Feed aggregator

Tyler Technologies Inc.: Tyler Technologies and FairWay Resolution Limited Make Online Dispute Resolution a Reality ... - The Wall Street Transcript

Google International ADR News - Thu, 2018-05-31 10:07

Tyler Technologies Inc.: Tyler Technologies and FairWay Resolution Limited Make Online Dispute Resolution a Reality ...
The Wall Street Transcript
FairWay is the largest alternative dispute resolution (ADR) provider in New Zealand and delivers services for all aspects of the conflict management cycle. Its stated purpose is leading the prevention and resolution of disputes, and this is achieved by ...

Mediation congress begins this Friday - The Daily Herald (press release)

Google International ADR News - Thu, 2018-05-31 09:33

The Daily Herald (press release)

Mediation congress begins this Friday
The Daily Herald (press release)
PHILIPSBURG--The Ministry of Public Health, Social Development and Labour VSA and Association of Netherlands Municipalities VNG International will be hosting the first Mediation Congress this Friday, made possible by financial support from the Dutch ...

Tyler Technologies and FairWay Resolution Limited Make Online Dispute Resolution a Reality in New Zealand - Business Wire (press release)

Google International ADR News - Thu, 2018-05-31 08:17

Business Wire (press release)

Tyler Technologies and FairWay Resolution Limited Make Online Dispute Resolution a Reality in New Zealand
Business Wire (press release)
FairWay is the largest alternative dispute resolution (ADR) provider in New Zealand and delivers services for all aspects of the conflict management cycle. Its stated purpose is leading the prevention and resolution of disputes, and ... “We're thrilled ...

Nigerian Newspapers: Today Thursday News - Nigeria News

Google International ADR News - Thu, 2018-05-31 03:45

Nigeria News

Nigerian Newspapers: Today Thursday News
Nigeria News
The Federal Airports Authority of Nigeria yesterday announced that it had detected and picked up over 95 per cent of travellers who had high fever as they travelled through the Nnamdi Azikiwe International Airport, Abuja. FAAN said this was in its bid ...

and more »

Data-Driven Decision-Making: From Fine Wine to Fine Arbitrators

Kluwer Arbitration Blog - Thu, 2018-05-31 03:10

Catherine A. Rogers

In virtually every sector of modern business, data is enhancing if not replacing intuition as the basis for making decisions. This trend holds even for assessments as seemingly subjective and rarified as predicting the quality—and hence price—of an exquisite French Bordeaux.

In selecting international arbitrators, however, intuition still predominates. For example, a recent industry survey by Bryan Cave Leighton Paisner found that the most important qualities in selecting an arbitrator are identified as “expertise” (according to 93% of respondents) and “efficiency” (according to 91%). Expertise and efficiency, however, are not easy to measure or quantify.

These qualities are not credentials that are listed on arbitrators’ CVs. Instead, expertise and efficiency are cumulative, largely intuitive assessments that are drawn from a number of sources and metrics. Moreover, what constitutes the best expertise or means for achieving efficiency may vary from case to case depending on a client’s needs.

Given the confidential nature of arbitration, gathering the relevant information means personal phone calls with individuals who have appeared before a potential arbitrator or, better yet, sat as a co-arbitrator with that person. This kind of ad hoc individual research largely confines assessment of potential arbitrators to feedback from a limited number of individuals. Despite this limited scope, ad hoc research can be time-consuming (and therefore costly), but not always reliable. Without broad data against which to evaluate these inputs, however, it is impossible to determine whether the feedback is broadly representative, readily transferrable to the case at hand, or just an outlier.

Another problem with ad hoc information gathering is that it creates an information bottleneck. Newer and more diverse arbitrators cannot readily develop international reputations as long as personal references are the primary means for determining expertise and efficiency. This informational bottleneck is increasingly intolerable in light of concerns about the lack of diversity among international arbitrators and in-house counsel with corporate benchmarks and applying greater pressure to find newer arbitrators about whom there is a scarcity of information.

Arbitrator Intelligence (AI) seeks to solve these problems by bringing data-driven analysis to arbitrator appointments. The means to these ends is the recently launched Arbitrator Intelligence Questionnaire, or AIQ.

The AIQ

The idea behind the AIQ is simple. The AIQ seeks to replicate, through systematically collected feedback, the same kinds of information currently sought through personal-to-person inquiries. Data from the AIQ will not eliminate altogether the value of individualized ad hoc inquiries, but it will allow parties and counsel to tap into the collective intelligence of the global international arbitration community.

The AIQ is designed for parties, in-house counsel, external law firms and even third-party funders to complete at the end of each arbitration. The web-based questionnaire asks a number of background questions about the case, and then inquires about a number of features that are relevant for future arbitrator selection. For example (to paraphrase a few questions from the AIQ): Did the arbitrators grant document production? If so, what standard did they use? Did the arbitrators ask questions that demonstrated familiarity with the record? Did contract interpretation in the award reflect a plain meaning analysis of the words in the contract? Or did it consider the drafting history? Or did it seek to adopt a more flexible interpretation to achieve fairness and equity in the outcome of the dispute?

As a practical matter, the AIQ is divided into two phases, and each phase can be completed in 10 minutes or less. Phase I concentrates on objective background information about the case, and can be completed by anyone who has access to the award or case file. Phase II contains questions that relate to the conduct of the arbitration and, in some instances, seek professional assessments. As a consequence, Phase II should be completed by an attorney or party who actively participated in the proceedings. Certain background information from Phase I questions automatically prefills the relevant questions in Phase II to make it even faster to complete.

In developing the questions for the AIQ, AI employed state-of-the-art survey design (in coordination with the Penn State Survey Research Center), as well as extensive public and expert input. The ultimate goals were multiple and ambitious: to ensure quality feedback, to avoid questions that even implicitly preferenced certain cultures or legal traditions, to ensure fairness to arbitrators, and to promote systematic responses.

Achieving systematic completion of AIQs is Arbitrator Intelligence’s biggest challenge. To that end, AI is entering into collaboration agreements with various arbitral institutions around the world. Under these agreements, institutions agree to forward the AIQ to parties and lawyers at the end of each arbitration, and in exchange AI will give collaborating institutions free access to AI Reports (see below).

To date, AI has formally entered into such agreements with a few institutions (such as Singapore International Arbitration Centre and AMCHAM Quito), and is in discussions with more than a dozen other institutions. So watch for emails coming to you from arbitral institutions at the end of your arbitration!

AI is also inviting parties and law firms to support it by signing The Arbitrator Intelligence Pact. By signing the AI Pact, parties, law firms, individual counsel, arbitrators, arbitral institutions, and arbitration organizations commit to supporting AI’s goals of transparency, accountability, and diversity by helping to promote completion of AIQs regularly at the conclusion of arbitrations.

Notably, one of the world’s leading law firms has not only signed The Pact, but also agreed to provide retrospective AIQs on cases completed in the last few years. AI is currently in discussions with several other firms that are also considering providing retrospective AIQs. AIQ data is essential for AI to develop AI Reports, so consider joining these industry leaders by completing AIQs on recently completed arbitrations.

Once sufficient information has been collected through the AIQ, Arbitrator Intelligence will begin publishing AI Reports, through its partner WoltersKluwer.

Arbitrator Intelligence Reports

AI Reports are still in the development phase, and the nature and scope of AI Reports will inevitably evolve over time, particularly as AI’s base of data expands. Nevertheless, it is already easy to see from some preliminary mock-ups how AI Reports will help promote more data-driven decisions about arbitrator appointments.

By way of preview, consider the following chart regarding a (hypothetical) arbitrator’s approach to document production:

Figure A
(based on hypothetical data—for illustrative purposes only)

This basic chart provides a systematic comparison of the arbitrator’s historical practice in granting document production (the light blue bars to the left), as compared with the document production practices of all arbitrators in the sample oil and gas cases (the dark blue bars to the right).

There are several advantages to this approach over ad hoc individual inquiries, or self-reporting by arbitrators. First, when asked to comment on their own practices, most arbitrators explain that their approach will vary depending on the type of case. This chart examines disputes within a particular industry (oil and gas), but it could alternatively evaluate the data based on case size, applicable law, or some combination of these or other variables.

Even more importantly, Figure A above and Figure B below demonstrate the benefits of assessing individual cases in comparison to a baseline of data in similar cases.

Figure B
(based on hypothetical data—for illustrative purposes only)

In Figure B, the y-axis indicates how many days an award is rendered after close of proceedings (defined in the AIQ as the last day of hearings or the day of the last post-hearing submissions). The x-axis indicates the size of the case as a proxy for complexity (on the assumption that more time is needed to draft awards in more complex cases). The blue line shows the relationship between amount at stake and length of hearing for all arbitrators presiding in oil and gas cases in the sample. Each red x is a case decided by the arbitrator of interest.

Like Figure A above on document production, the independent baseline in Figure B (the blue line) provides a valuable check against mistaken assumptions about the representativeness of performance in a particular case. For example, by luck of the draw, ad hoc research may reveal two examples of cases in which an arbitrator rendered awards more than 200 days after the close of proceedings. Based on this feedback, a client may conclude that this arbitrator is simply too slow and thus disqualified from consideration. But that assessment may be different if broader data reveals that only a few of the arbitrator’s awards took longer than 200 days or that, depending on the size of the case, a 200-day timeframe is well within the norm for all similar cases.

These charts and graphs are prototypes for off-the-shelf AI Reports and, again, are based on hypothetical data. AI Reports will provide numerous forms of data analysis on various topics, and the range will inevitably grow and develop over time as more data is generated.

In the future, AI also anticipates being able to produce customized reports as more data is available. For example, in some cases, the ability to obtain (or avoid) document production may be the lynchpin of a party’s strategy. In that case, a party may want a bar chart similar to the Figure A above, but instead each of the three arbitrators on its shortlist.

Of course, AI Reports will identify the limitations of the data, particularly in production of early AI Reports. More generally, there are a number of challenges in analyzing data from phenomena as complex as arbitral disputes. Such challenges include accounting for different institutional rules, differences in appointment of the arbitrator (was the arbitrator party-appointed, or sitting as a chair or sole arbitrator?), and changes in data and to arbitration practice over time.

As an academically affiliated entity, however, Arbitrator Intelligence is uniquely positioned to meet these complex challenges. AI’s Board of Directors will oversee development of the AI Reports and the software needed to generate them. The Board is composed primarily of university professors who collectively possess the essential range of expertise in relevant fields, including empirical research in international arbitration, data analytics in the legal profession, mass data collection and strategic decision-making, econometrics, artificial intelligence, and information systems.

In addition to its Board of Directors, AI also has a Board of Advisors that brings to the project diverse perspectives from among in-house and external counsel, leading arbitrators, institutional representatives, and academics specializing in international arbitration.

Conclusion

When Arbitrator Intelligence was first conceived, major law firms stated (unabashedly!) that they hoped this project would fail. AI would be seeking to gather and make widely available information that they sold to their clients, information that signaled their value-added expertise, information that distinguished them from lesser competitors. And they did not want the competition.

Today, given the size and complexity of the market, the reaction is quite different. Even the leading law firms with the largest networks for collecting information recognize that there is no such thing as “enough information” about arbitrators. In-house counsel are increasingly demanding more than mere intuition to justify arbitrator appointments. They want concrete data and analysis that their colleagues use in making other business decisions and that they will especially need if they have to explain an unexpected result to management. Even arbitral institutions, which also appoint arbitrators, increasingly need more information to optimize their appointments and remain competitive.

For those of us who enjoy drinking good wine, but not necessarily investing in wine futures, we may still prefer the tasting notes of well-known aficionados and recommendations from a sommelier’s tastevin. But for parties selecting the individuals who will pass judgment on their most important disputes, precision is critical and should not be left to intuition alone. Arbitrator Intelligence will liberate arbitrator selection from the 19th Century’s telephone and introduce it to the 21st Century’s data-driven analytic solutions.

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

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


The post Data-Driven Decision-Making: From Fine Wine to Fine Arbitrators appeared first on Kluwer Arbitration Blog.

Encompassing regional variations in dispute resolution - CDR News Magazine

Google International ADR News - Thu, 2018-05-31 02:52

Encompassing regional variations in dispute resolution
CDR News Magazine
A report published earlier this month by Herbert Smith Freehills (HSF), PwC and the International Mediation Institute contains a number of important regional findings, as well as insight into broader alternative dispute resolution (ADR) trends.

Encompassing regional variations in dispute resolution - CDR Magazine

Google International ADR News - Thu, 2018-05-31 02:52

Encompassing regional variations in dispute resolution
CDR Magazine
A report published earlier this month by Herbert Smith Freehills (HSF), PwC and the International Mediation Institute contains a number of important regional findings, as well as insight into broader alternative dispute resolution (ADR) trends.

JOHESU vs FG: National Industrial Court issues another ruling - Daily Post Nigeria

Google International ADR News - Thu, 2018-05-31 01:45

Daily Post Nigeria

JOHESU vs FG: National Industrial Court issues another ruling
Daily Post Nigeria
The NGO, Incorporated Trustees of Kingdom Human Rights Foundation International, in the motion prayed the court to direct the workers to resume work and go back to negotiation table. In his ruling, Adejumo ordered the Ministers of Health and Labour, ...

and more »

Strike: Court Orders FG, JOHESU Back to Negotiation table - THISDAY Newspapers

Google International ADR News - Wed, 2018-05-30 21:08

THISDAY Newspapers

Strike: Court Orders FG, JOHESU Back to Negotiation table
THISDAY Newspapers
The National Industrial Court in Abuja has said it has taken over the negotiations between the federal government and the Joint Health Sector Union (JOHESU) in its Alternative Dispute Resolution (ADR) Centre. The ruling of the court was made available ...

and more »

Meet the Candidates on Tuesday's June 5 ballot for County Elections - Birmingham Times

Google International ADR News - Wed, 2018-05-30 20:27

Birmingham Times

Meet the Candidates on Tuesday's June 5 ballot for County Elections
Birmingham Times
Dickerson served as a senior official in the Clinton Administration and was senior director for Strategic Communications for U.S. Agency for International Development in Afghanistan. ...... Pringle has served as vice president of the Juvenile Justice ...

Strike: Court orders FG, JOHESU back to negotiation table - The Nation Newspaper

Google International ADR News - Wed, 2018-05-30 16:07

The Nation Newspaper

Strike: Court orders FG, JOHESU back to negotiation table
The Nation Newspaper
The National Industrial Court, Abuja, says it has taken over the negotiations between the Federal Government and the Joint Health Sector Union in its Alternative Dispute Resolution (ADR) Centre. The ruling of the court was made available to the News ...

and more »

ISDS Under the CPTPP and Beyond: Japanese Perspectives

Kluwer Arbitration Blog - Wed, 2018-05-30 07:00

Yuka Fukunaga

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) was signed by 11 of the original TPP Partners on 8 March 2018 in Santiago, Chile. After the United States announced its withdrawal from the original TPP on 23 January 2017,1) The announcement made it clear that the United States was not ‘obliged to refrain from acts which would defeat the object and purpose of’ the TPP, as provided in Article 18 of the Vienna Convention on the Law of Treaties. See Catherine H. Gibson (Assistant Editor for North America), ‘Delayed Ratification, TPP, and the United States’, Kluwer Arbitration Blog, October 20 2016, http://arbitrationblog.kluwerarbitration.com/2016/10/20/delayed-ratification-tpp-united-states/ jQuery("#footnote_plugin_tooltip_2908_1").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Japan took the lead in the negotiations of the CPTPP, which concluded successfully in an exceptionally short period of time for this type of negotiations.3) Ironically, Japan was the last to join the original TPP negotiations. See David Gantz, ‘Japan’s Entry into the TPP Negotiations Raises the Economic Stakes’, Kluwer Arbitration Blog, May 20 2013, http://arbitrationblog.kluwerarbitration.com/2013/05/20/japans-entry-into-the-tpp-negotiations-raises-the-economic-stakes/ jQuery("#footnote_plugin_tooltip_2908_3").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Contrary to the expectation that a signing ceremony would be hosted by Japan as a principal driving force behind the successful conclusion, Santiago was chosen as a venue. According to a local newspaper in Japan, the choice was made deliberately with the hope that the then Chilean President Bachelet, whose term was about to expire, would push for the conclusion of the CPTPP in order to add another achievement to her legacy.2) Nikkei, Morning Edition, 9 March 2018. jQuery("#footnote_plugin_tooltip_2908_2").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

 

Article 3.1 of the CPTPP provides that the “Agreement shall enter into force 60 days after the date on which at least six or at least 50 per cent of the number of signatories to this Agreement, whichever is smaller, have notified the Depositary in writing of the completion of their applicable legal procedures.” Several original signatories have expressed a desire to complete their applicable legal procedures and bring the CPTPP into force before the end of the year.

 

In Japan, while the original TPP has already been approved by the Japanese Diet, the CPTPP as a separate agreement requires a new approval. Japanese Minister of State for Economic and Fiscal Policy, Toshimitsu Motegi, expressed his hope in a press conference that Japan’s quick completion of its domestic procedures would give momentum towards ratification by other signatories. The Japanese government is hoping to obtain the required approval during the current session of the Diet, which runs until 20 June 2018. For this purpose, the Cabinet of Prime Minister Abe officially decided on 27 March 2018 to submit the CPTPP to the Diet for approval together with a bill to make a few minor amendments to domestic law. The Diet started deliberations on the CPTPP and the bill on 17 April 2018.

 

Apart from the fact that the deliberations in the Diet could be stalled due to political scandals haunting Prime Minister Abe and his government, no major objections to the CPTPP and the bill are expected in the Diet. Concerns have been expressed about the potential impact on the agricultural sector that could be caused by the trade liberalization under the CPTPP, but the concerns have already been addressed, at least to some extent, by budgetary measures in accordance with the Comprehensive TPP-Related Policy Framework, adopted by the Cabinet on 24 November 2017.

 

On investment, the Japanese government has been an adamant supporter of the protection and promotion of investment as well as of investor-state dispute settlement (ISDS). Most of the investment agreements and regional trade agreements signed by Japan,4) As an exception, the economic partnership agreement between Japan and the Philippines as well as the one between Japan and Australia do not provide for ISDS, but the latter also provides that the parties shall review the investment chapter of the agreement “with a view to the possible Improvement of the investment environment through, for example, the establishment of a mechanism for the settlement of an investment dispute between a Party and an investor of the other Party.” See Article 14.19 of the agreement between Japan and Australia. See also Jarrod Hepburn, Mark Huber, ‘An Assessment of Australia’s Parliamentary Report on ISDS in the TPP’, Kluwer Arbitration Blog, January 5 2017, http://arbitrationblog.kluwerarbitration.com/2017/01/05/reserved-an-assessment-of-australias-parliamentary-report-on-isds-in-the-tpp/ jQuery("#footnote_plugin_tooltip_2908_4").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); including the CPTPP,5) Some signatories to the CPTPP have signed side letters to mutually exclude the application of ISDS, but Japan has chosen not to. jQuery("#footnote_plugin_tooltip_2908_5").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); contain ISDS provisions. Despite the growing skepticism about ISDS in various parts of the world, no skepticism has been publicly voiced by the Japanese government. Japan’s positive assessment of ISDS partly reflects the fact that the Japanese government has never faced investor-state arbitration so far. During the Diet deliberations on the original TPP, the government indicated that it did not envisage the possibility that Japan would be respondent in investor-state arbitration,6) See, e.g., Statements of the then Minister of Foreign Affairs, Fumio Kishida, 192nd Session of the Diet (27 October 2016). jQuery("#footnote_plugin_tooltip_2908_6").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); and that, even if it were, it would not lose.7) Statements of Prime Minister Abe, 192nd Session of the Diet (11 November 2016). jQuery("#footnote_plugin_tooltip_2908_7").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

 

ISDS is also supported by the Japanese business community.8) See, e.g., Keidanren (Japan Business Federation), The Japan Chamber of Commerce and Industry, Japan Association of Corporate Executives, & Japan Foreign Trade Council, Inc., Policy Proposal: Seeking the Swift Conclusion of the TPP11, 23 October 2017, www.keidanren.or.jp/en/policy/2017/085.html. jQuery("#footnote_plugin_tooltip_2908_8").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_8", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); For example, Keidanren (Japanese Business Federation) states in its policy statement that ISDS “plays an important role in facilitating foreign investments and improving the predictability of investment business, and this mechanism contributes to economic growth and employment expansion in investment recipient countries.”9) Keidanren, Calling for Accelerated Conclusion of Investment Agreements — Toward Establishment of 21st-Century International Investment Rules –, 15 December 2015, http://www.keidanren.or.jp/en/policy/2015/119.html. jQuery("#footnote_plugin_tooltip_2908_9").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_9", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

 

It is true that Japanese companies tend to shy away from using arbitration – either commercial or investment.10) Japanese companies are said to have an aversion to judicial procedures and to prefer an amicable solution. jQuery("#footnote_plugin_tooltip_2908_10").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_10", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); So far, there have been only three publicly known investor-state arbitration cases commenced by Japanese investors. Two of them were brought in relation to Spain’s renewable energy policies under the Energy Charter Treaty,11) JGC Corporation v. Kingdom of Spain (ICSID Case No. ARB/15/27); Eurus Energy Holdings Corporation and Eurus Energy Europe B.V. v. Kingdom of Spain (ICSID Case No. ARB/16/4). jQuery("#footnote_plugin_tooltip_2908_11").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_11", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); while the third took issue with the failure of India to provide promised subsidies to the claimant-investor.12) Lacey Yong, Treaty claims against India get under way, Global Arbitration Review 22 February 2018. jQuery("#footnote_plugin_tooltip_2908_12").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_12", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); All of the proceedings are still pending as of today. Japanese investors’ participation in investor-state arbitration may increase in the future as the Japanese government and local lawyers have been intensifying their efforts to raise awareness and understanding of ISDS among the business community.

 

Japan’s support of ISDS is contrasted with the position of the European Union (EU), which seeks to eventually replace ISDS with a permanent investment court system. The disagreement of the two sides was one of the major obstacles to the conclusion of the Economic Partnership Agreement between Japan and the EU (JEEPA). Both sides finalized the negotiations on JEEPA on 8 December 2017, but decided to continue negotiations on investment protection and investment dispute settlement. They later reached an agreement to leave out investment protection and investment dispute settlement from JEEPA. The published text of JEEPA includes certain provisions on investment liberalization, some of which, such as national treatment and most-favoured-nation treatment provisions, could also cover investment protection to some extent. According to news reports, both parties are currently considering holding a signing ceremony of JEEPA in Brussels in mid-July.13) Nikkei, Morning Edition, 13 April 2018. jQuery("#footnote_plugin_tooltip_2908_13").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_13", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); According to a press release of the European Commission, JEEPA’s entry into force does not require ratification at Member State level.14) Press Release (18 April 2018): European Commission proposes signature and conclusion of Japan and Singapore agreements, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1826. jQuery("#footnote_plugin_tooltip_2908_14").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_14", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Japan and the EU reportedly will continue negotiations on a separate agreement on investment.15) Nikkei, Morning Edition, 1 March 2018. jQuery("#footnote_plugin_tooltip_2908_15").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_15", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

 

Japan’s support of ISDS is also reflected in its position in the discussions of the United Nations Commission on International Trade Law (UNCITRAL) Working Group III on reforms of ISDS. During the last year’s session of the Working Group III, the Japanese delegation expressed doubts about the necessity of replacing the current ISDS with a permanent investment court, while showing its openness to discuss reforms to ISDS.16) IA Reporter (Luke Eric Peterson, 9 December 2017), UNCITRAL meetings on ISDS reform get off to bumpy start, as delegations can’t come to consensus on who should chair sensitive process – entailing a rare vote. jQuery("#footnote_plugin_tooltip_2908_16").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_16", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); In particular, it suggested that the value of consistency and coherence should not be overemphasized to the detriment of the diversity of investment treaty texts, by pointing out that the diversity reflects treaty negotiators’ deliberate intent to address different investment environments of each country.17) Statement of the Japanese delegation on 30 November 2017, Working Group III (Dispute Settlement), 34th session, Audio Recordings. jQuery("#footnote_plugin_tooltip_2908_17").tooltip({ tip: "#footnote_plugin_tooltip_text_2908_17", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

 

It is somewhat ironic that Japan, one of the least frequent parties to ISDS, either as the claimant investor or the respondent state, is an adamant supporter of ISDS. It might rather be that its lack of experience with ISDS keeps it from being disillusioned with ISDS. In fact, it has to be pointed out that Japan’s views on what reforms to ISDS would be needed, if not replacing it, are not yet fully formed. While Japan is not likely to withdraw its objections to a permanent investment court in any near future, its view on ISDS may develop if it faces more ISDS cases.

 

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

References   [ + ]

1. ↑ The announcement made it clear that the United States was not ‘obliged to refrain from acts which would defeat the object and purpose of’ the TPP, as provided in Article 18 of the Vienna Convention on the Law of Treaties. See Catherine H. Gibson (Assistant Editor for North America), ‘Delayed Ratification, TPP, and the United States’, Kluwer Arbitration Blog, October 20 2016, http://arbitrationblog.kluwerarbitration.com/2016/10/20/delayed-ratification-tpp-united-states/ 2. ↑ Nikkei, Morning Edition, 9 March 2018. 3. ↑ Ironically, Japan was the last to join the original TPP negotiations. See David Gantz, ‘Japan’s Entry into the TPP Negotiations Raises the Economic Stakes’, Kluwer Arbitration Blog, May 20 2013, http://arbitrationblog.kluwerarbitration.com/2013/05/20/japans-entry-into-the-tpp-negotiations-raises-the-economic-stakes/ 4. ↑ As an exception, the economic partnership agreement between Japan and the Philippines as well as the one between Japan and Australia do not provide for ISDS, but the latter also provides that the parties shall review the investment chapter of the agreement “with a view to the possible Improvement of the investment environment through, for example, the establishment of a mechanism for the settlement of an investment dispute between a Party and an investor of the other Party.” See Article 14.19 of the agreement between Japan and Australia. See also Jarrod Hepburn, Mark Huber, ‘An Assessment of Australia’s Parliamentary Report on ISDS in the TPP’, Kluwer Arbitration Blog, January 5 2017, http://arbitrationblog.kluwerarbitration.com/2017/01/05/reserved-an-assessment-of-australias-parliamentary-report-on-isds-in-the-tpp/ 5. ↑ Some signatories to the CPTPP have signed side letters to mutually exclude the application of ISDS, but Japan has chosen not to. 6. ↑ See, e.g., Statements of the then Minister of Foreign Affairs, Fumio Kishida, 192nd Session of the Diet (27 October 2016). 7. ↑ Statements of Prime Minister Abe, 192nd Session of the Diet (11 November 2016). 8. ↑ See, e.g., Keidanren (Japan Business Federation), The Japan Chamber of Commerce and Industry, Japan Association of Corporate Executives, & Japan Foreign Trade Council, Inc., Policy Proposal: Seeking the Swift Conclusion of the TPP11, 23 October 2017, www.keidanren.or.jp/en/policy/2017/085.html. 9. ↑ Keidanren, Calling for Accelerated Conclusion of Investment Agreements — Toward Establishment of 21st-Century International Investment Rules –, 15 December 2015, http://www.keidanren.or.jp/en/policy/2015/119.html. 10. ↑ Japanese companies are said to have an aversion to judicial procedures and to prefer an amicable solution. 11. ↑ JGC Corporation v. Kingdom of Spain (ICSID Case No. ARB/15/27); Eurus Energy Holdings Corporation and Eurus Energy Europe B.V. v. Kingdom of Spain (ICSID Case No. ARB/16/4). 12. ↑ Lacey Yong, Treaty claims against India get under way, Global Arbitration Review 22 February 2018. 13. ↑ Nikkei, Morning Edition, 13 April 2018. 14. ↑ Press Release (18 April 2018): European Commission proposes signature and conclusion of Japan and Singapore agreements, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1826. 15. ↑ Nikkei, Morning Edition, 1 March 2018. 16. ↑  IA Reporter (Luke Eric Peterson, 9 December 2017), UNCITRAL meetings on ISDS reform get off to bumpy start, as delegations can’t come to consensus on who should chair sensitive process – entailing a rare vote. 17. ↑ Statement of the Japanese delegation on 30 November 2017, Working Group III (Dispute Settlement), 34th session, Audio Recordings. 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
€ 240


The post ISDS Under the CPTPP and Beyond: Japanese Perspectives appeared first on Kluwer Arbitration Blog.

Wake Up Call: Big Law's $11 Million Dollar Woman - Bloomberg Big Law Business

Google International ADR News - Wed, 2018-05-30 06:57

Bloomberg Big Law Business

Wake Up Call: Big Law's $11 Million Dollar Woman
Bloomberg Big Law Business
JAMS, the alternative dispute resolution services provider, said it added an inclusion rider option to its workbooks for domestic and international clauses, aimed at supporting businesses' efforts to increase diversity on arbitration panels. (JAMSadr).

South Africa: The Advent Of Litigation Funding And What Does It Involve? - Mondaq News Alerts

Google International ADR News - Wed, 2018-05-30 03:49

South Africa: The Advent Of Litigation Funding And What Does It Involve?
Mondaq News Alerts
Our offices in South Africa and Tanzania are strategically placed to provide advice to investors on all aspects of international arbitration in Africa, including, alternative dispute resolution, funding of international arbitrations and recognition and ...

NA passed 189 bills in last five years - Business Recorder (press release)

Google International ADR News - Wed, 2018-05-30 00:48

Business Recorder (press release)

NA passed 189 bills in last five years
Business Recorder (press release)
Similarly, the Companies Act, 2017, the Alternative Dispute Resolution Act, 2017, the Representation of the People Act, 2017, the National Counter Terrorism Authority (Amendment) Act, 2017, the Witness Protection, Security and Benefit Act, 2017, the ...

Stone Soup:  Q&A at the ABA

ADR Prof Blog - Tue, 2018-05-29 20:59
This is a Stone Soup continuing education report about the program on Stone Soup course assignments at the ABA conference, “Lessons From the Stone Soup Project and Ideas for the Future.” The program included an overview of the Stone Soup Project (SSP), presentations by four colleagues who used Stone Soup in their courses, and Q&A … Continue reading Stone Soup:  Q&A at the ABA →

Around 189 bills passed by NA in last five years - Business Recorder (press release)

Google International ADR News - Tue, 2018-05-29 16:38

Business Recorder (press release)

Around 189 bills passed by NA in last five years
Business Recorder (press release)
Similarly, the Companies Act, 2017, the Alternative Dispute Resolution Act, 2017, the Representation of the People Act, 2017, the National Counter Terrorism Authority (Amendment) Act, 2017, the Witness Protection, Security and Benefit Act, 2017, the ...

NA passes 189 bills in last five years - Business Recorder (press release)

Google International ADR News - Tue, 2018-05-29 16:38

Business Recorder (press release)

NA passes 189 bills in last five years
Business Recorder (press release)
Similarly, the Companies Act, 2017, the Alternative Dispute Resolution Act, 2017, the Representation of the People Act, 2017, the National Counter Terrorism Authority (Amendment) Act, 2017, the Witness Protection, Security and Benefit Act, 2017, the ...

NA passes 189 bills in five-year tenure - Pakistan Today

Google International ADR News - Tue, 2018-05-29 12:13

Pakistan Today

NA passes 189 bills in five-year tenure
Pakistan Today
Similarly, the Companies Act, 2017, the Alternative Dispute Resolution Act, 2017, the Representation of the People Act, 2017, the National Counter Terrorism Authority (Amendment) Act, 2017, the Witness Protection, Security and Benefit Act, 2017, the ...

NA Passes 189 Bills In Last Five Years - UrduPoint News

Google International ADR News - Tue, 2018-05-29 09:20

UrduPoint News

NA Passes 189 Bills In Last Five Years
UrduPoint News
Similarly, the Companies Act, 2017, the Alternative Dispute Resolution Act, 2017, the Representation of the People Act,2017, the National Counter Terrorism Authority (Amendment) Act, 2017, the Witness Protection, Security and Benefit Act, 2017,the ...

Syndicate content