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NAM Wins Paid Family Leave Arbitration Services Contract with New York State Workers' Compensation Board - Business Wire (press release)

Google International ADR News - Tue, 2017-12-12 07:30

NAM Wins Paid Family Leave Arbitration Services Contract with New York State Workers' Compensation Board
Business Wire (press release)
Article 9 permits the chair of the WCB to select an alternative dispute resolution process and alternative dispute resolution provider to oversee disputes regarding PFL benefits. The Technical Evaluation Committee and the Cost Evaluation Committee of ...

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India: Alternate Dispute Resolution (ADR) In India - Mondaq News Alerts

Google International ADR News - Tue, 2017-12-12 02:49

India: Alternate Dispute Resolution (ADR) In India
Mondaq News Alerts
The ADR mechanism has proven to be one of the most efficacious mechanisms to resolve commercial disputes of an international nature. In India, laws relating to resolution of disputes have been amended from time to time to facilitate speedy dispute ...

Third-Party Funding In International Arbitration: To Regulate Or Not To Regulate?

Kluwer Arbitration Blog - Mon, 2017-12-11 21:57

Marc Krestin and Rebecca Mulder

Linklaters

On 1 September 2017, the ICCA QMUL Task Force on Third-Party Funding published its Draft Report for Public Discussion on Third-Party Funding in International Arbitration. The Task Force has developed principles with the aim of providing guidance to parties, counsel, arbitrators and national courts when facing third-party funding related issues arising in different contexts. Furthermore, and even more notably, the Task Force indicated that the report may be useful for regulatory bodies and arbitral institutions that seek to address issues relating to third-party funding in international arbitration.

It is undisputed that over the past years third-party funding has become increasingly popular in both international commercial and investment arbitration. This has given rise to a number of concerns and potential issues. Although third-party funding has a considerable upside – improving access to justice is an oft cited advantage – it also carries certain risks and challenges, for example, those relating to conflicts of interest, disclosure and (security for) costs. The recent expansion of third-party funding in international arbitration and ongoing debates on this topic have spurred notable developments with regard to its regulation, both on a national and an international level.

Latest developments in third-party funding regulation

Singapore

On 10 January 2017, the Singapore Parliament passed the Civil Law (Amendment) Act (Bill No. 38/2016), which entered into force in March 2017. The Act amends Singapore law to permit third-party funding for international arbitration and related court proceedings under certain conditions, with further regulations prescribing specific eligibility requirements for funders. Until then, third-party funding was prohibited in Singapore and currently, the funding of state court litigation is still restricted.

In anticipation of the newly adopted legislation in Singapore, the 2017 Investment Arbitration Rules (effective as of 1 January 2017) of the Singapore International Arbitration Centre (SIAC) grant an arbitral tribunal the power to order disclosure of the existence of a funding arrangement entered into by one of the parties to the proceedings, the identity of the third-party funder involved and further details on the third-party funder’s involvement and interest in the outcome of the case.

On 31 March 2017, SIAC also issued a Practice Note on Arbitrator Conduct in Cases Involving External Funding. This note includes standards of practice and conduct providing arbitrators with guidance on questions relating to independence and impartiality, disclosure and costs.

Hong Kong

Hong Kong has approved third-party funding of arbitrations seated in Hong Kong by adopting the Arbitration and Mediation Legislation (Third Party Funding)(Amendment) Bill 2016 on 14 June 2017. This development is similar to the amendment of the law of Singapore, in the sense that the new national legislation aims at regulating previously prohibited third-party funding in international arbitration.

On 31 August 2017, the China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center (CIETAC) released its Guidelines on Third Party Funding in Arbitration. These guidelines set out certain principles of practice and conduct which parties and arbitrators are encouraged to observe in respect of actual or anticipated arbitration proceedings administered by CIETAC in which there is or may be an element of third-party funding.

Hong Kong and Singapore are the first countries to explicitly regulate third-party funding in international arbitration on a state level. Although it should be stressed that the reason for this is strongly linked to the fact that prior to these legislative changes third-party funding of legal proceedings was altogether prohibited in these two states (based on the common law doctrines of maintenance and champerty), the new legislation does more than merely allowing third-party funding in prescribed cases. The new Singapore and Hong Kong laws make mandatory the disclosure of the existence of third-party funding and the identity of the funder involved. Such rules on a national level are entirely new in the world of arbitration.

Multilateral treaties and agreements

In the field of investment arbitration, the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union dated 14 September 2016 contains explicit provisions on third-party funding. The Transatlantic Trade and Investment Partnership (TTIP), which is currently available in proposed form only, also includes rules on third-party funding. Finally, the International Centre for Settlement of Investment Disputes (ICSID) is currently working on a way to address third-party funding in arbitrations conducted under the ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules), 2006.

Considering these recent developments in third-party funding in international arbitration, a broader trend towards regulating third-party funding may be expected for the near future.

The Netherlands: a good example of self-regulation?

In the Netherlands, third-party funding has gained traction over the past few years, both in court litigation as well as in (international) arbitration. There has been a notable increase of companies that specialise in the financing of claims entering the Dutch market. The Netherlands is considered an attractive jurisdiction for mass claim disputes. Cartel damage litigation has typically been an area where third-party funding is commonly used. Cases in which damages are suffered as a result of price fixing or abuse of a dominant position in the market by the accused party are attractive for third-party funders. In such cases, the relevant competition authority has usually already imposed a fine, which facilitates proving the damages suffered.

Dutch law does not explicitly address third-party funding. Although the Dutch Ministry of Justice has considered certain legal issues arising from third-party funding, it has not proposed any specific legislation in this regard. This means that (potential) issues arising from the involvement of a third-party funder are to be dealt with under the more general provisions of Dutch law. For example, a threat to the independence and impartiality of an arbitrator as a result of the involvement of a third-party funder with which arbitrator has some sort of relationship, should be addressed by the more general provisions on independence and impartiality of the arbitrator as can be found in the Dutch Code of Civil Procedure. Likewise, potential conflicts of interest between lawyers and their clients on the one hand, and the third-party funder on the other, are currently addressed through the general rules of conduct for lawyers.

The absence of specific regulation of third-party funding in the Netherlands has to our knowledge not led to any major issues in the Dutch legal practice up to this moment. In the very few published cases in which third-party (litigation) funding has been considered, the Dutch courts have dealt rather liberally with the issue, applying general legal principles. At least for now, there seems to be no need for specific regulation in the Netherlands.

To regulate or not to regulate?

The question remains whether further regulation of third-party funding would be a step in the right direction. While 71 per cent of the respondents to the 2015 Queen Mary International Arbitration survey believe that third-party funding is an area that requires further regulation, we are of the opinion that regulating third-party funding, at least on a national level, may not necessarily be the best way forward.

First of all, domestic rules and regulations are likely to be inconsistent among jurisdictions, opening the door to forum-shopping with parties selecting a governing law that is favourable or even silent on the matter. Second, there is a risk of over-regulating, thereby effectively restricting the use and application of third-party funding more than is necessary. Third, it is virtually impossible to address all issues and concerns with a single set of clear and binding rules; the issues associated with third-party funding may differ from case to case, from one jurisdiction to another and are bound to change over time, as will be the way in which third-party funding is practised and the way in which it is perceived. There is no ‘one size fits all’ and flexibility is key.

This leaves us with the roles arbitral institutions and international guidelines can play, which in our view may be more effective in this context. Institutional arbitration rules have a broader applicability than domestic laws and are more specifically designed for the arbitral process. International guidelines are generally non-binding and offer greater flexibility. The 2014 IBA Guidelines on Conflicts of Interest were the first to address third-party funding to provide practitioners with guidance, and not without success. We would therefore propose not to opt for a highly fragmented system of national laws regulating third-party funding, but to further develop a set of non-binding guidelines on which practitioners can rely when being confronted with issues of third-party funding in international arbitration.

Finally, we should not forget that the ongoing debate on third-party funding has given rise to more awareness of its potential risks than ever before. As long as the key players in international arbitration – users, counsel, arbitrators and institutions alike – are conscious of the potential issues associated with third-party funding, they can act upon those. It may not be necessary to further regulate third-party funding if there is a common understanding thereof and generally accepted guidelines which can be relied upon in practice.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post Third-Party Funding In International Arbitration: To Regulate Or Not To Regulate? appeared first on Kluwer Arbitration Blog.

Cat Person and Consent

ADR Prof Blog - Mon, 2017-12-11 12:48
Kristen Roupenian’s new short story, “Cat Person,” is a fascinating story of relationship that manages to capture (among other things) the complexities of consent. Why we agree to what we agree to is such a fraught and often overdetermined question — it is not as simple as arming ourselves with the facts and making a … Continue reading Cat Person and Consent →

Patent Owners Faring Better Than Ever in PTAB Proceedings Reveals Fitzpatrick, Cella, Harper & Scinto Study - Business Wire (press release)

Google International ADR News - Mon, 2017-12-11 10:15

Patent Owners Faring Better Than Ever in PTAB Proceedings Reveals Fitzpatrick, Cella, Harper & Scinto Study
Business Wire (press release)
... leading national intellectual property law firm with offices in New York, Costa Mesa, California, and Washington, D.C. It has one of the premier patent litigation and prosecution practices, which covers the spectrum of intellectual property ...

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Towards a Post-Arbitration Age: The European Commission’s Fast-Track Reform of Investment Dispute Settlement

Kluwer Arbitration Blog - Mon, 2017-12-11 01:06

Anne-Karin Grill and Sebastian Lukic

Schoenherr

The European Commission (“EC”) has recently taken another step in its efforts to replace the traditional investor-state-dispute-settlement (“ISDS”) mechanism which underlies the approximately 1,400 bilateral investment agreements in force between EU Member States and third countries. On 13 September 2017, the EC issued, based on Article 218(3) of the Treaty on the Functioning of the European Union (“TFEU”), a Recommendation for a Council Decision authorising the EC to open negotiations on behalf of the European Union for an international convention establishing a multilateral court for the settlement of investment disputes (the “Recommendation”).1) Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes dated 13 September 2017, COM (2017) 493 final. jQuery("#footnote_plugin_tooltip_2765_1").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

With the Lisbon Treaty (Article 207 of the TFEU) foreign direct investment (“FDI”) became part of the common commercial policy of the European Union, which lies within the EU’s exclusive competence. Recently, in the context of the free trade agreement with Singapore, the Court of Justice of the European Union (“CJEU”) has clarified that the competence regarding ISDS in relation to both FDI and non-direct investment is shared between the EU and its Member States, insofar as they are required to act as respondents in certain disputes.2)Opinion 2/15 dated 16 May 2017, para 285 et seqq. jQuery("#footnote_plugin_tooltip_2765_2").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

The EC has long considered FDI a “new frontier for the common commercial policy.”3) Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Towards a comprehensive European international investment policy, dated 7 July 2010, COM (2010) 343 final, p 4. jQuery("#footnote_plugin_tooltip_2765_3").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Indeed, shortly after the entry into force of the Lisbon Treaty, the EC started its efforts to develop a consistent, unified and effective investment policy. In 2010, the EC published the communication “Towards a comprehensive European international investment policy”,4) Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Towards a comprehensive European international investment policy, dated 7 July 2010, COM (2010) 343 final. jQuery("#footnote_plugin_tooltip_2765_4").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); which explored the characteristics of a new investment policy genuinely established by the European Union. The communication also identified the need for more transparency, consistency, predictability and an appeal system in ISDS. Remarkably, while the EC invoked the need for reforms of the traditional ISDS system, it still considered acceding to the ICSID Convention. In this respect, the EC even noted the need for an amendment of the ICSID Convention to allow the accession of the European Union.5) Ibid, p 10. jQuery("#footnote_plugin_tooltip_2765_5").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Yet, given the public outrage that erupted in the context of the EU’s trade negotiations with the US and, more generally, the global controversy over the legitimacy, consistency and transparency of ISDS following high-profile investment cases (e.g. Vattenfall AB and others v Federal Republic of Germany, ICSID Case No ARB/12/12), the EC’s views on ISDS seem to have changed considerably. The EC’s strategy has shifted from promoting reforms within the framework of the existing ISDS system to pushing for a replacement of the ISDS system by a formal court system.

Devising a new investment dispute resolution mechanism

The EC’s move towards the establishment of a court mechanism for investment dispute resolution goes back to March 2014, which saw a public consultation on investment protection and ISDS. Since then, the EC has – quite contrary to the aspirations expressed back in 2010 – engaged in promoting fast-track reform:

– In May 2015, also in the context of the then ongoing trade negotiations with the US, the EC published the concept paper “Investment in TTIP and beyond – the path for reform” which called for a “profound reform of the traditional approach to investment protection and the associated ISDS system” and, accordingly, aimed at “moving from current ad hoc arbitration towards an Investment Court.”6) Concept paper “Investment in TTIP and beyond – the path for reform” dated 5 May 2015, p 1. jQuery("#footnote_plugin_tooltip_2765_6").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In October 2015, the EC published the communication “Trade for all”, which again highlighted the EC’s endeavours “to build consensus for a fully-fledged, permanent International Investment Court.”7) Communication Trade for all – Towards a more responsible trade and investment policy, COM (2015) 497 final dated 14 October 2015, p 22. jQuery("#footnote_plugin_tooltip_2765_7").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In November 2015, the European Union published a reformed approach on investment protection and investment dispute resolution for the Transatlantic Trade and Investment Partnership with the US, which not only envisaged the establishment of an investment court system, but also the replacement of the bilateral investment court system upon the entry into force of an international agreement providing for a multilateral investment tribunal.8) European Union’s proposal for Investment Protection and Resolution of Investment Disputes, tabled for discussion with the United States and made public on 12 November 2015. jQuery("#footnote_plugin_tooltip_2765_8").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_8", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In August 2016, the EC launched an impact assessment for a multilateral reform of the investment dispute settlement system, including the establishment of a multilateral investment court.9) Impact Assessment on the Establishment of a Multilateral Investment Court for investment dispute resolution dated 1 August 2016. jQuery("#footnote_plugin_tooltip_2765_9").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_9", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In October 2016, the European Union, its Member States and Canada agreed on a Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (“CETA”) noting that “CETA moves decisively away from the traditional approach of investment dispute resolution and establishes independent, impartial and permanent investment Tribunals, inspired by the principles of public judicial systems in the European Union and its Member States and Canada.”10) Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States dated 27 October 2016, p 6. jQuery("#footnote_plugin_tooltip_2765_10").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_10", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In December 2016, the EC together with Canada published a non-paper on the establishment of a multilateral investment dispute settlement system.11) Establishment of a multilateral investment dispute settlement system dated 13/14 December 2017, a non-paper published by the EC and the Government of Canada. jQuery("#footnote_plugin_tooltip_2765_11").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_11", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In January 2017, in the context of an informal ministerial meeting at the World Economic Forum in Davos, the Trade Commissioner Cecilia Malmström called for the “[creation of] a single international dispute settlement system; a system that should not only get the balance right between the interests of states and investors, but also be seen as legitimate by ensuring independence, accountability and transparency.”12) “In Davos, discussing investment disputes”, a blog post published by Commissioner for Trade Cecilia Malmström on 19 January 2017. jQuery("#footnote_plugin_tooltip_2765_12").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_12", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In February 2017, in a speech delivered during a stakeholder event in Brussels, Ms Malmström again expressed antipathy towards the traditional ISDS system observing that “ISDS is old-fashioned and […] far from perfect.”13) “Reforming investment dispute settlement”, Speech by Commissioner for Trade Cecilia Malmström, Stakeholder event Brussels, 27 February 2017. jQuery("#footnote_plugin_tooltip_2765_13").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_13", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In May 2017, a reflection paper of the EC observed that investment disputes “should no longer be decided by arbitrators under the so-called investor-state dispute settlement.”14) Commission Reflection Paper on Harnessing Globalisation dated 10 May 2017, COM (2017) 240, p 15. jQuery("#footnote_plugin_tooltip_2765_14").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_14", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

– In September 2017, the EC issued its Recommendation paving the way towards the establishment of a multilateral investment court (the “MIC”).15) Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes dated 13 September 2017, COM (2017) 493 final. jQuery("#footnote_plugin_tooltip_2765_15").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_15", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

The EC appears to be taking a two-step approach. The first step was completed with the inclusion of investment court systems in bilateral trade and investment agreements. This is the case, for example, in CETA and the EU-Vietnam Free Trade Agreement. The most recent Recommendation of the EC forms part of the second step, which is the formal establishment of a MIC system.

A convention establishing a MIC system

The Recommendation of 13 September 2017 sets out the process towards the conclusion and implementation of an international instrument (the “Convention”) establishing a MIC system. The Convention will deal only with procedural matters. In turn, the applicable law will be subject to the respective investment agreement. The Convention will allow the European Union, the EU Member States, and third parties to submit to the jurisdiction of the MIC disputes arising under agreements to which they are or will be parties. However, as a footnote in the Recommendation shows, disputes arising from intra EU-BITs as well as disputes between an investor of a Member State and a Member State under the Energy Charter Treaty will be outside the scope of the Convention. Regarding the individual characteristics of the new investment dispute settlement mechanism, the Recommendation underlines, inter alia, that:

– the multilateral court system should be a two-tier system with a tribunal of first instance and an appeal tribunal competent to review decisions rendered by the first instance tribunal on the grounds of manifest errors of facts and errors of law;

– members of the MIC should be appointed for a fixed period of time with security of tenure and all necessary guarantees of independence;

– any proceeding conducted before the MIC should be transparent and include the right of third parties to file third-party interventions; and

– the MIC’s decisions should benefit from an effective international enforcement regime.16) Annex to the Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes dated 13 September 2017, COM (2017) 493 final, p 2 et seq. jQuery("#footnote_plugin_tooltip_2765_16").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_16", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

As regards the negotiation process as such, the Recommendation highlights that the negotiations shall be conducted under the auspices of the United Nations Commission on International Trade Law (“UNCITRAL”).17) Ibid, p 2. jQuery("#footnote_plugin_tooltip_2765_17").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_17", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Outlook

The EC is determined to devise a new framework for the resolution of international investment disputes that is (i) permanent, (ii) independent and legitimate, (iii) predictable in delivering consistent case law, and (iv) allows for appeals.18) Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes dated 13 September 2017, COM (2017) 493 final, p 2. jQuery("#footnote_plugin_tooltip_2765_18").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_18", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

These objectives are not only supported by national governments. The establishment of a multilateral investment system will likely be corroborated by the UNCITRAL Commission which, on 10 July 2017, adopted a broad mandate for its Working Group III which implies identifying (i) concerns regarding ISDS, (ii) whether reforms are desirable in light of the identified concerns, and (iii) if reform is indeed desirable, developing and recommending any relevant solutions.19) Report of the United Nations Commission on International Trade Law, Fiftieth Session (3–21 July 2017), A 72/17, para 264. jQuery("#footnote_plugin_tooltip_2765_19").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_19", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); It would therefore not come as a surprise if the UNCITRAL Commission supported the EC’s proposal of establishing a multilateral investment dispute settlement mechanism.

In negotiating the envisaged Convention, the EC will have to safeguard that the new instrument is compatible with the legal order of the European Union. While there is no doubt that “an international agreement providing for the creation of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not, in principle, incompatible with EU law,”20) Opinion 2/13 dated 18 December 2014, para 182. jQuery("#footnote_plugin_tooltip_2765_20").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_20", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); the EC will have to ensure that the Convention has “no adverse effect on the autonomy of the EU legal order.”21) Ibid, para 183. jQuery("#footnote_plugin_tooltip_2765_21").tooltip({ tip: "#footnote_plugin_tooltip_text_2765_21", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); In particular, it will be crucial that the Convention does not adversely affect the powers of the CJEU, bearing in mind the CJEU’s exclusive competence to provide final and authoritative interpretation of European law.

In this respect, helpful guidance is forthcoming: on 6 September 2017, i.e. precisely one week before the EC issued its Recommendation, Belgium requested the CJEU to provide its opinion on the compatibility of the CETA Investment Court System with (i) the CJEU’s exclusive competence to provide the final interpretation of European Union law, (ii) the general principle of equality and the requirement of practical effect of EU law, (iii) the right of access to the courts, and (iv) the right to an independent and impartial judiciary. Without doubt, the CJEU will weigh in heavily when it comes to the EC’s ambitions to reform – in the self-proclaimed “historic” manner – the world of investment dispute settlement.

References   [ + ]

1, 15. ↑ Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes dated 13 September 2017, COM (2017) 493 final. 2. ↑ Opinion 2/15 dated 16 May 2017, para 285 et seqq. 3. ↑ Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Towards a comprehensive European international investment policy, dated 7 July 2010, COM (2010) 343 final, p 4. 4. ↑ Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Towards a comprehensive European international investment policy, dated 7 July 2010, COM (2010) 343 final. 5. ↑ Ibid, p 10. 6. ↑ Concept paper “Investment in TTIP and beyond – the path for reform” dated 5 May 2015, p 1. 7. ↑ Communication Trade for all – Towards a more responsible trade and investment policy, COM (2015) 497 final dated 14 October 2015, p 22. 8. ↑ European Union’s proposal for Investment Protection and Resolution of Investment Disputes, tabled for discussion with the United States and made public on 12 November 2015. 9. ↑ Impact Assessment on the Establishment of a Multilateral Investment Court for investment dispute resolution dated 1 August 2016. 10. ↑ Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States dated 27 October 2016, p 6. 11. ↑ Establishment of a multilateral investment dispute settlement system dated 13/14 December 2017, a non-paper published by the EC and the Government of Canada. 12. ↑ “In Davos, discussing investment disputes”, a blog post published by Commissioner for Trade Cecilia Malmström on 19 January 2017. 13. ↑ “Reforming investment dispute settlement”, Speech by Commissioner for Trade Cecilia Malmström, Stakeholder event Brussels, 27 February 2017. 14. ↑ Commission Reflection Paper on Harnessing Globalisation dated 10 May 2017, COM (2017) 240, p 15. 16. ↑ Annex to the Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes dated 13 September 2017, COM (2017) 493 final, p 2 et seq. 17. ↑ Ibid, p 2. 18. ↑ Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes dated 13 September 2017, COM (2017) 493 final, p 2. 19. ↑ Report of the United Nations Commission on International Trade Law, Fiftieth Session (3–21 July 2017), A 72/17, para 264. 20. ↑ Opinion 2/13 dated 18 December 2014, para 182. 21. ↑ Ibid, para 183. function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post Towards a Post-Arbitration Age: The European Commission’s Fast-Track Reform of Investment Dispute Settlement appeared first on Kluwer Arbitration Blog.

New legal year begins in Bayelsa - New Telegraph Newspaper

Google International ADR News - Sun, 2017-12-10 19:43

New Telegraph Newspaper

New legal year begins in Bayelsa
New Telegraph Newspaper
She described it as an alternative dispute resolution mechanism. About 106 issues she said were filed at the beginning of the year. 88 were disposed-off while16 were pending. She advised lawyers to encourage litigants to utilize the mechanism of ...

Stone Soup:  Takeaways From New Hampshire Mediation Training

ADR Prof Blog - Sun, 2017-12-10 13:27
Recently, Susan Yates and I conducted mediation trainings on behalf of the United States District Court for the District of New Hampshire, the New Hampshire Judicial Branch Office of Mediation and Arbitration, and the University of New Hampshire, School of Law. As part of the trainings, we collected survey data and focus-group-like comments from the … Continue reading Stone Soup:  Takeaways From New Hampshire Mediation Training →

Stone Soup:  Model for Gathering Data at Continuing Education Programs

ADR Prof Blog - Sun, 2017-12-10 13:27
Recently, Susan Yates and I conducted mediation trainings on behalf of the United States District Court for the District of New Hampshire, the New Hampshire Judicial Branch Office of Mediation and Arbitration, and the University of New Hampshire, School of Law. As part of the trainings, we collected survey data and focus-group-like comments from the … Continue reading Stone Soup:  Model for Gathering Data at Continuing Education Programs →

'Need institutional arbitration system to get investment' - Press Trust of India

Google International ADR News - Sun, 2017-12-10 01:05

Press Trust of India

'Need institutional arbitration system to get investment'
Press Trust of India
"It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations," he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

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'Need institutional arbitration system to get investment' - Press Trust of India

Google International ADR News - Sun, 2017-12-10 01:05

Press Trust of India

'Need institutional arbitration system to get investment'
Press Trust of India
"It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations," he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

and more »

Human Right Day: UNHER/NBA sensitize IDPs on their rights - New Telegraph Newspaper

Google International ADR News - Sat, 2017-12-09 21:20

New Telegraph Newspaper

Human Right Day: UNHER/NBA sensitize IDPs on their rights
New Telegraph Newspaper
In her goodwill message, the Director Borno State High Court, Barrister Hadiza Magaji, said, to ensure amicable dispute resolution, the court has provided an Alternative Dispute Resolution Centre and called on the IDPs to use the opportunity for out of ...

A Beacon in the American South: International Business Disputes in an Era of Receding Globalism

Kluwer Arbitration Blog - Sat, 2017-12-09 17:46

Christopher Campbell

On the heels of a year that has seen the rise of populist nationalism, skepticism of multilateral trade agreements and calls to tighten in some ways the flow of people across borders – perhaps most visibly in the United States and across Europe, but with manifestations elsewhere – many communities saw a retreat from international collaborations. For some, these developments represent a much-needed course correction to protect national security and address macro-economic trends that have hurt workers. Others see them as harbingers of the demise of the post-World War II global world order. These notions set the table for the 6th Annual Conference of the Atlanta International Arbitration Society (AtlAS), held in Atlanta, Georgia, on 22 & 23 October 2017, discussing “International Business Disputes in an Era of Receding Globalism.

On 22 October, the conference opened at the Atlanta Center for International Arbitration and Mediation of Georgia State University, with a panel discussion focusing on perspectives from several countries regarding international arbitration. The panel featured speakers from the United States, United Kingdom and Canada and was co-hosted by the ICC Young Arbitrators Forum and the AtlAS Young Practitioners Group.

Thereafter, the main events of the afternoon were the tertulia discussions — debates aiming to discuss theoretical and practical approaches within a more relaxed informal context — that were hosted by advocates, academics, and institutional personnel from around the world. The sessions, which were conducted in two consecutive hour-long blocks and spanned through several rooms, examined various topics:

  1. Transparency, privacy and confidentiality in international arbitration,
  2. Party selection of arbitrators versus institutional selection in international arbitration,
  3. The “Americanization” of international arbitration? Discovery? Advocacy styles?,
  4. The impact of gender diversity in international arbitration.

These discussions were held with the conference theme in mind, and the hosts pushed attendees to answer topical questions regarding how decreasing globalism might change each of these genres of discussion.

As a host for the first panel, [1. I would like to humbly thank the Atlanta International Arbitration Society for their invitation to lead this discussion and for featuring my article We Want to Be in the Room Where it Happens: A Demand for Practical Transparency in International Commercial Arbitration] namely “Transparency, privacy and confidentiality in international arbitration”), there were several major conclusions that I observed. First, when inquiring whether international arbitration needs greater transparency, one must first distinguish international commercial arbitration and investor-State dispute resolution. Clearly, there are many reasons why private parties, whom have agreed to commercial arbitration, would desire transparency in one sense, yet disfavor greater transparency in others. For example, parties may desire organizational insight into how institutions operate, while those same parties likely would not encourage transparency into the substance of the proceedings. On the other hand, when matters of public interest are at stake, as may be more-typically the case in investor-State dispute resolution, the attendees seemed to unanimously agree that greater transparency was a good thing for such proceedings. Professor Andrea Bjorkland of McGill University observed that investor-State disputes brought under the North American Free Trade Agreement offer a high level of transparency as to the pleadings, exhibits, memos, and awards, that may provide a useful model for citizen-friendly transparency for other regimes that utilize investor-State dispute resolution.

Second, Professor Bjorkland highlighted, both during this discussion and a subsequent panel, the advent of the Mauritius Convention on Transparency. Although the convention has twenty-six signatories, only three of those have ratified the treaty; Canada, Mauritius and Switzerland. The treaty aims to provide States and regional economic integration organizations with an efficient mechanism that extends the scope of the Transparency Rules already existing under UNCITRAL to investment treaties concluded before April 2014. The hope is that this convention will help ensure that both public interest in such arbitrations and the interest of the parties to resolve disputes are taken into account in a fair and efficient manner. However, it is of course important to note that mechanisms to create this greater transparency may be costly and inconvenient for the parties involved.

Finally, with regard to this tertulia, it is humorous to note that while both sessions eventually agreed that greater transparency in commercial arbitration–in terms of award formation and other stages of dispute resolution–was a positive development, every attendee thought that such transparency should begin with other disputes and not their own.

The conference shifted focus to its major theme on the second day, October 23, during which panel discussions theorized how international arbitration might evolve to meet changing perceptions toward globalism. Because of the pertinent and broad nature of the conference’s topic, there were many take-aways to note, however, here are some that resonated most with me:

  1. Supremacy of Arbitration. Panelist and attendees alike apparently agreed that international commercial arbitration is still the most predominant way of resolving disputes worldwide, and its evolution is somewhat of trial-and-error process. Discovery, Third Party funding and other issues of this process will ultimately respond to clients’ demands more broadly.
  2. Necessity. While perception of globalism may change, the practical realities do not. Clients worldwide still demand dispute resolution in a neutral, efficient manner, and no national court system currently provides a more satisfactory manner than commercial arbitration.
  3. Perception. Mostly U.S. panelists, with others joining, expressed frustration with the knowledge level of laypersons, and even of some clients, regarding the operation of arbitration. Notably, poor reporting from U.S. media has extrapolated from negative aspects of Consumer Arbitrations across the entire practice area. Panelists encouraged AtlAS and other arbitral centers to undertake educational campaigns to combat misinformation.
  4. Gender and Minority Representation. All present agreed that in order for international arbitration to grow there needed to be more robust and genuine discussion around both: i) greater representation of women, and racial minorities on arbitration panels and within institutions, and ii) less tolerance for discriminatory behavior or rhetoric. One attendee suggested a substantive rule change that would require equal representation of women, and another proposed more programs explicitly granting access to under-represented minorities. However, one panelist pointed out that, especially in commercial arbitration—notwithstanding counsel and institutions’ role in advising clients to consider arbitrators from different and diverse backgrounds—these determinations were ultimately made by parties/clients, not the institutions.
  5. Competition. As competition increases among arbitral centers, the centers with the best and accommodations will succeed. Relevant accommodations include not only substantive rules and means for housing and resolving the dispute, but also support from regional judiciary in supporting arbitral proceedings — or in the case of the U.S., the ability for parties, witnesses and others to gain access to the venue at all. During both informal and formal discussion, panelists observed that other venues in North America, namely Canada, were advertising their arbitral venues as viable alternatives in light of recent political instability and practical access to venues in the United States.

Furthermore, several panelists noted that Atlanta was an exceptional venue because of its lower cost compared to other American cities, ease of airport access, and to one of its city mantras “Too busy to hate,” which Atlanta practitioners hoped would allow this city to become a Sanctuary City for International Arbitration.

In summation, conference was a quality culmination of discourse regarding international arbitration, and a rallying cry that U.S. practitioners, especially those in Atlanta and in the American South, will not flee from the ever-increasing international battlefield.

 

 

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Need institutional arbitration system to get investment: CJI - Ibcworldnews

Google International ADR News - Sat, 2017-12-09 05:55

Ibcworldnews

Need institutional arbitration system to get investment: CJI
Ibcworldnews
“It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations,” he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

and more »

“Need institutional arbitration system to get investment” - Bureaucracy Today

Google International ADR News - Sat, 2017-12-09 04:51

“Need institutional arbitration system to get investment”
Bureaucracy Today
"It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations," he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

and more »

“Need institutional arbitration system to get investment” - Bureaucracy Today

Google International ADR News - Sat, 2017-12-09 04:50

“Need institutional arbitration system to get investment”
Bureaucracy Today
"It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations," he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

and more »

Need institutional arbitration system to get investment: CJI - Press Trust of India

Google International ADR News - Sat, 2017-12-09 04:41

Press Trust of India

Need institutional arbitration system to get investment: CJI
Press Trust of India
"It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations," he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

and more »

'Need institutional arbitration system to get investment' - Press Trust of India

Google International ADR News - Sat, 2017-12-09 04:41

Press Trust of India

'Need institutional arbitration system to get investment'
Press Trust of India
"It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations," he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

and more »

Need institutional arbitration system to get investment: CJI - Hindu Business Line

Google International ADR News - Sat, 2017-12-09 03:35

Hindu Business Line

Need institutional arbitration system to get investment: CJI
Hindu Business Line
“It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations,” he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

and more »

Need institutional arbitration system to get investment: CJI Dipak Misra - Economic Times

Google International ADR News - Sat, 2017-12-09 02:25

Economic Times

Need institutional arbitration system to get investment: CJI Dipak Misra
Economic Times
"It is not the human nature alone but the commercial perceptions, the clauses in the contract and swings in the business sometimes attract arbitrations," he said, adding that alternative dispute resolution system has gained priority and arbitration is ...

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