific performance to also request a “dwangsom” (order for monetary penalty) at the same time. If the request for dwangsom is granted by the court, the losing party will be required to pay a penalty of an amount determined by the court for each day of delay in complying with the order for specific performance. If the losing party continues refusing to perform the required act, the court can execute the dwangsom as any other orders for monetary damages. This will put certain pressure on the losing party to comply with the order for specific performance.

Given the above, it may be worth considering seeking an anti-suit injunction accompanied by a monetary penalty that is payable if the party against which the injunction is issued (such as Ayunda) refuses or fails to comply with the injunction. Having said that, one needs to be very cautious about asking for an anti-suit injunction if it intends to enforce its case in Indonesia as Indonesian courts may not only refuse to recognize the anti-suit injunction, but also the entire award as in Astro v. Ayunda (although like other civil law countries, Indonesia does not follow the rule of binding precedent).

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post Indonesia: Enforceability of Foreign Anti-Suit Injunctions under Indonesian Law appeared first on Kluwer Arbitration Blog.

Students consider careers using mediation skills after international competition - Mitchell Hamline News (press release)

Google International ADR News - Fri, 2018-03-02 17:48

Mitchell Hamline News (press release)

Students consider careers using mediation skills after international competition
Mitchell Hamline News (press release)
They made it all the way to the semi-finals, wrapping up the international competition with a 3rd-place finish. “They really represented Mitchell Hamline and the USA in a great way,” Press says. Finishing in the top three teams at the ICC competition ...

Time to focus on cultural tourism is now – Nana Otuo Siriboe II - GhanaWeb

Google International ADR News - Fri, 2018-03-02 13:51

GhanaWeb

Time to focus on cultural tourism is now – Nana Otuo Siriboe II
GhanaWeb
The basis of the sustainable peaceful environment of the Ghanaian society, he revealed, is the presence of strong traditional leaders who have, before the creation of the country's judicial system, used alternative dispute resolution to adjudicate ...

Nalsar, ICADR to organise convocation on March 3 - Telangana Today - Telangana Today

Google International ADR News - Fri, 2018-03-02 13:28

Telangana Today

Nalsar, ICADR to organise convocation on March 3 - Telangana Today
Telangana Today
The International Centre for Alternative Dispute Resolution (ICADR), Regional Centre, Hyderabad, and NALSAR University are organising a convocation for PG Diploma students from 11 am on Saturday.

and more »

16th convocation at NALSAR today - The Hans India

Google International ADR News - Fri, 2018-03-02 12:35

The Hans India

16th convocation at NALSAR today
The Hans India
Shamirpet: The International centre for Alternative Dispute Resolution (ICADR), Regional centre, Hyderabad and NALSAR University of Law , Hyderabad are organising the 16th convocation Function awarding Gold and silver Medals and post Graduate Diplomas ...
Nalsar, ICADR to organise convocation on March 3Telangana Today

all 2 news articles »

16th convocation at NALSAR today - The Hans India

Google International ADR News - Fri, 2018-03-02 12:21

The Hans India

16th convocation at NALSAR today
The Hans India
Shamirpet: The International centre for Alternative Dispute Resolution (ICADR), Regional centre, Hyderabad and NALSAR University of Law , Hyderabad are organising the 16th convocation Function awarding Gold and silver Medals and post Graduate Diplomas ...
Nalsar, ICADR to organise convocation on March 3Telangana Today

all 2 news articles »

Stone Soup:  How to Make the Most in a Continuing Education Program

ADR Prof Blog - Fri, 2018-03-02 08:33
Following this exchange on the blog, Lainey Feingold emailed me asking for advice about using Stone Soup in an upcoming Structured Negotiation training for lawyers and advocates from legal services organizations.  The training would include a case study and two role-play exercises.  She asked if there are some Stone Soup questions she might ask and … Continue reading Stone Soup:  How to Make the Most in a Continuing Education Program →

Kluwer Mediation Blog: February Digest

Kluwer Arbitration Blog - Fri, 2018-03-02 03:18

Anna Howard

With posts on the new Japan International Mediation Centre, on reflections from the coach of the winning team in the recent ICC Mediation Competition, on top TED talks for mediators, and finally on analogies between cricket and mediation, there is something for everyone in the posts from the Kluwer Mediation Blog in February. Below you’ll find a brief summary of each of the posts on the blog last month.

In “Wa And the Japan International Mediation Centre – Kyoto”, James Claxton and Luke Nottage introduce the Japan International Mediation Centre-Kyoto which is due to open soon. James and Luke also consider the centre’s potential as a leading centre for international mediation services.

In “Educating the dispute resolvers of the future”, Sabine Walsh considers how the ICC’s Mediation Competition in Paris, and the growing number of others like it, are contributing to a change in the way disputes are going to be resolved in the future. Sabine also explains two important initiatives discussed at a recent conference on ADR in legal education at the University of Maastricht.

In “The map is not the territory”, Charlie Woods explains how things are often not what they at first seem and how we frequently see, hear or sense things differently, depending on where and in what circumstances we find ourselves. Charlie then identifies how, in the mediation process, we might use the mental maps that parties have of their truth.

In “Empathy”, Charlie Irvine and Laurel Farrington consider what empathy means and requires. They also apply Bowlby’s attachment theory to mediation practice and explore whether mediators need to be empathic.

In “A neuro-linguists toolbox – rapport: non-verbal behavior”, in the second in a series of posts on neuro-linguistic programming, Joel Lee explains how we can build rapport by using non-verbal behaviours. In particular, Joel describes how we can pace posture, gesture, facial expressions and breathing to achieve rapport.

In “Settlement is not success, impasse is not failure: it is the perseverance to mediate that counts”, Ting-kwok IU draws on the recent film “The Darkest Hour” to identify the importance in mediation of grit, of moving from the substantive to the emotional dimension and of language. Ting-kwok also explains why “settlement is not success, impasse is not failure.”

In “The immovable elephant: motivating lawyers towards early ADR efforts”, Jeff Trueman draws on Chip and Dan Heath’s Switch: How to Change Things When Change is Hard to explain how our emotional side, the “elephant” may deter us from using mediation and steer us in the direction of litigation. Jeff then identifies how the real potential for early resolution starts with a determination from lawyers to do business differently.

In “The 13th ICC International Commercial Mediation Competition – reflections on what it takes to be a winner”, Rosemary Howell, the coach of the winning team from the University of New South Wales, shares the lessons which have supported her teams’ continued success – not just in the competition, but in the lives of the students as they move on to pursue their chosen careers. They include: “Be prepared to lose and, when you do, lose with grace” and “Doing the right thing for the right reason should be the ethical and strategic goal of every team.”

In “Cutting down a tree with an aircraft carrier”, against the backdrop of the recent Winter Olympic Games in South Korea, Martin Svatos considers some of the conflicts between North and South Korea, including how a tree nearly triggered World War III.

In “TED talks I have enjoyed – and that resonate with the mediator in me”, Greg Bond lists ten TED and TEDx talks that he has found inspiring and that relate to mediation, in the broadest sense of the word.

In “The Power of Feedback”, Angela Herberholz shares the inspiration behind her new approach to providing feedback as a judge in the recent ICC Mediation Competition and identifies the impact which this new approach has had.

In “The coincidental mediator: a cautionary tale”, Ian Macduff draws on his recent experience of an informally-requested intervention to identify some risks for the coincidental mediator.

In “Mediation: a cricketing metaphor”, John Sturrock explores some analogies between cricket and mediation. John also identifies what sets apart a really effective mediator from the average.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post Kluwer Mediation Blog: February Digest appeared first on Kluwer Arbitration Blog.

Stone Soup Assessments: Farkas Arbitration, Tetunic Clinic, and Fowler, Keet & Baerg, and Newman & Roger Negotiation Courses

ADR Prof Blog - Thu, 2018-03-01 21:00
Here is a collection of more assessments of Stone Soup course assignments.  This again demonstrates how faculty have been creative in crafting a wide variety of learning experiences that fit their instructional goals and situations. Many colleagues wish they had students do these assignments earlier in the semester and discuss them in class.  Brian Farkas … Continue reading Stone Soup Assessments: Farkas Arbitration, Tetunic Clinic, and Fowler, Keet & Baerg, and Newman & Roger Negotiation Courses →

ADR mechanism: Making India a hub of arbitration - Financial Express

Google International ADR News - Thu, 2018-03-01 17:34

Financial Express

ADR mechanism: Making India a hub of arbitration
Financial Express
The government of India is also committed for speedy resolution of commercial disputes, and to make India an international hub of arbitration and a centre of robust ADR (alternative dispute resolution) mechanism catering to international and domestic ...

Copyright litigation in Mexico: overview - Lexology

Google International ADR News - Thu, 2018-03-01 11:49

Copyright litigation in Mexico: overview
Lexology
Procedural rules allow judges to declare extra-territorial injunctions, for example, for violations to the Mexican Copyright Law perpetrated by parties domiciled outside Mexico. However, since the question has never been raised in practice, it is ...

THIRD PARTY FUNDING DISCLOSURE ISSUES – AN ARBITRATOR PERSPECTIVE

Remarks presented by Marc J. Goldstein in the lecture program of AAA/ICDR practice moot in New York on February 23, 2018.   Introduction The CEO of a third-party funding firm in New York is an exceptionally capable attorney who was a colleague of mine at my former law firm. He was not just another colleague; we worked together on major international arbitration cases. One of them, as it happens, was a very early instance of the use of third-party funding — used by our client, and negotiated with the funder by a funding neophyte named Marc Goldstein, for a sizeable claim...
Read More »

Why Should Countries with Limited Recognition Start Concluding BITs? – Several Overlooked Motives

Kluwer Arbitration Blog - Thu, 2018-03-01 00:01

Danilo Ruggero Di Bella

Introduction

The two main reasons why countries generally agree to sign bilateral or multilateral investment treaties (BITs or MITs) are to attract foreign direct investments, while at the same time protecting their own citizens’ investments abroad by reducing political risk. Arguably, there might be multiple added values on top of these reasons for a specific group of countries or quasi-countries, meaning States with a limited recognition as such. This post will explore these added values by providing theoretical foundation and practical examples.

Building up consensus for their recognition

One of the four criteria that defines a State – according to article 1 of the 1933 Montevideo Convention on the Rights and Duties of States – is the capacity to enter into relations with other States. Now, the most obvious way a State may enter into relations with other States is through the conclusion of international treaties, bilateral or multilateral ones. One particular type of international treaty – that happens to be one of the most successful international instruments in terms of diffusion – is indeed the so-called BIT, with over 3,000 different BITs having been negotiated, signed and ratified all around the world by many different State Parties.

For States with limited recognition, there might be several other reasons to conclude bilateral investment treaties, other than enticing reciprocal investments from and to other States. One of these reasons would be to strengthen and increase the recognition of their statehood by the international community. In fact, should a State conclude a BIT with a country with limited recognition, that State would recognize the latter as a full-fledged State. Depending on whether the former State had previously recognized or not the latter, its recognition would be either express or implicit, respectively. Put differently, States’ opinio juris confirming the statehood of the new emerging country would be reflected in the State practice of concluding international agreements with the new international entity.

The good thing about these kind of treaties is that both capital-exporting States as well as capital-importing States are inclined to sign as many BITs as they can (or at least they used to be, until recent years), because of the legal certainty with which these BITs vest the investment of their nationals and because of their capacity of boosting foreign investments. Besides, many States – that once used to be regarded as capital-importing States – are increasingly becoming capital-exporting powers with the new need of protecting their own citizens’ investments abroad. Consequently, the foreign policy of countries with a limited recognition may use these BITs to leverage other States into recognize them (expressly or implicitly).

Effective control over national resources

Another of the four criteria that defines a State – always according to article 1 of the 1933 Montevideo Convention on the Rights and Duties of States – is the capacity to exercise effective control over the territory claimed by a State. And, indeed, these BITs may additionally represent for these partially recognized States an opportunity to make clear, officially and internationally, their formal and effective control over key resources or lands disputed by neighboring countries. On one hand, these States would formally claim their sovereignty over national resources by signing these treaties with other States – that subsequently would back up this sovereignty – and on the other hand, these countries would exercise effective control by virtue of entering into investment agreements with foreign companies to develop such resources. This way foreign investors, instead of entering into investment agreements with the neighbor or competing country over the disputed territory, might feel more comfortable in dealing directly with the authorities of the State, whose universal recognition is underway.

An opportunity to draw new and more suitable economic policies and delimit their international obligations

Further, the new BITs negotiated by these countries with limited recognition will clear any doubt about whether the BITs concluded by their bordering States, or predecessor State (or the State that allegedly continues to claim rights over their territories) are applicable or not to them. Obviously, a newly emerged country that negotiated its own BITs, whereby it pursues and reflects its own economic policy and goals shall not be dragged to an investment arbitration based on a BIT concluded by its neighbor or predecessor State (more often than not, an old BIT that presumably pursues different economic policies, not necessarily shared by the new State). The newly emerged State should not be bound by that treaty, unless, of course, that State expressed its consent to that BIT in writing and the other High Contracting Party to that treaty agrees to be bound by a BIT with a different Contracting Party, for instance, by means of Exchange of Notes. Consequently, the negotiation of new BITs will reinforce the fact that an emerging country possesses a different international legal personality from its predecessor or eventual trespassing neighbor State, whose international obligations shall not bind the emerging or seceding State.

This active treaty-making policy could avoid some surprising and undesirable outcomes in Investor-State arbitrations, such as the Decision on Jurisdiction in World Wide Minerals Ltd. v. The Republic of Kazakhstan (19 October 2015, UNCITRAL arbitration) holding the respondent State bound by the 1989 Canada-Soviet Union BIT for facts that occurred between 1996-97 (viz. five years after the dissolution of the Soviet Union) and despite the fact that Russia – and not Kazakhstan – is regarded as the legal successor of the Soviet Union.

ISDS by arbitration

The inclusion of arbitration as investor-State dispute settlement (ISDS) mechanism is desirable both for investors and the countries with limited recognition. For the former, it provides for a neutral forum and ensure the effectiveness of the rights bestowed by the BITs. For the latter, arbitration is also the optimum solution because of their specific problems and the possibility to define clearly the contours of a dispute. Indeed, these countries often face interferences from surrounding States which could affect investors’ assets located in their territory and trigger their responsibility for any omission of protection. Since arbitration is based on consent, it allows to curtail in a clear way the scope of parties’ consent to arbitrate and, accordingly, the tribunal’s mandate. Thus, these countries could expressively leave every dispute with investors arising from compensation claims for damages due to armed conflict or civil disturbances outside of the scope of the arbitration provision.

A practical comparison

An example of a country with a limited recognition that, consciously or unconsciously, adopted this policy of concluding BITs is the Republic of Kosovo, whose independence was declared on 17 February 2008. For instance, Kosovo entered into a BIT with Switzerland on 27 October 2011, in force as of 13 June 2012. Currently, 111 out of 193 United Nations Member States have recognized it as a full-fledge State. And according to some critics (whether rightly or wrongly), Kosovo enjoyed a somehow hasty recognition indeed.

Whereas an example of a country that is missing out on this opportunity (and, actually, is paying the price thereof) is the Sahrawi Arab Democratic Republic (SADR or Western Sahara), whose independence was proclaimed on 27 February 1976. This State has not concluded any BIT yet. Currently, 84 out of 193 United Nations Member States have recognized it as a full-fledged State. Missing out on this opportunity has taken its toll on the SADR, since British and French oil companies have applied for and been granted oil exploration and production licenses in Western Sahara with the Office National des Hydrocarbures et des Mines (ONHYM), the Moroccan state oil agency (instead of applying with the SADR Petroleum Authority). Despite the UN Legal Office stating that any oil exploration and exploitation in the SADR’s territory would be in violation of the international law, unless obviously the Saharawis consent to it, these foreign companies preferred to enter into petroleum agreements with Morocco. In this respect, it is noteworthy to remember that Morocco has signed around 80 BITs. Maybe if the SADR had signed as many BITs, these foreign investors would have instead negotiated with the SADR authorities the relevant Producing Sharing Contracts for their respective projects. Plausibly, deciding with whom to enter into these contacts, either Morocco or the SADR, is not a matter of financial or technical resources of the given State party involved (since probably Morocco also does not have the required know-how, financial means, or the will to allocate public money for these projects, otherwise it would have conducted the explorations by itself). It is, arguably, more a question of legal certainty and what State can offer more guarantees for the projects at hand. Being that the very purpose of these BITs is to provide the foreign investor with such additional guarantees, the SADR will conceivably have better luck with foreign investors (meaning investors will see in the SADR a business partner and will sit at the table of negotiations with its Government to develop its national resources in Western Sahara), when the SADR starts concluding BITs. Most importantly, in this respect, the inclusion of an arbitration provision as ISDS mechanism in these BITs is of the essence to gain the trust of those foreign investors.

Conclusion

In a nutshell, the conclusion of BITs by countries with a limited recognition may:
1. strengthen their statehood,
2. boost their effective control over natural resources for the good of its people,
3. help to redefine new economic policies consistent with their actual needs, and
4. clarify their international obligations vis-à-vis other States.


The views expressed in this article are those of the author and DO represent those of the law firm Bottega DI BELLA.

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The post Why Should Countries with Limited Recognition Start Concluding BITs? – Several Overlooked Motives appeared first on Kluwer Arbitration Blog.

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