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Ten TED Talks You Might Enjoy

ADR Prof Blog - Sat, 2018-02-24 10:15
On the Kluwer Mediation Blog, Greg Bond wrote a nice post, TED Talks I Have Enjoyed – And that Resonate with the Mediator in Me.  He provides brief descriptions of ten talks that he has “found inspiring and that relate to mediation, in the broadest sense of the word.”  One of them is Andrea’s talk,  Why Women Don’t … Continue reading Ten TED Talks You Might Enjoy →

Grande Lum’s Article Criticizing Proposal to Effectively Eliminate the Community Relations Service

ADR Prof Blog - Fri, 2018-02-23 16:26
Grande Lum, former director of the Community Relations Service (CRS), just published an important article in The Hill newspaper urging Congress to maintain independent funding for the agency. “Historically, CRS has played a significant role in facilitating dialogue, developing constructive relationships, and reducing the possibility of violence.  Its mediators and conciliators played a key role … Continue reading Grande Lum’s Article Criticizing Proposal to Effectively Eliminate the Community Relations Service →

Franchise Regulation: The Legal Framework of Saudi Arabia and Analysis of the Draft Franchise Law - Lexology

Google International ADR News - Fri, 2018-02-23 11:12

Franchise Regulation: The Legal Framework of Saudi Arabia and Analysis of the Draft Franchise Law
Lexology
It is not uncommon that major international franchisors with highly valuable brands and franchise concepts will have standard franchise agreements exceeding several hundred pages including appendices, exhibits, and the like with carefully crafted ...

Reger Rizzo & Darnall Adds New Partner to Its Wilmington Office - Law.com

Google International ADR News - Fri, 2018-02-23 09:04

Law.com

Reger Rizzo & Darnall Adds New Partner to Its Wilmington Office
Law.com
Sunshine focuses his practice in the areas of general liability, construction defect, trucking and transportation litigation and alternative dispute resolution. Sunshine brings with him more than 25 years of experience representing clients in a wide ...

International Arbitration and Artificial Intelligence: Time to Tango?

Kluwer Arbitration Blog - Fri, 2018-02-23 01:00

Lucas Bento

Besides the inverted initialism, what does international arbitration (“IA”) and artificial intelligence (“AI”) have in common? Sure, both IA and AI are leading alternatives to the status quo: IA to traditional dispute resolution, AI to traditional methods of production. The former promotes freedom from the judiciary, the latter freedom from cognitive limitations. Beyond that, comparisons would appear, well, artificial.

Yet closer analysis reveals synergistic opportunities for both AI and IA, at a time when professions and their well-guarded domains are being threatened by disruptive technological forces. The use and impact of AI on the legal profession is slowly becoming a hot topic in legal, technology, and academic circles. Conferences in the international arbitration sphere have begun to address how the AI-IA alliance could play out in practice. Could the future of IA lie in AI? In this short post, I sketch possible ways in which AI-infused tools could help the international arbitration community provide greater value to stakeholders.

Enhanced Legal Representation

AI can augment human cognitive abilities and automate time-consuming labor. A number of AI-powered products and services already exist to help lawyers parse through submissions, identify better legal authorities, review documents and agreements (e.g. predictive coding), estimate costs, and predict outcomes. A number of start-ups are focusing on disrupting the legal industry, with some already offering case management and forecasting services to the international arbitration community.

Looking to the future, AI tools could play a significant role throughout the entire arbitration process. For example, it could recommend drafting suggestions for arbitration clauses, helping clients and lawyers identify blind spots and bulletproof their interests. Parties could agree to use AI for some aspects of the arbitration itself e.g. discovery, to lower costs. AI-infused products and services could help lawyers also better manage cases by, for example, diagnosing inefficiencies and automating management tasks. Clients could also pre-screen a legal team’s fit for a particular case (e.g. success rate, extent of prior experience, peer-reviewed evaluations), and obtain a second opinion on their legal team’s analysis. The potential for disruption is immense. While the technology underlying AI is still experiencing teething issues, its capacity to enhance the quality of legal services while lowering costs and inefficiencies cannot be ignored. International arbitration lawyers should seriously consider adding AI tools in their offerings to clients.

Enhanced Adjudication Services

AI could also help with the appointment of arbitrators, the preparation of the award, and the simulation of judicial review. Case management could be automated, or significantly streamlined with the aid of software, giving arbitrators more time to do what they do best: arbitrate. Synopses of longer awards (particularly of investor-state arbitrations) could be automatically generated to help readers navigate through decisions. Tribunal secretaries could be replaced by AI decision support systems. And perhaps one day an AI-powered “arbitrator” (or “AIA”, artificially intelligent arbitrator) could preside over a dispute. Ultimately, it would be up to the parties to appoint such “machine arbitrators”. As with any disruptive innovation, trust would be the overriding consideration (can I trust the AIA to make a fair and reasoned decision?). If the parties trust the AIA, then who is to stop them from using it, particularly in arbitration where freedom of choice is paramount?

Additional Institutional Services

Arbitral institutions could also offer additional services powered by artificial intelligence. As noted above, in institutional arbitrations, case management could be automated by software. AI could also be used to predict costs, duration, and, perhaps more ambitiously, the merits of an arbitration. In an effort to promote a speedy resolution of the dispute, arbitral institutions could, at the request of the parties, propose settlement ranges based on arbitrations of similar size and complexity. This could nudge the parties toward settlement.

These innovations will ultimately depend on the parties’ willingness to allow arbitral institutions to use their data to inform future predictions. A simple revision to the institution’s arbitration rules could do the trick. Confidentiality would be preserved as the parties’ data would be merely used as training data (size of arbitration, number of parties, duration, type of dispute etc.) and anonymized for algorithms to generate desired outputs (e.g. settlement ranges based on prior data points).

Parties may also benefit from AI-powered recommendations on how to resolve their dispute in more subtle ways, such as whether to employ an Online Dispute Resolution service to save costs.

And, who knows, to correct the diversity-deficit in arbitral appointments, a diversity algorithm could be employed to recommend arbitrators from a broader pool of candidates.

Better Insights For Scholars and Third-Party Funders

AI could also assist academics and third-party funders. Scholars would be able to benefit from more sophisticated data about cases and general trends in the law. Third-party funders would also be able to draw deeper insights to help decide which cases to fund.

Potential For Self-Regulation

If we are to think big, could AI and blockchain technology ultimately help parties resolve disputes themselves by using self-contained tools without the need for adjudicatory intermediaries?

Time To Sober Up?

While AI has the potential to transform international arbitration for the better, its use does not come without risks: bias, hacking, and the amplification of human mistakes. To guard against some these risks, AI decisions must be explainable and cannot operate as a “black box”. This is particularly important in the dispute resolution world where parties expect decisions to be reasoned.

The parties may also limit the use of AI technology in any aspect of their dispute. But if the business and legal case for AI proves to deliver a better and quicker service for less, then it will only be a matter of time until parties opt for AI-assisted dispute resolution (“AI-ADR”).

We now know that human beings do not always make rational decisions. But human irrationality can be predicted. Richard Thaler, winner of the 2017 Noble prize in economics, noted as much in his 2008 book Nudge (co-authored with Cass Sunstein), where he argued that if irrationality can be predicted, human decisions can be nudged to maximize better outcomes. AI should be welcomed by the arbitration community as a tool to improve efficiencies, reduce costs, and reach fairer—and more transparent—decisions.


Lucas Bento FCIArb is Chair of the AI & International Law Subcommittee at the New York City Bar Association. He is currently writing a book on AI and the Law (forthcoming 2019). The views expressed in this post are the author’s personal views, and do not reflect the opinions of Quinn Emanuel or of the New York City Bar Association.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post International Arbitration and Artificial Intelligence: Time to Tango? appeared first on Kluwer Arbitration Blog.

Culinary Negotiation

ADR Prof Blog - Thu, 2018-02-22 20:12
A recent episode of the Modern Love podcast told the story of a man struggling to deal with conflicting desires of his mother and wife to cook him delicious meals.  While having too much good food may not seem problematic, negotiating serially with one’s wife and mother sure can be.  This account reveals subtle ways … Continue reading Culinary Negotiation →

Can A Party Challenge The Application Of The IBA Guidelines On Conflict of Interest?

Kluwer Arbitration Blog - Thu, 2018-02-22 12:41

Anushka Mittal

The IBA Guidelines on Conflict of Interest in International Arbitration (hereafter, Guidelines) have gained widespread legitimacy across jurisdictions and types of arbitrations. The Guidelines lay down General Standards (Part I) and provide Practical Application List (Part II). Its soft law nature is an example of codification by compilation (Part I) and innovation (Part II). The Guidelines clarify their aim and intent in the Introduction i.e. they do not aim to override any applicable national law or arbitral rules chosen by the parties and are not legal provisions.  Generally, they perform a gap-filling function.

How To Use The IBA Guidelines?

There are various ways to introduce the Guidelines. A tribunal may use it on its own by the exercise of its inherent power. Alternatively, it may be contractually agreed upon by the exercise of party autonomy by parties. It may also be used by one party, without any opposition by another during the course of the arbitration, leading to an ex-post agreement on the application of the Guidelines.

However, there may be cases where a party rejects the application or challenges the application of the Guidelines. In such cases, on what basis does the tribunal accept or reject its application? Most tribunals answer that the Guidelines are not binding but provide international best practice. Yet the jurisprudence of the law under Guidelines has been shaped in a distinctive manner. For example, in ICS v. Argentine Republic, multiplicity of Orange List circumstances led to disqualification of an arbitrator while in EDF International v. Argentine Republic, a financial interest of the arbitrator in a related party led to the laying down of the de minimis principle without disqualification of the challenged arbitrator. Apart from such differences in substantial application, there is still lack of clarity on the process of its application.

Since the Guidelines do not override any applicable law, should they be introduced by the tribunal using its inherent power or by the parties? If by either, can it be susceptible to challenge? On what basis must the Tribunal decide the challenge? Does the application of Guidelines undercut the principle of party autonomy? In view of its widespread acceptance, the Guidelines are perceived to be slowly transforming into lex mercatoria and soft law. However, the contours of the application of soft law also cannot satisfactorily answer these questions. Any attempt to understand the Guidelines in the framework of soft law assumes that all parties agree to its force and the underlying principles. The present enquiry seeks to take a step back and envisage a situation where its application is not beneficial to a party and it challenges its application. An academic discussion and the success of the Guidelines aside, an enquiry on the possibility of a valid challenge to the Guidelines would resolve future instances where newer instruments such as the IBA Guidelines on Party Representation in International Arbitration may be challenged.

It is pertinent to note that the Working Group expressly provided against the inclusion of a Model Clause to apply the Guidelines. The intent was to ensure that the lack of such a clause would not suggest the disagreement to apply the Guidelines. In this context, what is the difference if certain parties agree to apply it while others do not? For example, in Perenco Ecuador Limited v. the Republic of Ecuador (Decision on Challenge), the Permanent Court of Arbitration highlighted that the parties agreed to apply the IBA Guidelines to decide the challenge. The applicable law was the ICSID Convention. The agreement on the use of IBA Guidelines allowed the parties to invoke its standards for disclosure and disqualification (justifiable doubts) and not invoke the ICSID standard of ‘manifest bias’. This agreement seems to have converted soft law into hard law.

Party Autonomy v. Inherent Powers

There is a tug of war between the doctrines of party autonomy and inherent power of a tribunal to apply the Guidelines. If one party does not agree to its application, then a tribunal can exercise its inherent powers to maintain ‘integrity of the tribunal’ and ‘equality between the parties’. However, if both parties reject the application of the Guidelines, in situations of cross-challenges of arbitrators or where both parties challenge the opposite party’s arbitrator, can the tribunal still introduce and depend upon IBA Guidelines?

This enquiry is relevant due to inconsistent practice of the use of the Guidelines where certain parties expressly agree to it while in other cases where courts criticize the Guidelines, rejecting their application yet basing the decision on its parameters! The resolution of the enquiry can also enable one to understand if a party can be obliged to disclose third party funding under General Standard 7, where most arbitration rules have not dealt with the issue, as well as other obligations such as the duty of the arbitrator and the party to investigate conflicts.

There would be strength in a party’s opposition to the application of IBA Guidelines if an award is subsequently challenged on the basis of the tribunal’s sustained use of the IBA Guidelines. The grounds for challenge of an arbitral award under Article V (1) (d) of the New York Convention includes award rendered when ‘arbitral procedure was not in accordance with the agreement of the parties’. Since an applicable law usually contains grounds for challenge of an arbitrator which the Guidelines seek to supplement, the ground may be raised validly. A possible challenge would also lay down the clear juxtaposition of soft law against hard law. Setting aside an award due to usage of the Guidelines, despite a party’s objection may amplify the status of such soft law to hard law. Yet, does the usage of soft law affect party autonomy in any way? Can it lead to an outcome that it sought to vanquish in the first place; namely inequality of arms?

A Possible Way Forward

In short, certain clarity is required in the process of incorporation of the Guidelines in an arbitration. This is possible either by parties incorporating it or by tribunals determining what General Standards can be incorporated without any expression by the parties. For example, can the duty to disclose third party funding be implied from the Guidelines if a tribunal uses Part II to determine conflicts? At the same time, does the explicitly non-binding nature of the IBA Guidelines dispense the need of an agreement between the parties?

To determine applicability, if say, a distinction was made between the General Standards and Practical Application List, for guidance, then the actual benefit of the IBA Guidelines in terms of an authoritative resolution of third party funding disclosure, advance waivers, a party’s responsibility to disclose etc. may be lost. On the other hand, General Standards 2 and 3, which provide for conflict of interest and disclosures do not provide any supplemental guidance vis-à-vis the applicable law.

Since the Guidelines seek to take a balanced and objective approach, another solution can be to require a party to give reasons to its opposition or seek a reasoned opposition. The onus must rest on the party opposing it. However, this amounts to IBA Guidelines being applicable by default whenever an arbitrator is challenged. Practices and usage must evolve to indicate what direction such soft law must take. The question remains whether such soft law must carve out a niche for itself or would the basic principles determine its space in the field of arbitration.

Thus, there is a need for jurisprudential content and clarity on the nature of IBA Guidelines and the tools of interpretation that may be used to interpret and apply them; ‘with robust common sense and without unduly formalistic application’.

 

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post Can A Party Challenge The Application Of The IBA Guidelines On Conflict of Interest? appeared first on Kluwer Arbitration Blog.

30% Discount on ABA Books — Thru End of February

ADR Prof Blog - Thu, 2018-02-22 10:32
The ABA is offering a 30% discount on its 2017 books.  The discount is available only through the end of the month, so you need to act soon to take advantage of this offer. The Section of Dispute Resolution published the following books that qualify for this discount: ● Beyond Smart:  Lawyering with Emotional Intelligence … Continue reading 30% Discount on ABA Books — Thru End of February →

The Liberal Government Plans to Change Canada's Environmental ... - Lexology

Google International ADR News - Thu, 2018-02-22 09:53

The Liberal Government Plans to Change Canada's Environmental ...
Lexology
On February 8, 2018, Catherine McKenna, Minister of Environment and Climate Change tabled Bill C-69 (the "Bill"), An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make ...

and more »

Libya's slave trade - North Africa Journal

Google International ADR News - Thu, 2018-02-22 07:20

North Africa Journal

Libya's slave trade
North Africa Journal
By combining alternative dispute resolution methods (ADR), commonly considered to be more versatile, cost-effective, and localized, and traditional court systems, Ghana has created a program consisting of “court-connected ADR and… a separate ...

CAMP hosts conferences on Complementary Nature of Arbitration and Mediation and on How Lawyers can win in ... - Bar & Bench

Google International ADR News - Thu, 2018-02-22 06:09

Bar & Bench

CAMP hosts conferences on Complementary Nature of Arbitration and Mediation and on How Lawyers can win in ...
Bar & Bench
He also encouraged the provision of mediation services in arbitration centres and the provision of arbitration services in mediation centres, in order to strengthen the alternative dispute resolution structures and increase the usage of mediation in ...

Kristen Blankley: Restorative Justice in Nebraska

ADR Prof Blog - Wed, 2018-02-21 17:02
From WFOI Kristen Blankley: Associate Professor Kristen Blankley (Nebraska) has an update on new restorative justice programs in Nebraska.  Currently, these programs are working with youth offenders, culminating in a victim/youth conference (similar, but not the same as a mediation).  Cases are coming into the program from three sources: 1) directly from schools, 2) on … Continue reading Kristen Blankley: Restorative Justice in Nebraska →

Paving the way for third-party dispute resolution funding in Singapore - JD Supra (press release)

Google International ADR News - Wed, 2018-02-21 12:01

JD Supra (press release)

Paving the way for third-party dispute resolution funding in Singapore
JD Supra (press release)
These laws abolished the tort of maintenance and champerty and legalised third-party funding in relation to international arbitration proceedings, and related court and mediation proceedings. Less than one year later, the market for third party funding ...

Other websites related to Communication and Conflict

Communication and Conflict Blog - Wed, 2018-02-21 11:05
This page gives links to websites that promote a similar approach to communication and conflict resolution to that described on this site.

SVAMC Awards AAA/ICDR's Steven Andersen for his Outstanding Contribution to Technology Dispute Resolution ... - MENAFN.COM

Google International ADR News - Wed, 2018-02-21 09:42

SVAMC Awards AAA/ICDR's Steven Andersen for his Outstanding Contribution to Technology Dispute Resolution ...
MENAFN.COM
At ICDR he is responsible for the complete range of international dispute resolution services offered by ICDR and interacts directly with lawyers in corporations and law firms throughout North America. He leads ICDR's efforts in various industry ...

SVAMC Awards AAA/ICDR's Steven Andersen for his Outstanding ... - MENAFN.COM

Google International ADR News - Wed, 2018-02-21 09:42

SVAMC Awards AAA/ICDR's Steven Andersen for his Outstanding ...
MENAFN.COM
(MENAFN Editorial) -- (SVAMC) announced today that Steven K. Andersen, Vice President of the and its (AAA/ICDR), is the recipient of SVAMC's Outstanding Contribution to Technology Dispute Resolution Award. Andersen was selected by SVAMC based on his ...

and more »

Ireland: Mediation Act 2017 - Mondaq News Alerts

Google International ADR News - Wed, 2018-02-21 09:06

Ireland: Mediation Act 2017
Mondaq News Alerts
It remains to be seen whether the act will lead to an increase in mediation and a reduction in litigation. However, the obligations referred to under Section 14 are the most significant from practitioner and client perspectives. Any party looking to ...

SVAMC Awards AAA/ICDR's Steven Andersen for his Outstanding ... - Digital Journal

Google International ADR News - Wed, 2018-02-21 08:51

SVAMC Awards AAA/ICDR's Steven Andersen for his Outstanding ...
Digital Journal
Digital Journal is a digital media news network with thousands of Digital Journalists in 200 countries around the world. Join us!

and more »

United Arab Emirates: Dispute Resolution In The UAE: Making The Region Highly Attractive To International Investors - Mondaq News Alerts

Google International ADR News - Wed, 2018-02-21 06:29

United Arab Emirates: Dispute Resolution In The UAE: Making The Region Highly Attractive To International Investors
Mondaq News Alerts
With many international investors attracted to business opportunities in the Middle East and North Africa, especially in the politically stable and economically buoyant countries of the Gulf, the effectiveness of dispute resolution services in the ...

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