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SOAS Arbitration Report 2018 Bolsters Conversation on Arbitration in Africa

Kluwer Arbitration Blog - Sat, 2018-10-20 23:20

Osasiuwa Edomwande

Young ICCA

On 2 May 2018, the maiden edition of the School of Oriental and African Studies (SOAS) Arbitration in Africa Survey was launched at the SOAS Arbitration in Africa Research Conference in Kigali, Rwanda. The survey, conducted using an online questionnaire, focused on perspectives of African arbitration practitioners in domestic and international arbitration.

The insufficiency of information on the availability of skilled African arbitration practitioners, and enquiries about the place of the African arbitration practitioner in the global arbitration arena, were some of the reasons that necessitated the survey. This survey debunks the myth that ‘African arbitrators are not available or lack expertise and experience’ by showing that there is a large number of arbitrators on the African continent, and they are well-trained. It serves as empirical data on the skills, expertise and experience of African arbitration practitioners that will aid future discussions and developments in the area of Arbitration and Alternative Dispute Resolution (ADR) in Africa.

Profile of the African Arbitration Practitioner

The survey, which was open for responses between 4 December 2017 and 12 February 2018, received 191 responses during the period. The first group of questions sought to understand the profession, domicile and arbitration experience of the respondents. 90.6% of the respondents to the survey are lawyers, with few representations from academics, engineers, surveyors and other professions, and the majority of the respondents are domiciled in Nigeria. 83.8% of the respondents describe themselves as arbitration practitioners acting in the capacities of counsel, arbitrator, registrar or tribunal secretary, academic, consultant and legal adviser.

Lawyers are known to be the primary professionals who engage in the resolution of disputes, though there are dispute resolvers or resolution specialists who may not necessarily be lawyers. Aside from legal practitioners, respondents to the survey could (in addition to those listed above) also have been architects, accountants, physicians and nurses. The arbitration pool is becoming increasingly diverse in terms of the specialization of arbitration practitioners.

81.7% of the respondents have undergone formal training in arbitration law and practice, while 23% studied arbitration as part of a higher degree at university. 72% of these were trained by the Chartered Institute of Arbitrators (UK) – an arbitration institution with an international network. This lends credence to the fact that Africa has a large pool of arbitrators who can serve dispute resolution needs on the international and domestic scene by applying best practices. It is essential that arbitration practitioners have good training or first-hand experience with the process. This training, which should be continuing, is best served by membership of arbitration organizations/institutions. This affords potential and active arbitration practitioners with the opportunity to garner international best practices that are paramount for work as arbitrator, arbitration counsel or arbitral secretary.

Experience of African Arbitration and ADR Practitioners

The second group of questions analysed information to understand the experience of the respondents in arbitration in the last five years (2012-2017) which served as the reporting period. The survey also measured participation in mediation. The results show that the African arbitration practitioner also engages in other forms of dispute resolution particularly mediation with 45.5% of the respondents stating that they have acted as mediators in the last five years. 64.4% of these respondents reported that they have sat as mediators in one to five mediations over the reporting period.

The Future of Arbitration and ADR in Africa

The survey was conducted in three languages: English, Arabic and French, with the majority of responses in English. The report provides data on active participation in 19 of the 54 countries in Africa. As there are six Lusophone countries in Africa, the survey reporters expect to add Portuguese as one of the languages in future surveys in order to measure the perspectives of arbitration users in those countries and for more representative information about Arbitration in Africa.

Furthermore, only three (Benin, Cameroon and Togo) of the 17-member states of the OHADA (Organisation pour l’harmonisation en Afrique du droit des affaires – Organisation for the Harmonization of Business Law in Africa) are represented in the survey. For the OHADA member states, three revised laws on Arbitration and ADR came into effect in March 2018: the new Uniform Act on Arbitration Law, the revised Arbitration Rules of the Common Court of Justice and Arbitration (CCJA) and a new Uniform Act on Mediation. These developments are sure to increase the use in arbitration and ADR processes of African practitioners and on the African continent. It will be interesting to see future results from more OHADA member states.

The African Continental Free Trade Area Agreement (AfCFTA) signed by 44 out of the 55 African Union member states in April 2018 will also welcome an increase in African trade which inevitably leads to an increase in commercial disputes. The international dispute resolution community looks forward to the benefits of the South African International Arbitration Act no. 15 of 2017 and envisions the reforms that will arise from Nigeria’s Arbitration and Conciliation Bill of 2017 which is currently before the National Assembly. As arbitration and ADR practitioners continue to raise awareness of ADR methods outside of litigation and parties decide to choose arbitration and ADR as methods of resolving disputes, more of this type of surveys will be needed to measure trends and shape the future of arbitration and ADR.

The survey itself has a promising future. I commend the researchers and supporters – the firm of Broderick Bozimo & Company – for taking the step to provide data in this area and encourage everyone to read the full survey report here.

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Tips from the top: Young ICCA interviews Nora Fredstie

Kluwer Arbitration Blog - Sat, 2018-10-20 21:25

Young ICCA

Young ICCA

Source: personal archive

Nora is an associate in the Paris office of Latham & Watkins and a member of the firm’s International Arbitration Practice. Her work focuses on international investment arbitration, international commercial arbitration, and public international law.

She acts for clients across a broad spectrum of sectors, including investment, oil and gas, energy, construction, pharmaceutical, and automotive. Nora operates in a range of geographic locations and with a current emphasis on South American related and intra-EU disputes. She has acted and participated in international arbitrations conducted under the ICC, ICSID, LCIA, SCC, CRCICA and UNCITRAL arbitration rules. Further to her counsel work, she has acted as administrative secretary to arbitral tribunals, both in commercial and in investment arbitrations. She has also assisted with IBA and ICC projects and speaks at conferences on various international arbitration topics.

Originally from Norway, she completed her LLB/BA at the Australian National University and an LLM in International Dispute Settlement (MIDS) in Geneva, Switzerland. She is an Attorney and Counselor at Law in the State of New York as well as a Solicitor in England and Wales. Prior to joining Latham & Watkins in Paris, Nora gained experience working in Australia, the Netherlands, Chile, Norway, and France.

What drew you to the world of International Arbitration?

The mind-against-mind intellectual challenges you are faced with is what drew me to international arbitration. For example, I love exchanging with experts. There is something uniquely challenging about getting an expert report in a field you do not know, or a legal system you have not encountered, and start learning and challenging the statements of a preeminent expert. In a very short time, you will have to understand the field in order to challenge their conclusions and to undermine their points. It is invigorating. I have the same feeling about cross-examinations.

When did you start laying the groundwork for a career in International Arbitration? (e.g., was it while in law school, during a moot court, during your career or placed on a case within your firm)

ICSID arbitration was the first thing I learned about international arbitration while doing the Jessup moot for the ANU. I remember pronouncing it “I”-“C”-“S”-“I”-“D”. At this point, international arbitration was only a part of the international law career I was pursuing. I therefore did not do any international arbitration related courses in law school. After law school, I did an internship at the ICTY in The Hague, working for the Radovan Karadžić defence team. International Criminal Law did not turn out to be what I expected. I therefore quickly looked around to do something else. In The Hague, I had come across individuals working with the Permanent Court of Arbitration. The way they described their job made it sound like real litigation on an international plane. I decided that it was what I wanted to do and started the MIDS LLM in Geneva, Switzerland. MIDS was my first full introduction to international arbitration. Thereafter, I built my career through an internship with BMAJ Abogados in Chile and Freshfields in Paris until I was hired at Latham & Watkins.

What kind of groundwork did you do to set yourself up? (e.g., what steps did you take to enter the field?)

I first did a masters specialising in international arbitration and then followed-up with internships in the field. I know some older practitioners still advise that candidates pursue a career domestically before moving to international arbitration. It is my opinion that this is less and less true when looking at the candidates being hired for associate positions in the main international arbitration hubs. I believe doing this specialised international arbitration masters gave me the grounding I needed to enter the field. Not only did I leave with a broad knowledge of the field, I also had the insight to know where there were job opportunities and a network that would make me happy living in any of the big international arbitration centres.

Describe a pivotal moment in your career in arbitration and how did that affect your career (e.g., an opportunity to work with a prominent arbitrator/on a pioneering case?)

A pivotal moment of my career is when I decided to join an arbitration group that had just been set up. I joined Latham & Watkins in Paris. Although Fernando Mantilla-Serrano (the group’s leader) and John Adam (the group’s counsel), had a reputation as being excellent practitioners, it was still a gamble. It is obviously more comfortable to join an established team, where everything has been set up and everyone has a specific role.

The gamble paid off in a big way. Within a few weeks, I was working on a number of large cases in a variety of areas. I was given responsibility and tasks that were more akin to mid-level associates in more established groups. For example, I got to do my first cross examination in international arbitration in my second month as a second-year associate. While I initially felt like I was drowning, I would not have wanted it any other way. I cannot imagine that I would learn that much in such a short period if I were not with Fernando and John in Latham’s Paris arbitration group.

It was very educational to see an arbitration practice created around me. Although we are now a bigger team, when I joined it was still so small I genuinely felt I was part of the creation of a team and its processes.

If we look at arbitration as a battlefield, what are the three metaphorical weapons any lawyer needs, and why?

I do not look at international arbitration as a battlefield. Being one of the arbitration/litigation warrior class can make you blind to the real wants and needs of your client. I further believe it blinds you to the real strength and weaknesses of your case, creating pitfalls as you overestimate your skill as a warrior.

That being said, if I could only have three metaphorical weapons I would want: 1) a real team; 2) passion; and 3) attention to detail. I have listed this in the order of importance.

First, it is my opinion that, regardless of who you are, you cannot get anywhere without being part of a real team. You will never learn enough to be strong enough on your own. You need a group that complements and supports you. A team will not only allow you to successfully represent your client, it will build you as a professional and also allow you to be successful in achieving a work/life balance.

Second, when it comes to passion, this is what will help you survive. There is no way around the fact that international arbitration requires an extreme commitment from you in terms of hours. You will also operate in high stress situations. Unless you are truly passionate about what you are doing, you will be miserable. To find the unique arguments, to be happy while working, to be successful in general, you must be passionate about international arbitration.

Third, my final weapon is attention to detail. You must become a detail sniper. You can go far without being the smartest or most knowledgeable person if you are diligent with a good attention to detail. Attention to detail is what will win or lose the case for your client. It is never your knowledge of the deep philosophical principles of international arbitration that does so. Attention to detail is the one trait that is more or less consistent across those who makes it in international arbitration today; it is also the consistent trait in who is and is not hired as an associate.

Upon reflection, are there any decisions you made that you feel aspiring arbitration practitioners could learn from?

Of the decisions I have made, the one I believe is worth sharing is my decision to go off the beaten track and not to be afraid to leave what was not right for me. Moving on from international criminal law is the best decision I have made in my career. I am now in a profession I genuinely like and which I can see myself in for the foreseeable future, instead of sticking with something I had worked to achieve for so long but could not have fulfilled me. Sometimes you just have to jump. When it comes to going off the beaten track, I think this can give you unique perspectives and opportunities. When I finished my masters, most of my classmates were looking for internships in the traditional arbitration law firms in Geneva, Paris, and London. I instead went to do an internship at BMAJ Abogados in Chile. This helped me understand a different way of working, gave me insight into Latin America, helped me learn some Spanish, and let me build a global network. I am currently working on many cases with links to Latin America with underlying documentation in Spanish. Had I not gone off the beaten track, I would not have learned the skills that are now essential to my work.

Is there any additional candid advice or insight that you can offer to assist those who are entering the field, deciding whether to enter the field, or already are in the field of International Arbitration?

You need to find what makes you unique or something that you are better at than anyone else. Maybe you already speak a relevant arbitration language; if not, consider learning one. Are you particularly good at oral advocacy? Then you should hone that skill and use any opportunity to perfect it. Are you a good writer? Perfect your writing style. Start reading literature, like Hemingway, which will improve your legal drafting skills.

You will also need to think about your reputation and what you want it to say about you. Everyone has a reputation, whether you want it or not, whether you care about it or not. Given that you have a reputation, you should control it. Arbitration is a small community; your reputation will always play a pivotal part in your career. Be genuine. Remember, your reputation is not only built on whom you mingle with at conferences. It is a sum of how you come across to all the people you encounter, from opposing counsel to your trainees.

More from our authors: Arbitration in Belgium: A Practitioner’s Guide
by Edited by Niuscha Bassiri, Maarten Draye
€ 185


The post Tips from the top: Young ICCA interviews Nora Fredstie appeared first on Kluwer Arbitration Blog.

Institute conducts first course in 'international arbitration' - Gulf Times

Google International ADR News - Sat, 2018-10-20 16:09

Institute conducts first course in 'international arbitration'
Gulf Times
It allowed candidates to learn about the background of international arbitration, become engaged with the process and procedure of international arbitration, and understand international arbitration in the context of other forms of dispute resolution ...

Rescuer Syndrome and how it hinders conflict resolution

Communication and Conflict Blog - Sat, 2018-10-20 15:11
The Rescuer Syndrome - the main obstacle to being able to provide effective conflict resolution support.

Resolving workplace disputes

Communication and Conflict Blog - Sat, 2018-10-20 06:00
This page explores resolution of workplace disputes via the use of the principles and practices described on the website.

Summarising as a Practice in Effective Communication

Communication and Conflict Blog - Sat, 2018-10-20 05:40
This page describes the practice and purpose of summarising in effective interpersonal communication and conflict resolution.

Communication and Conflict - further information about this website.

Communication and Conflict Blog - Sat, 2018-10-20 04:22
Additional information about the Communication and Conflict website and the importance of effective communication skills for conflict resolution in relationships.

Websites relating to Communication and Conflict

Communication and Conflict Blog - Sat, 2018-10-20 04:16
This page gives links to websites that promote a similar approach to communication and conflict resolution to that described on this site.

Newsletter and RSS flyer - articles on conflict resolution

Communication and Conflict Blog - Sat, 2018-10-20 04:08
Subscribe to the Communication and Conflict Newsletter with articles on conflict resolution and effective interpersonal communication

Brussels Court Holds Arbitration Agreement in FIFA Statutes Invalid: Final Call or Half-Time Whistle for CAS Arbitration in Sports Disputes?

Kluwer Arbitration Blog - Sat, 2018-10-20 02:00

Maarten Draye and Benjamin Jesuran

The authors write this contribution strictly in their own name.

Most arbitration laws require parties to identify in their arbitration agreement the “defined legal relationship” for which they wish to submit disputes to arbitration. Nonetheless, this requirement has given rise to little case law in practice. In a judgment of 29 August 2018 (“Judgment”), however, the Brussels Court of Appeal (“Court”) assumed jurisdiction over a football-related dispute despite a clause providing for CAS arbitration in the FIFA Statutes, holding this arbitration clause invalid for failure to identify any defined legal relationship. While the Judgment may give rise to debates in ongoing cases, it is not expected to put CAS arbitration of future football disputes in jeopardy, provided that the shortcoming is remedied through appropriate drafting.

Background

At the heart of the dispute lies FIFA’s prohibition of third-party ownership agreements (“3POs”). Under this practice, private investors acquire rights over football players to later profit from transfer fees. 3POs are controversial given their alleged links with game fixing, corruption and money laundering.

In 2015, RFC Seraing – a third division football club affiliated to the Belgian Football Federation (“URBSFA”) – entered into a 3PO with Maltese company Doyen Sports Investments Limited (“Doyen Sports”). Following an investigation, FIFA fined RFC Seraing and imposed a four-year transfer ban. The decision was confirmed by FIFA’s Appeal Committee. In an arbitral award dated 9 March 2017, a CAS tribunal reduced the transfer ban but confirmed all other sanctions.

RFC Seraing applied to set aside the arbitral award before the Swiss Federal Court, which dismissed the application on 20 February 2018.1)Swiss Federal Court, 20 February 2018, 4A_260/2017 and “A Pyrrhic Victory for FIFA?”. jQuery("#footnote_plugin_tooltip_2990_1").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

In parallel, RFC Seraing and Doyen Sports started proceedings against URBFSA, UEFA and FIFA (“Respondents”) before the Belgian Courts, arguing that FIFA’s prohibition of 3POs is incompatible with EU Law. Respondents challenged the jurisdiction of the Belgian courts in light of the arbitration agreement in FIFA’s Statutes, to which RFC Seraing had adhered through its own statutes.

In an interlocutory decision, the Court invited the Parties to address the validity of an agreement that submits any dispute without restriction to arbitration.

Decision

Belgian law – like the UNCITRAL Model Law and the New York Convention – requires the arbitration agreement to identify a “defined legal relationship”.2)Article 1681 and Article 1682, § 1 of the Belgian Judicial Code (“BJC”), which adopt Articles 7 (Option II) and 8 of the Model Law, which mirrors Article II (3) New York Convention. jQuery("#footnote_plugin_tooltip_2990_2").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

By reference, inter alia, to the ICCA Guide, the Court explained that this requirement seeks to prevent parties from generally referring any and all disputes that may arise between them to arbitration. This requirement finds its ratio in (i) the right of access to justice (Article 6.1 ECHR, and Article 47 Charter of Fundamental Rights of the EU); (ii) party autonomy (notably the necessity to avoid that parties be surprised by the application of the arbitration agreements to disputes not anticipated), and (iii) the concern of preventing the party in a stronger bargaining position from imposing on the other party the jurisdiction of any other court.3)The Court referred to the Advocate-General’s Opinion in Powell Duffryn, C-214/89. jQuery("#footnote_plugin_tooltip_2990_3").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Against this background, the Court proceeded to analyze the arbitration provisions in the FIFA Statutes.4)In particular Articles 66 and 68 of the FIFA 2015 Statutes, which correspond to Articles 57 and 59 of the FIFA 2018 Statutes currently in force. jQuery("#footnote_plugin_tooltip_2990_4").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); The Court considered that these provisions are drafted in very broad terms to generally submit to CAS arbitration all disputes between FIFA and “leagues, members of leagues, clubs, members of clubs, players, officials and other association officials”, without any specification or indication of the legal relationship concerned.

The Court rejected Respondents’ arguments that a limitation of the scope of the arbitration clause ratione materiae is implied by, or could be derived from, external elements. First, neither the nature of FIFA’s statutes or activities, nor the fact that CAS can only be seized for sports-related disputes define a legal relationship. CAS is, moreover, an independent body that could amend its own bylaws. Further, the undertaking in RFC Seraing’s statutes to comply with the “statutes, regulations, directives, and decisions of URBFSA, FIFA, and UEFA” would have represented the source of the duty to arbitrate, not the subject-matter of the arbitration agreement provided in FIFA’s statutes. The court also recalled that the favor arbitrandum principle cannot be relied upon to deviate from a requirement provided by law. Finally, the Court rejected Respondents’ analogy with arbitration clauses in bylaws of companies, which relate only to corporate law disputes between the company and its shareholders.

The Court, therefore, concluded that the FIFA statutes impose CAS arbitration as a general method of dispute resolution for any dispute between the parties, subject only to the exceptions provided for by FIFA. Absent any “defined legal relationship”, these provisions do not constitute a valid arbitration agreement under Belgian law.

Commentary

Despite its widespread existence, the requirement of a “defined legal relationship” rarely gives rise to issues in practice.5)Gary B. Born, International Commercial Arbitration, 2nd edition, Kluwer Law International, 2014, p. 295. jQuery("#footnote_plugin_tooltip_2990_5").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); From this perspective, the Court’s decision to hold FIFA’s arbitration agreement invalid is surprising at first sight. However, upon closer examination, the Judgment raised a valid point. Three questions arise.

Why the Red Card? Far from the typical arbitration agreement, FIFA generally submits to CAS arbitration, without identifying the subject matter of the disputes submitted to arbitration. In its 2015 Statutes, “FIFA recognizes [CAS] to resolve disputes between FIFA, Members, Confederations, Leagues, Clubs, Players, Officials, intermediaries and licensed match agent”.6)Article 66 FIFA 2015 Statutes jQuery("#footnote_plugin_tooltip_2990_6").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Confederations, member associations and leagues are compelled to recognise CAS’s authority and must, in turn, include a provision in their statutes or regulations to the effect that their disputes affecting leagues, clubs, plays, and officials must be settled by arbitration. Finally, these Statutes prohibit recourse to state courts even for provisional measures, unless provided otherwise by FIFA.

The Court’s finding that FIFA’s statutes lack any express reference to a “defined legal relationship” should be endorsed. It is telling that Respondents had to infer the existence of a “defined legal relationship” from elements external to FIFA’s statutes. Furthermore, the Court’s insistence on this criterion was based on widely applicable general principles of due process. It is therefore well possible that the Court’s conclusion will receive following in other jurisdictions.

Why Only in Extra Time? Until the Judgment, the broad wording of the arbitration clause in the FIFA arbitration clause appears to have stayed below the radar. Moreover, the same dispute between RFC Seraing and FIFA had already been adjudicated by a CAS tribunal whose arbitral award was upheld by the Swiss Federal Court. What made the Court’s review different?

In this case, the Court was faced with an arbitration exception raised by Respondents. Under Belgian law, courts in such case have to confirm that the dispute before them is the object of a valid arbitration agreement before declining jurisdiction.7)See M. Draye  & E. Stein, “Article 1682” in M. Draye & N. Bassiri (eds.), Arbitration in Belgium – A practitioner’s guide, Kluwer Law International, 2016, p. 93 at para. 22. jQuery("#footnote_plugin_tooltip_2990_7").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); During this analysis the Court raised the question regarding the validity of the arbitration clause in the FIFA Statutes.

The issue does not necessarily manifest itself in the same manner before an arbitral tribunal or annulment court. When neither party raises an objection to jurisdiction there seems to be little ground for an arbitral tribunal, seized with a specific dispute in which parties voluntarily take part, to raise sua sponte the issue of lack of a defined legal relationship in the FIFA statutes. Furthermore, the lack of validity of the arbitration is generally not a ground that may be raised ex officio by the annulment court if it has not been raised by a party.

In the parallel arbitration, the absence of a “defined legal relationship” was not raised before the CAS tribunal, nor was the lack of a valid arbitration agreement raised as a ground for setting aside before the Swiss Federal Court.

What’s Next? As explained above, the Court only took issue with the general submission to CAS arbitration and rejected the arguments that a defined legal relationship could be implied by external elements. The Court did not rule out the ability for a football club to enter into an arbitration agreement by undertaking in its own statutes to comply with FIFA’s statutes. Nor is there a reason to see an onslaught against CAS’s ability to administer sports disputes, or a desire to deviate from the recent German Federal Court of Justice decision confirming the validity of arbitration agreements imposed to sports players by their federations, 8)See, “Claudia Pechstein’s Challenge to the CAS”, “Invalidity of arbitration agreement when lack of choice to refuse it”, and “Federal Tribunal Rejects Pechstein Petition” jQuery("#footnote_plugin_tooltip_2990_8").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_8", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); as now confirmed by the ECHR.9)See ECHR, Mutu and Pechstein v. Switzerland (nos. 40575/10 and 67474/10) jQuery("#footnote_plugin_tooltip_2990_9").tooltip({ tip: "#footnote_plugin_tooltip_text_2990_9", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

It is submitted that, to comply with the “defined legal relationship” requirement, it is sufficient for FIFA to redraft its arbitration provisions so as to expressly identify the disputes that must be submitted to CAS arbitration in the clause itself.

Conclusion

The Court rightly pointed to the existence of the requirement to identify a “defined legal relationship” in arbitration agreements, as well as to its importance in light of due process rights. These principles are prevalent in most arbitration laws. FIFA’s arbitration provisions can be redrafted to ensure compliance with this requirement. The Court’s decision did therefore not sound the death knell of CAS arbitration as a valid forum to arbitrate football disputes. Nor did it create an earthquake like the Bosman ruling. As such, it may instead well constitute a wake-up call to anyone involved in drafting arbitration clauses in statutes or regulations. By contrast, the decision on the compatibility of FIFA’s prohibition of 3POs with EU Law, which is still pending before the Court, may be more consequential and will surely be highly anticipated.

 

 

References   [ + ]

1. ↑ Swiss Federal Court, 20 February 2018, 4A_260/2017 and “A Pyrrhic Victory for FIFA?”. 2. ↑ Article 1681 and Article 1682, § 1 of the Belgian Judicial Code (“BJC”), which adopt Articles 7 (Option II) and 8 of the Model Law, which mirrors Article II (3) New York Convention. 3. ↑ The Court referred to the Advocate-General’s Opinion in Powell Duffryn, C-214/89. 4. ↑ In particular Articles 66 and 68 of the FIFA 2015 Statutes, which correspond to Articles 57 and 59 of the FIFA 2018 Statutes currently in force. 5. ↑ Gary B. Born, International Commercial Arbitration, 2nd edition, Kluwer Law International, 2014, p. 295. 6. ↑ Article 66 FIFA 2015 Statutes 7. ↑ See M. Draye  & E. Stein, “Article 1682” in M. Draye & N. Bassiri (eds.), Arbitration in Belgium – A practitioner’s guide, Kluwer Law International, 2016, p. 93 at para. 22. 8. ↑ See, “Claudia Pechstein’s Challenge to the CAS”, “Invalidity of arbitration agreement when lack of choice to refuse it”, and “Federal Tribunal Rejects Pechstein Petition” 9. ↑ See ECHR, Mutu and Pechstein v. Switzerland (nos. 40575/10 and 67474/10) 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: Arbitration in Belgium: A Practitioner’s Guide
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Another Wrong Arbitration Decision in New Jersey

Business Conflict Blog - Fri, 2018-10-19 21:19

It’s not often that an excellent court simply misconstrues — or worse ignores — relevant state statutes and superseding federal law.  But the Superior Court Appellate Division of New Jersey seems to have done so.  We assume that it was trying to protect employees claiming age discrimination.  In fact, it accomplished the opposite and poorly served the utility of arbitration law in the State of New Jersey.

Plaintiff Marilyn Flanzman filed a complaint in New Jersey Superior Court alleging that her termination from her job constituted age discrimination, harassment and discriminatory discharge in violation of the New Jersey Law Against Discrimination.  Defendant employer, relying on an arbitration agreement executed by plaintiff, moved to compel arbitration.  Plaintiff resisted, claiming that the arbitration agreement was unenforceable as a matter of law because it do not set forth “the process for generally selecting an arbitration forum.”  The appellate court noted that plaintiff argued “that without that information communicated somehow in the agreement — whether it be by designating AAA, JAMS, or some other mechanism intended to replace her right to a jury trial — there exists no mutual assent.”

The Superior Court found for the employer.  The Appellate Division reversed, reasoning:

Selecting an arbitral institution informs the parties, at a minimum, about that institution’s arbitration rules and procedures.  Without knowing this basic information, parties to an arbitration agreement will be unfamiliar with the rights that replaced judicial adjudication.  That is, the parties will not reach a “meeting of the minds.”

Thus, in New Jersey, the parties to arbitration agreements (but no other types of agreements) must reflect, in drafting the agreement itself, “a clear mutual understanding of the ramifications” of agreement.  The agreement must identify “what rights replaced their rights to judicial adjudication.”  The court did not require that AAA be engaged, and held that simply setting forth an agreed method for appointing a panel of arbitrators might satisfy this requirement.  The point is that “the parties must mutually understand what rights replace those that they gave up.”

The court rendered this opinion without hindrance from — and indeed only a single citation to — the New Jersey Arbitration Act.  Former Presiding Judge of the Appellate Division William Dreier notes in his volume, New Jersey Arbitration Handbook,  that N.J.S.A. 2A:23B-6 makes enforceable any agreement “to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement” without that agreement’s reciting its consequences.  N.J.S.A.  2A:23B-4(b) provides that such agreements may not, with respect to subsequent controversies, purport to restrict such rights as notice of the initiation of arbitration or representation by a lawyer, but nothing in the statute requires that arbitration agreements must include consent of who should act as arbitrator, or what rules will be used.  Indeed, N.J.S.A. 2A:23B-11(a) provides that “if the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method shall be followed, … [and] if the parties have not agreed on a method.. the court shall appoint the arbitrator,” thereby contemplating that an enforceable arbitration agreement may not include a provision for naming an arbitrator.  As for the process by which the proceeding shall be conducted, N.J.S.A. 2A:23B-15(a) provides that “an arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding.”  It this contemplates that the method of the arbitration shall be determined by the arbitrator in the course of the proceeding, not by the parties in the course of the arbitration agreement.

By rendering invalid arbitration agreements that do not contain “the ramifications” of the selection of arbitration, the Appellate Division not only amended the New Jersey Arbitration Act by judicial fiat.  It also required that arbitration contracts contain provisions unique to them and not required by any other contracts — thus treating arbitration contracts differently from others, in violation not only of N.J.S.A. 2A:23B-6, but the Federal Arbitration Act and all judicial decisions interpreting it, which constrain state courts through the Supremacy Clause.  Could a party to any other type of contract in New Jersey contest its validity on the ground that the party did not understand the consequences of certain of its provisions?

How this came about, I am at a loss to speculate.  But this blog has previously noted instances where New Jersey courts have taken upon themselves what they seem to believe is a responsibility to protect consumers and employees from the perceived unfairness of agreements to arbitrate disputes.  The validity of such agreements, however regrettable they may be as a matter of policy, is well established — in the United States, if not in New Jersey.  In order to be enforceable in New Jersey, arbitration agreements now must feature certain provisions that arbitration agreements in neighboring states need not.   Were plaintiff Flanzman to have lived in neighboring Pennsylvania or New York, would her agreement to arbitrate have been rendered invalid on these grounds?

Powerful Words on Inclusion and the Impact to Follow - Mediate.com

Google International ADR News - Fri, 2018-10-19 21:04

Mediate.com

Powerful Words on Inclusion and the Impact to Follow
Mediate.com
In a recent article, Kim Taylor, senior vice president and chief legal and operating officer at JAMS, discusses the importance of inclusion and diversity as it relates to alternative dispute resolution (ADR) and specifically arbitration. ... recognizes ...

What is Mediation?

Communication and Conflict Blog - Fri, 2018-10-19 18:08
This page looks at the approach to mediation taken by the website author and by his colleagues CAOS Conflict Management where he works.

Mending a Divided America With Alternative Dispute Resolution - Newsmax

Google International ADR News - Fri, 2018-10-19 09:25

Newsmax

Mending a Divided America With Alternative Dispute Resolution
Newsmax
In the wake of the turmoil surrounding the Kavanaugh confirmation, I was asked, as a lawyer practicing alternative dispute resolution, to take a step back from the noise and maneuvering and see if techniques used in finding solutions to civil disputes ...

and more »

Guide to Doing Business in Canada: Dispute resolution & litigation - Lexology

Google International ADR News - Fri, 2018-10-19 07:07

Guide to Doing Business in Canada: Dispute resolution & litigation
Lexology
View full guide ». Dispute resolution & litigation. While it is similar to the American regime, the Canadian approach to dispute resolution is informed by the unique nature of the Canadian court system and legislative regime. Features such as the multi ...

Wake Up Call: As Saudi Arabia Scandal Grows, Gibson Dunn Cuts Ties - Bloomberg Big Law Business

Google International ADR News - Fri, 2018-10-19 05:35

Bloomberg Big Law Business

Wake Up Call: As Saudi Arabia Scandal Grows, Gibson Dunn Cuts Ties
Bloomberg Big Law Business
International Monetary Fund Managing Director Christine Lagarde, a former Baker McKenzie global chair and French finance minister, said that when she first started out as a lawyer, some clients thought she was there to serve the coffee. In this video ...

Bullying in the workplace - How to respond effectively

Communication and Conflict Blog - Fri, 2018-10-19 02:05
Why is bullying in the workplace not dealt with effectively? Here's a way of responding that improves workplace relationships and resolves the issue of bullying.

Confidentiality - importance for effective communication and conflict resolution

Communication and Conflict Blog - Fri, 2018-10-19 02:03
Confidentiality is both an Underlying Philosophy of Mediation and a Principle of Effective Communication and is crucial in supporting effective conflict resolution.

Brazil Warms To The Global Procurement Market Further With New Chile Treaty, But Still No Arbitration For Investors

Kluwer Arbitration Blog - Fri, 2018-10-19 01:22

Natalie Yarrow and Pedro Henrique Martins

Herbert Smith Freehills

Brazil has been notoriously reluctant to enter into treaties with other States that provide for the protection of investors and investments, viewing them as detrimental to the host State and its national investors. Brazil has no bilateral investment treaties in force, a limited number of its own treaties, named Cooperation and Facilitation Investment Agreements (CFIAs), and is not a signatory to the International Centre for Settlement of Investment Disputes Convention (ICSID Convention). To date, however, this approach has not limited Brazil’s attractiveness to foreign investment, with Brazil being a leading recipient of foreign direct investment.

Yet over the last few years, Brazil’s attitude towards agreements aimed at promoting investment has softened as its own national industries have eyed up opportunities in foreign markets. We have recently seen Brazil enter into a suite of public procurement agreements (PPAs). These PPAs aim to ensure open, fair and transparent conditions of competition in the government procurement markets. Chile is the latest State to enter into a PPA with Brazil, which provides rules for the mutual increase in the participation of Chilean and Brazilian companies in public procurement bids by establishing bilateral equal treatment and internationalisation of procedures.

Brazil’s PPAs represent an interesting approach to tapping into the global public procurement market, a move which has the potential of unlocking billions in revenue, while remaining outside the traditional model of investment agreements. While they include some investor-friendly provisions, they nevertheless limit the direct recourse of investors against the State. The Chilean PPA is silent on dispute resolution, and the Chilean CFIA, whose definition of investment would likely encompass public procurement contracts, reserves arbitration for States only. As such, investors with qualifying contracts under the Chilean PPA will be confined to pursuing any dispute through the national courts or by escalating the dispute to the State level.

Background

Earlier this year, Brazil executed the Acordo de Contratação Pública entre a República Federativa do Brasil e a República do Chile, the PPA with Chile, which aims to expand bilateral trade between the two countries with regard to public procurement processes. This follows the execution of the same type of agreement with the Mercosur (comprising Brazil, Uruguay, Argentina and Paraguay) in December 2017, and with Peru in April 2016, the latter being included within a broader agreement comprising provisions related to investments and services. All three PPAs will enter into force in January 2019. Additionally, the Brazilian government has reported that it is currently negotiating further agreements pertaining to public procurement provisions with Mexico, the European Union and the European Free Trade Association.

In addition to this, Brazil has been an observing member of the Government Procurement Agreement (GPA) since August 2017. The GPA is a plurilateral agreement within the framework of the World Trade Organization whose goal is to open public procurement markets mutually among its State parties.

These events form part of a move of the Brazilian government to enter into the global public procurement market, which is estimated to generate USD 3.4 trillion per year. In the past decades, Brazil has been reluctant to open its internal market for foreign providers of goods and services out of fears that granting the equivalent treatment to foreign companies as that given to Brazilian ones could prevent or hinder its discretion to foster its national industries. This perception seems to have shifted, however, due to the bilateral nature of PPAs allowing Brazilian companies to expand their portfolio abroad. According to the National Confederation of Industry of Brazil, Argentina alone offers a USD 81.5bn market to Brazilian investors, followed by Peru (USD 12bn) and Chile (USD 11bn). That, together with the other countries of the Mercosur, leaves a USB 109bn potential market waiting to be accessed. Furthermore, if the remaining agreements currently under negotiation are signed, this could pave the way for an estimated USD 2trn in public procurements.

Key protections and features of the PPAs

National treatment

As a means to achieving this greater participation in the global public procurement market, the PPAs provide a legal framework that aims to place international companies on a level playing field with Brazilian companies with regard to their competitiveness as well as to facilitate their participation in public bids. The PPAs therefore include specific provisions with regard to national treatment and non-discrimination (Article V(1)(2) of the Chilean PPA; Article 4.4(2) of the Peruvian PPA and Article 6 of the Mercosur PPA), stating that “immediate and unconditional” treatment shall be granted to goods/services providers of the parties in relation to any contracts covered by the relevant PPA.

Non-preferential rules of origin

In the past, many have viewed preference margins as the greatest obstacle to foreign investors seeking to do business with the Brazilian government. In an attempt to tackle this, a specific provision has been included in the PPAs to establish that the parties shall apply the non-preferential rules of origin provided for in Article 1.2 of the Agreement on Rules of Origin of the WTO to contracts covered by the PPAs (Article 12 of the Chilean PPA; Article 7 of the Peruvian PPA and Article 7 of the Mercosur PPA). The WTO Agreement on Rules of Origin determines the country of origin of a product for purposes of international trade. Non-preferential rules of origin are those which apply in the absence of any trade preference — that is, when trade is conducted on a most-favoured nation basis. In Brazil, the general law applicable to public procurement processes is Law n. 8,666/1993. Article 3 allows the Brazilian government to exercise discretion over how it wishes to develop its national industry, providing, for example, the possibility of establishing preference margins that allow national products and/or services to be up to 25% more expensive than foreign products and/or services. The PPAs seem to derogate from the application of the national rule and grant the possibility of discussing the matter under internationally agreed rules.

Dispute Resolution

In contrast to the Mercosur PPA, the Chilean PPA does not contain any mechanism for dispute resolution. As the Chilean PPA deals with a sub-set of investment, namely public contracts, it may be read in the wider context of the Chilean CFIA, signed in November 2015. The definition of “investment” in the Chilean CFIA is considerably broad, including “contractual rights, including turnkey, administration and other similar agreements” (Article 1.4(d)). Public contracts covered by the PPAs could therefore potentially fall within the Chilean CFIA’s scope.

The arbitration agreement provided for in the Chilean CFIA (and also the Peruvian CFIA) is ad hoc (Article 25 and Annex 1, Chilean CFIA). The arbitration agreement only applies to the State parties to the Chilean CFIA, i.e. Chile and Brazil, and not to either of their investors. In addition, the ad hoc provision can only be triggered after extensive attempts through various means of solving the dispute amicably (Article 24, Chilean CFIA). Such amicable mechanisms include an ombudsman for each Government to address the foreign investor’s complaints, and also a Joint Committee, which will issue a recommendation for the disputing parties. If none of these methods succeed, or if the parties dispute the Joint Committee’s recommendations, the dispute can then be submitted to arbitration.

What this means is that, if a dispute arises under the Chilean PPA, only the State can submit the claim to arbitration. In addition, the Chilean CFIA does not contain an umbrella clause, in contrast to some BITs, meaning that an investor does not have the possibility to elevate a potential breach of contract with a State to a breach of an international treaty. An investor therefore has no recourse to arbitration and must pursue its claim through the national courts, unless the investor’s home State wishes to bring the claim itself. Otherwise, arbitration only remains an option for foreign investors if the contract entered into with the Brazilian public authority includes an arbitration clause and the dispute concerns patrimonial rights, such as rights to assets of a commercial nature.

Comment

The approach to dispute resolution adopted in the Chilean PPA and Chilean CFIA is unsurprising given Brazil’s distrust of investor-state arbitration. In practice, the lack of recourse to investor-state arbitration does not seem to have dampened foreign investors’ interest in the country so far. Brazil has been a regular receiver of foreign direct investment in the past decade, including foreign companies becoming shareholders of SPVs for infrastructure projects. It can be inferred from the lack of such mechanisms in the Chilean PPA and Chilean CFIA that Brazil is not concerned that the lack of investor-state arbitration will have any negative consequences for future investment.

However, there is a softening in Brazil’s attitude and the execution of the PPAs may also suggest that Brazil is reviewing its past position with regard to protectionist measures. Brazil introduced the PPA/CFIA model to offer a greater balance between investor protection and the host State’s development agenda. Some might argue that, particularly with regard to concession agreements, whose long-term duration and high value usually require a greater level of certainty when it comes to dispute-solving mechanisms (compared to a single-time provision of goods), the PPAs could have provided a good opportunity for Brazil to adopt an approach more aligned with international practice with regard to investor-state disputes with a view to attracting investments to a sector that has high demand for qualified contractors.

It is unlikely that we will see a change in stance on investor-state arbitration any time soon. However, as Brazil’s domestic industries expand and the outflow of investment increases, it may be interesting to see if that stance softens further.

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The post Brazil Warms To The Global Procurement Market Further With New Chile Treaty, But Still No Arbitration For Investors appeared first on Kluwer Arbitration Blog.

A Data-Driven Exploration of Arbitration as a Settlement Tool: How Can We Express Confidence in Small Data Samples?

Kluwer Arbitration Blog - Thu, 2018-10-18 23:40

Brian Canada, Debi Slate and Bill Slate

Recently, CRC Press published Data-Driven Law: Data Analytics and the New Legal Services by Edward J. Walters. The volume’s contributed chapters cover a wide range of topics at various levels of mathematical rigor, but they all underscore the importance of how data science can greatly improve the quality and efficiency of the legal process from document discovery to predicting potential judgments. While Data-Driven Law does not specifically discuss arbitration or other alternative dispute resolution mechanisms in which Dispute Resolution Data (DRD) specializes, we nonetheless believe that the book’s publication is a strong leading indicator of the growing role that data analytics will play throughout the legal profession. Certainly, we recognize that many strategic decisions in this profession are informed by the invaluable wisdom that practitioners have accumulated over a career’s worth of experience. What we aim to provide is a means to help augment that wisdom with knowledge derived from the analysis of data that have been collected thoughtfully, thoroughly, and systematically. In this way, practitioners need not rely exclusively on hunches or educated guesses to guide their decision-making processes. With the power of data, they can now provide their clients with more definitive and fact-based assessments of how likely a case will result in a particular outcome, given a set of defined input parameters.

 

To that end, we presented the first in a series of blog posts discussing the results of data-driven analyses which support the notion that the most frequently observed outcome of international arbitration cases is settlement or withdrawal. In most cases, settlement/withdrawal is reached relatively quickly, often less than a year following the claim date, and also prior to any counter-claim, preliminary hearing, or hearing on the case’s merits. Our results were derived from an aggregate view of all available international commercial arbitration case data in the DRD repository, which presently consists of nearly 4,000 cases dating back to 2005.

 

In our September 2018 follow-up blog post, we demonstrated that because this data sample was relatively large, we can be quite confident that our statistical estimate of cases ending in settlement/withdrawal (currently 54%) has a low margin of error (hereafter abbreviated “MOE”). That is, our estimate (specifically, 54% ± 2%, with 95% confidence) is likely to be representative of the entire “population” of all international arbitration cases, when viewed as an aggregate across all case types and case regions. We invite the interested reader to review our September 2018 blog post, which includes a primer on how to compute the MOE while explaining, in accessible language, what the MOE actually means from a statistical standpoint.

 

However, just as having a large sample size yields a narrow MOE, a smaller sample size typically results in a wider MOE, given the same 95% level of confidence. And while the aggregate estimate of 54% (±2%) of cases ending in settlement/withdrawal speaks to the potential power of arbitration as a settlement tool in a broad sense, parties are likely to be more interested in estimates that pertain to a specific case type, or to a specific geographic region in which the arbitration took place, or perhaps to other, even narrower data segments extracted from the spectrum of international commercial arbitration. More specific criteria will, necessarily, reduce the size of the data sample to be analyzed. Here, we use selected results from analyzing the DRD database to demonstrate the effect of sample size on MOE, and we discuss how stakeholders may interpret such results with varying degrees of confidence.

 

For example, let us consider how the proportion of cases resulting in settlement/withdrawal varies by case type. In the DRD repository, the four largest sectors (by number of cases entered in the database) presently include commercial contracts (817 cases), hospitality & travel (456), construction (369), and wholesale & retail trade (314). From Figure 1, we can see that in all but one of these case types, settlement/withdrawal is the most frequent outcome, but in addition, the MOE varies inversely with the number of cases.

Figure 1: Percentages of international commercial arbitration cases (since 2005) resulting in settlement/withdrawal for each of four major case types (with a similar result for all case types shown for comparison). Margin of error (indicated by error bars) is computed at the 95% confidence level. To simplify the MOE computation, other case outcomes are grouped into a single “not settled/withdrawn” category.

 

For the four major case types shown in Figure 1, the MOE is about ±5%, which is arguably an acceptable degree of uncertainty for parties exploring arbitration as a dispute resolution mechanism. Such a relatively narrow MOE mainly results from each of these case types having a relatively large sample size (about 300 or more). In contrast, Figure 2 shows the arbitration case outcomes (and associated margins of error) for four selected case types that, at least presently, have smaller sample sizes. For example, there are currently 39 cases in the agriculture sector in the DRD database, approximately half of which resulted in settlement/withdrawal. The associated MOE of ±16% means that the actual percentage of all international commercial arbitration cases in the agriculture sector reaching settlement/withdrawal ranges between 33% and 65%, based on a 95% level of confidence.

 

Such a wide range may still guide the decision-making processes of the stakeholders exploring arbitration as a settlement tool. For example, in the mining & raw materials sector, the MOE is relatively high at ±11%, but the likely maximum proportion of cases reaching settlement/withdrawal is no higher than 50%. This suggests that, at least for this case type, one can be reasonably confident that the chances of reaching settlement prior to a hearing (or, for that matter, reaching settlement at any point in the arbitration process) is not insignificant, but it is still relatively low.

Figure 2: Percentages of international commercial arbitration cases (since 2005) resulting in settlement/withdrawal for four selected case types currently represented by fewer than 300 cases in the DRD database.

 

The fact that the degree of uncertainty of the case outcome is larger for reduced sample sizes does not imply the data are of poor quality; rather, the uncertainty is a function of the quantity of data. Consequently, in an effort to provide DRD’s customers with helpful guidance as to whether the sample size for a given scenario is large enough so that uncertainty is relatively minimal, DRD is introducing a “signal strength” metric intended to provide its users with a simple visual indicator of the confidence that a given DRD data sample is likely to be representative of the “population” of all cases associated with the category of data to which the sample corresponds, whether or not those cases are recorded in the DRD database.

 

Aesthetically, the signal strength indicator resembles the familiar “signal bars” that are a ubiquitous feature of the modern mobile phone’s user interface. Functionally speaking, the number of bars is based on a proprietary computation involving such inputs as sample size, the margin of error associated with the reported statistic, and the level of confidence on which the MOE is based. In short: the greater the number of bars, the greater the degree of confidence that the reported statistic lies within an acceptably low MOE (at most ±5%). Figure 3 illustrates several examples of the DRD “signal strength” as determined for statistical results selected from those presented in Figures 1 and 2.

 

Figure 3: Selected results annotated with DRD’s new “Signal Strength” metric: an “at-a-glance” indicator of the level of confidence that the associated statistic represents all cases meeting the same criteria.

 

We at DRD acknowledge the value of practitioner experience. We do not claim that our results should replace the wisdom of lawyers and other legal professionals who are keenly aware of the myriad possibilities of how cases play out in practice. Rather, we believe that our data-driven offerings can enhance “the human factor” with additional, largely quantitative knowledge that can inform the decision-making process, particularly within the alternative dispute resolution spectrum. In our next blog post, we will share further examples of results derived from a continually finer-grained analysis of DRD’s dataset. For example, we will present results demonstrating how the likely outcome of an international commercial arbitration case changes when settlement is not reached prior to a hearing on the merits. We will also report on how the magnitude of the claim amount can affect the case’s chances of yielding an award that meets or exceeds some threshold percentage of the original claim amount. These examples, combined with those presented in our prior blog posts, merely scratch the surface of what a comprehensive dataset like ours can offer, and we look forward to enabling the alternative dispute resolution community to learn the analytical tools needed to extract valuable insights that can potentially guide future strategic decisions.

 

Dispute Resolution Data (DRD) More from our authors: Arbitration in Belgium: A Practitioner’s Guide
by Edited by Niuscha Bassiri, Maarten Draye
€ 185


The post A Data-Driven Exploration of Arbitration as a Settlement Tool: How Can We Express Confidence in Small Data Samples? appeared first on Kluwer Arbitration Blog.

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