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BB mulls guideline to recover bad loans - The Daily Star

Google International ADR News - Wed, 2018-04-18 13:21

BB mulls guideline to recover bad loans
The Daily Star
The central bank has asked the Association of Bankers Bangladesh (ABB) and the Bangladesh International Arbitration Centre (BIAC) to draft a guideline to recover non-performing loans and amend relevant laws. The directive came at a meeting at ...

Istanbul Arbitration Centre goes from strength to strength - International Law Office

Google International ADR News - Wed, 2018-04-18 08:47

Istanbul Arbitration Centre goes from strength to strength
International Law Office
The Istanbul Arbitration Centre (ISTAC) has provided dispute resolution services to Turkish and foreign entities through arbitration and other alternative dispute resolution processes since the introduction of the ISTAC Arbitration and Mediation Rules ...

Transfer pricing review and adjustments in Italy - Lexology

Google International ADR News - Wed, 2018-04-18 05:23

Transfer pricing review and adjustments in Italy
Lexology
Transfer pricing adjustments can be settled through various alternative dispute resolution procedures, which imply significant reductions in the applicable penalties. If no pre-contentious settlement with the tax authorities is achieved, taxpayers may ...

and more »

Board Chairman of Hong Kong Federation of E-Commerce Mr. Joseph Yuen Appointed Chairman of WTA - Markets Insider

Google International ADR News - Wed, 2018-04-18 05:05

Markets Insider

Board Chairman of Hong Kong Federation of E-Commerce Mr. Joseph Yuen Appointed Chairman of WTA
Markets Insider
... privacy, alternative dispute resolution and monitoring. With the spread of broadband and mobile devices such as smart phones and tablet PCs, e-commerce transaction is expected to continue to expand. Since different countries apply different ...

Companies still fronting through trusts - Citizen

Google International ADR News - Wed, 2018-04-18 04:47

Citizen

Companies still fronting through trusts
Citizen
The Broad-Based Black Economic Empowerment (B-BBEE) Commission says companies are still dabbling in fronting through the use of trusts. Commissioner Zodwa Ntuli told parliament's select committee on trade and international relations on Tuesday that 83 ...

ICCA Sydney: Building Better Arbitration Proceedings – Efficiency and the Lessons to be Learned from Other Dispute Resolution Frameworks

Kluwer Arbitration Blog - Wed, 2018-04-18 02:41

Nasreen Jahan

Young ICCA

The 10th panel session of the ICCA Sydney Congress 2018 with The Honourable P A Bergin, Singapore International Commercial Court; Dr. Shen Hongyu, Supreme People’s Court (China); Flip Petillion, Petillion (Belgium); and Henri C. Alvarez, Vancouver Arbitration Chambers (Canada) and moderated by Stephen L. Drymer, Woods LLP (Canada), continued this year’s theme of evolution and adaptation in commercial arbitration, centring its discussion on features of other dispute resolution mechanisms that may be transposed into the realm of commercial arbitration in order to enhance the cost effectiveness and speedy resolution of arbitral disputes. Each panellist explored their own experiences with different forms of dispute resolution in order to evaluate the efficiency of commercial arbitration, highlighting, in the process, what they have seen to be problematic tendencies in the commercial arbitration sphere. While much of this comparative exercise involved weighing commercial arbitration against the Australian court system, speakers Hongyu Shen and Henri Alvarez added colour to the discussion by exploring favourable aspects of the Chinese courts and sports arbitrations, respectively.

The Hon. Patricia Bergin commenced the session by castigating “doomsayers” who claim that commercial parties now hold a level of disdain for the courts and their adversarial nature. Patricia Bergin submitted that there is no evidence of such disdain, despite the fact that commercial parties are now often seen to favour arbitration over other forms of dispute resolution. In fact, it was noted by the entire panel that present-day arbitrations have proven to be rather protracted and laborious in practise, falling well short of the promised efficiency which often attracts parties to arbitration in the first place.

Both Patricia Bergin and Hongyu Shen suggested that aspects of traditional litigation can prove useful in enhancing the efficiency of arbitral proceedings. For example, Practice Note SC Eq 11 of the Equity Division of the NSW Supreme Court (including the Commercial List but excluding the Commercial Arbitration List), now provides:

“Disclosure
4 The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.
5 There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.”

Reference to “evidence” in this practice note means all evidence- claim, reply and all supporting evidence- and restricts the court to ordering discovery only after parties’ reply submissions have been delivered. The audience heard that this guideline should be applied more commonly in arbitral proceedings. The discussion period offered robust agreement on this point from speakers, moderator and audience members alike, with many pointing out that until each party’s reply to the other’s claims is examined, the true issues of the case cannot be properly evaluated. This means that when document discovery is allowed to occur immediately after filing of the initial claims, unnecessary (and unnecessarily broad) requests are made and the discovery process can take several months to exhaust. Patricia Bergin noted that the average legal cost that parties incur during discovery alone in large commercial arbitrations averages 2 million dollars. Problematically, the IBA Rules regarding document discovery (see Article 3) permit parties to submit to the Arbitral Tribunal and the other parties a Request to Produce, within any time ordered by the Tribunal, so long as the request is “relevant to the case and material to its outcome”. Arguably, this poses a much lesser threshold than the NSW Supreme Court guideline and allows tribunals to more readily order discovery immediately after the submission of initial claims and before replies.

A point was made that in the age of technology, inefficiencies such as this are all the more objectionable- the very function of advents such as e-discovery tools is to accelerate the process of discovery and yet, it is perhaps the introduction of these tools that has allowed the process to remain laborious as they enable parties to drown each other in Redfern Schedule requests and production of documents- most of which ultimately do not go to the crux of the issues in dispute. Panellists observed that rare are the cases where a “smoking gun” is discovered in an opposing party’s document production. Rather, most disputes centre on presenting and defending one’s own arguments. Given this tendency in arbitral disputes, it is time that discovery takes its place as a supporting, rather than central process in arbitration in order to accelerate final resolution of disputes.

This point was reiterated by Henri Alvarez, who stated that a common cause of frustration amongst arbitrators is that whilst they attempt to push parties along, parties themselves favour a luxuriously paced process. While it has been suggested that the memorial system in arbitral proceedings overcomes the prohibitive cost and time impact that is seen in traditional litigation, Patricia Bergin disagrees. Members of the panel commented that memorials of claim in arbitral proceedings have not served their promised purpose of condensing the parties’ claims, with memorials often extending to hundreds of pages long. Accordingly, it was suggested that page limits for memorials and witness statements should be imposed more frequently by tribunals to compel parties to distil their submission to the very nucleus of their claims, again going some way towards accelerating the proceedings and arriving more efficiently at a final award.

Henri Alvarez also delivered novel insights and comparisons from the field of sports arbitration as against commercial arbitration. Where sports arbitrations are mandated by sporting contracts between athletes and sporting institutions, they are hallmark examples of extreme efficiency of the arbitration process. As an example, tribunals acting on FIFA arbitrations are held to tight time frames for the delivery of each party’s evidence and tribunals are compelled to deliver awards within 48 hours of the hearing. Another aspect that is lacking in the commercial arbitration world is that with consistency in sporting arbitral awards which stems from a reliance on authoritative precedents.

As a counter-point to the entire discussion, it was noted that context is key to the success of any system and that no one mechanism can be transferred to another area without posing unique issues, even when certain adaptations are made. That is, there exists no universal system capable of meeting all needs in all areas. This is especially true of commercial arbitration as it is the one binding mechanism of alternative dispute resolution that often canvasses extremely complex legal issues and subject matters. The consensual nature of arbitration perhaps plays to its favour in this regard, as procedures can be tweaked to suit the particular needs of the parties to a particular dispute.

The closing remarks of the panel served as a poignant reminder to practitioners in the field; it is the parties themselves who bear the responsibility of ensuring that the unique benefits of arbitration are reaped; it is the parties themselves who are responsible for ensuring arbitration lives up to its promise of being a cost and time effective alternative dispute resolution mechanism, perhaps by borrowing from the beneficial aspects of court and sporting arbitral proceedings as presented by the panel.

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ICCA Sydney: Hot Topics

Kluwer Arbitration Blog - Wed, 2018-04-18 00:41

Brecht Valcke

Young ICCA

In a much-anticipated session at ICCA Sydney Conference 2018 moderated by Mark Kantor, the panel: Joongi Kim, Yonsei Law School (Republic of Korea); Judith Levine, Permanent Court of Arbitration (Australia, Ireland); Natalie L. Reid, Debevoise & Plimpton LLP (Jamaica), tackled the following four “hot topics” in international arbitration:

1. illegally obtained evidence;
2. the One Belt, One Road initiative;
3. parallel proceedings; and
4. harassment & sexual misconduct.

1. Illegally obtained evidence

Whether evidence that was illegally obtained will be thrown out of the tribunal largely depends on who obtained the evidence.

If the party, or its counsel, had a hand in obtaining evidence in a less than kosher way, that evidence will be considered inadmissible on the basis that the party bringing the evidence does not have “clean hands”.

A party who relies on illegally obtained evidence “found” in the public domain (e.g. through Wikileaks), may find the evidence admissible. One of the considerations to allow the evidence is whether the party against whom the evidence is brought, objects to its admission. In cases were no objection was made, generally, the evidence was admitted. In cases where the party did object, the tribunal weighed the interest to find the truth against the risk of allowing the evidence would cause damage to the objecting party.

Another consideration is the interest for the tribunal to know relevant information that is already in the public domain. Sometimes, an independent advisor will assess the evidence and report back to the tribunal in an attempt to protect the tribunal from being influenced by any privileged information the tribunal would not have known, but for the leaked evidence.

The panel pointed out that the IBA Guidelines on Party Representation in International Arbitration (2013) and Article 9(2) and 9(3) of the IBA Rules on the Taking of Evidence in International Arbitration (2010) are of limited help. These soft-laws address the issue of inadmissibility of false evidence but is silent on the question of illegally obtained evidence, which may not necessarily be false evidence.

So what can be done? The tribunal has the power to rule on the admissibility of the evidence. As mentioned above, whether this type of evidence will be admissible generally depends on considerations of involvement of the party, or its counsel, and the egregiousness nature of how the evidence was obtained.

The panel concluded this topic by posing the question who should sanction the party who obtained evidence illegally? Is the function of a tribunal to be a watchdog, limited to assessing admissibility of such evidence; or act as a bloodhound, sanctioning the party or counsel? Is it more appropriate for the court of the seat to address this issue; or is it the bar association or law society to which the counsel is admitted?

2. One Belt, One Road initiative (OBOR)

China’s monster construction project of constructing a maritime silk road (One Belt) and a land based silk road (One Road) will connect China with 71 countries and its markets, with a potential of more countries to follow. Of those 71 countries, 55 also have BITs, but many of them are challenging jurisdictions.

A recent development in China is the creation of “OBOR-courts”. A court in Xi’an will hear disputes on the Road initiative; a court in Shenzhen will hear disputes on the Belt initiative; where a court in Beijing will operate as a “headquarter”.

Other developments triggered by the OBOR initiative are CIETAC’s recently published investment arbitration rules, and the creation of an e-OBOR initiative in Hong Kong.

With over a trillion dollars in projects, it is surprising that no investment has been made to date in the OBOR initiative by the Asian Infrastructure and Investment Bank (AIIB).

Where there are construction projects, disputes usually follow. With 71 jurisdictions involved, of which many States are not near at arms length with China, parties in dispute will very likely seek a neutral forum to bring the dispute; international arbitration is an attractive option.

The panel drew attention to China’s multi-tier dispute resolution clause of going through stages of negotiation and mediation before arbitrating. Clauses like this, if carefully drafted and applied, have the potential of preserving long time commercial relationships. However, the potential delay in finalising a dispute, especially when delaying a contraction project, may very well kill the project or bankrupt the construction company.

3. Parallel Proceedings

Over the last four years, it has not been uncommon for a party to seek provisional measures to address the issue where one of the parties or witnesses is also involved in domestic criminal proceedings. In assessing this request, the tribunal has to balance the sovereign right or duty of a State to prosecute criminal proceedings with the principle of due process, more specifically the right to access to an international forum and the integrity of arbitral proceeding. In general, tribunals have granted provisional measures where the criminal proceedings negatively impact the integrity of the arbitral proceedings, e.g. where a witness is unable to provide its testimony because he or she is unable to attend the tribunal.

The Permanent Court of Arbitration has a system in place to allow for safe passage of a key witness against whom an INTERPOL or EUROPOL arrest warrant has been issued. The tribunal has also taken the voluntary action to travel to the witness.

An interesting point was raised by the panel discussing the impact the conclusion of the domestic criminal proceeding may have on the arbitral proceedings still on foot. Considering the burden of proof is higher in a criminal proceeding, would a tribunal be tempted to put more weight on relevant factual evidence from the criminal proceedings?

Another intriguing question posed by the panel was what if the tribunal ignores or denies the domestic criminal judgment? Would this open up the arbitral award to scrutiny of not be recognised or enforced under the New York Convention’s public policy ground?

4. Harassment & Sexual Misconduct

Confidentiality and privacy have long been saluted as a major advantage arbitration provides to court proceedings in a commercial dispute.

However, consumer and employment law arbitrations are challenging these very notions of confidentiality and privacy, demanding instead transparency and public accountability.

One of such cases where the demand for transparency and public accountability is especially strong is where an arbitration clause in an employment or other contract is used to hide a case of harassment or sexual misconduct from public scrutiny.

The “hot topics” panel certainly left the attendees with lots of interesting talking points for the gala dinner tonight.

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How to end farmers/herders clashes with ADR — Ben Odoh, CEO, Negotiation PowerHouse - Daily Sun

Google International ADR News - Tue, 2018-04-17 23:31

Daily Sun

How to end farmers/herders clashes with ADR — Ben Odoh, CEO, Negotiation PowerHouse
Daily Sun
The primary objective of settle with laughter is to create mass public awareness and acceptance of options for peaceful settlement of disputes – Alternative Dispute Resolution (ADR) mechanisms. Using entertainment as a tool, the programme aims to craft ...

ICCA Sydney: The Moving Face of Technology

Kluwer Arbitration Blog - Tue, 2018-04-17 21:17

Geneva Sekula

Young ICCA

Part 1: Technology as Facilitation

“The future is already here; it’s just not evenly distributed.”

Paul Cohen, assisted by Gabrielle Nater-Bass, Hugh Carlson and Rashda Rana SC, opened his session with this quote from Mr William Gibson, and was able to demonstrate it through his discussion of technology as facilitation in arbitration.

Upon entering the conference room, delegates most likely did not anticipate watching clips from Star Trek, watching a witness interview with Darth Vader, or discussing Snapchat filters, but as they were led through various technologies that could be used to assist the development of arbitration they saw all this and more.

The session was structured around three key technologies. The first, augmented reality (AR), was demonstrated to the audience through an app, which delegates were instructed to download at the start of the session. The panel considered the fictional case, Galactic Empire v Death Star Manufacturers, Inc, in which the Empire seeks to sue DSM for negligent manufacture of its Death Star. AR was used to visually demonstrate to the audience the set of physical circumstances required to lead to the destruction of the Death Star, and to help the Tribunal visualise the structure they were being asked to consider.

While this was highly entertaining, it was an important demonstration of the ways that augmented reality can be used within arbitration, for example in the context of a construction dispute where the parties may wish to show the Tribunal the technical side of what is being debated. Ms Gabrielle Nater-Bass cautioned that though the use of AR is appealing, parties must be cautious to ensure that its use does not jeopardise due process and the rights of parties to be heard, to receive equal treatment, and the right to present their own case.

The second technology considered by the panel was that of instant translation. Given the cross-border nature of international arbitration, the value of this technology is immediately apparent. The panel used Microsoft Translate to demonstrate how an app can process this sort of linguistic information almost instantaneously. However, given the complexity of legal language and issues in dispute in arbitral proceedings, this technology is not yet mature enough to be implemented. Issues such as confidentiality would also need to be considered as the technology develops.

Finally, real time analytics and artificial intelligence were considered as a means by which data could be processed and analysed. Self professed Star Trek expert, Mr Cohen explained they had downloaded the full suite of Star Trek episodes, and demonstrated as certain videos were digitally and instantly extracted as evidence of various propositions (for example that Vulcans are incapable of telling a lie).

Part 2: Technology as Disruption

Part 2 of the panel took a different approach as the new panellists turned to consider technology as disruption. Brandon Malone as moderator was joined by Carsten van de Sande, Sophie Nappert and Matthew Kuperholz, for a sub-panel on artificial intelligence (AI).

Sophie Nappert drew attention to the advanced development of AI, and the ways that technological advances have already started to reshape the legal profession. Ms Nappert also asked the delegates to consider where these advances were taking us. For example, if computers are able to deliver perfect legal reasoning, what need would we have for appeal mechanisms or judicial review? However, Ms Nappert highlighted part of what it is to be human is equity, empathy, conceptual thinking, emotional intelligence, fairness and trust; and these are essential ingredients in (human) dispute resolution. It might mean that parties prefer to reign in computers, and allow fairness, common sense, honesty and empathy to come to the fore.

Carsten van de Sande took a different approach, and suggested that AI would replace human arbitrators as fact finders and adjudicators. He suggested that where AI can overcome narrow, purpose specific application, and can replicate a human’s ability to reason, solve problems and innovate, this would lead AI to develop thoughts and ideas. Experts now believe that by 2045 there will be a functioning AI that will be able to reason like a human being. Mr van de Sande rejected the notion that parties want arbitrators to employ empathy and emotional intelligence, rather parties want arbitrators to adjudicate dispassionately. One man’s empathy is another man’s bias.

Mr van de Sande also considered the criticism that AI cannot explain how it arrived at the decision it did. Mr van de Sande noted that this is not so different from a human arbitrator – the process leading to a decision is never fully transparent, parties simply tend to have an inherent confidence in the human arbitrator because we understand better how their mind words.

The second sub-panel dealt with cyber security. Edna Sussman, Alana Maurushat and Hagit Muriel Elul considered challenges in the digital age, particularly how people are the weakest link in tech defence, and introduced the Draft Cybersecurity Protocol for International Arbitration. Ms Maurushat also strongly recommended that organisations adopt cyber-insurance and helpfully advised that having a cybersecurity protocol helps to bring insurance premiums down.

Based on today’s panels it is clear the future is already here, and it will be fascinating to see where these technologies take the arbitration world.

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ICCA Sydney: Building Better Arbitration Proceedings – Practical Suggestions I: Revisiting Conventional Wisdom in the Organization of Arbitral Proceedings

Kluwer Arbitration Blog - Tue, 2018-04-17 19:43

Jonathan Mackojc

Young ICCA

The morning session at ICCA Sydney Conference 2018 on “Revisiting Conventional Wisdom in the Organization of Arbitral Proceedings” was moderated by Chiann Bao and had the insightful contributions of Funke Adekoya SAN, Dr. Fuyong Chen, Klaus Reichert SC and Prof. Nayla Comair-Obeid.

Chiann Bao insisted that we ought to deal with issues of procedure by firstly examining the existing structure and questioning whether the current system is wise. Chiann Bao broadly suggested that the following three questions must be considered if we are to unpack the notion of ‘conventional wisdom’:

1. What are we actually organising and what are we seeking to achieve?;
2. What influences conventional wisdom?; and
3. Are there any aspects that should be revisited?


What are we actually organising and what are we seeking to achieve?

Klaus Reichert SC asserted that both the tribunal and parties must share a common understanding of the object and purpose of the arbitration, to avoid a costly and unsatisfactory outcome. The key contention was that disputes are not settled by procedures, but rather relief that is granted by the tribunal. It was noted that most experienced arbitrators commence by reading the prayers for relief, and then work their way back to the beginning of the statement of claim or defence. This is particularly important as the tribunal does not (or at least ought not) have full jurisdiction over parties, as it is restricted to jurisdiction over prayers for relief. The absence of a wide-ranging jurisdiction renders statements such as ‘…further or other relief which the tribunal may award’ superfluous and thus meaningless.

Klaus Reichert SC offered a simple yet powerful solution: immediately after the tribunal is constituted, it must inform parties that they ought to carefully consider prayers for relief as any request to widen the scope at a later stage may be denied by the tribunal. Promoting a strong foundation at the outset will almost always guarantee a smooth process.

What influences conventional wisdom?

Chiann Bao referred to John Kenneth Galbraith OC’s thoughts on conventional wisdom as a starting point. Prof. Nayla Comair-Obeid’s interpretation of the term suggests that it represents a set of good practices and principles, passed down from the current generation of arbitration practitioners to the emerging generation. Prof. Nayla Comair-Obeid also noted that international arbitration has developed significantly, yet not solely in response to technological developments. Recent changes can also be attributed to developments in investor-state arbitration which demand constant adaption to a changing environment. Ultimately, as cases are specific in nature, the arbitration community may be permitted to deviate from conventional wisdom.

Funke Adekoya SAN suggested that we go a step further than Galbraith’s definition of conventional wisdom and consider material which is readily available such as the UNCITRAL Notes on Organizing Arbitral Proceedings. It outlines common practice with respect to key procedural issues, and seeks to addresses power imbalances between experienced and inexperienced parties. However, it is important to note that it is merely a guide. Klaus Reichert SC shared this view, and suggested that even if uniform principles exist, people will inevitably interpret them differently. The only safeguard is sufficient dialogue, within the arbitral tribunal and among parties, as to how these principles are to be interpreted.

Dr. Fuyong Chen urged us to revisit conventional wisdom from time-to-time, and according to different perspectives, to ensure that we remain sensitive to certain cultural issues which equally influence the development of international arbitration. In the case of China, these include the restrictions on ad hoc proceedings, the use of Med-Arb, and the importance of witnesses.

Klaus Reichert SC referred back to Galbraith’s definition of conventional wisdom, noting that it suggests it may change at any time. This has recently been observed, particularly where certain (and often new) arbitration stakeholders are on the look out for the next sound bite, tweet, or conference topic. Such an approach disregards fundamental points of organisation and conventional wisdom. Klaus Reichert SC also highlighted that the arbitration community is currently obsessed with the ‘arrogance of internationalism’ – where just because one arbitral institution adopts a certain procedure or initiative, others must follow suit.

Are there any aspects that should be revisited?

The panel’s list included: online arbitral proceedings, word limits for submissions, front-loading the arbitral process, common understanding of definitions relating to evidence, whether cases should be allowed to ‘breathe’, and considering the ‘essential, desirable, superfluous’ award. The panel agreed that the first seemed to be the most relevant at present.

Other Considerations

The panel agreed that the role of the tribunal secretary must be examined further, particularly whether delegating legal research to the secretary suggests misconduct (as it may be considered an element of ‘decision-making’); and
Prof. Nayla Comair-Obeid’s call to action – experienced practitioners must involve emerging practitioners in arbitration prayer meetings and that this is not a choice but rather a duty.

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Australia: Emerging technologies and the benefit of International Arbitration clauses - Mondaq News Alerts

Google International ADR News - Tue, 2018-04-17 17:50

Australia: Emerging technologies and the benefit of International Arbitration clauses
Mondaq News Alerts
International arbitration is a prime alternative to dragging disputes through foreign law courts. This alternative dispute resolution mechanism is a process by which parties to a dispute agree in advance to have that dispute determined by a neutral ...

St. Thomas Connects with Global Arbitration Community in Peru - University of St. Thomas Newsroom

Google International ADR News - Tue, 2018-04-17 13:49

St. Thomas Connects with Global Arbitration Community in Peru
University of St. Thomas Newsroom
St. Thomas law school has been building its global presence since it launched its first degree program for international students — the LL.M. in U.S. Law – in 2014. The school has taught students from Mexico, Guatemala, China, Costa Rica, Nicaragua ...

Transfer pricing in Italy - Lexology

Google International ADR News - Tue, 2018-04-17 09:03

Transfer pricing in Italy
Lexology
Article 110(7) was amended in 2017 and now makes explicit reference to the arm's-length principle, to be interpreted in accordance with international best practice. The draft implementing Level 2 measure, recently published by the Italian Ministry of ...

Wake Up Call: Judge Okays Facebook Photo-Scanning Case Seeking Billions - Bloomberg Big Law Business

Google International ADR News - Tue, 2018-04-17 06:12

Bloomberg Big Law Business

Wake Up Call: Judge Okays Facebook Photo-Scanning Case Seeking Billions
Bloomberg Big Law Business
Michael Best & Friedrich LLP said veteran IP litigator Shane A. Brunner joined the firm's litigation practice group as partner in Madison, Wisconsin. Brunner's Linkedin page says the former Jenner & Block associate spent nine years as a partner at ...

Arbitration and Conciliation (Amendment) Bill, 2018: A missed opportunity? - Business Today

Google International ADR News - Tue, 2018-04-17 04:19

Business Today

Arbitration and Conciliation (Amendment) Bill, 2018: A missed opportunity?
Business Today
Role of the ACI in making India a hub for International Arbitration. The ACI will maintain an electronic depository of all arbitral awards. The ACI shall also evolve policy and guidelines for the establishment, operation and maintenance of uniform ...

SIDREC expands purview, can handle claims above RM250,000 - New Straits Times Online

Google International ADR News - Tue, 2018-04-17 01:50

New Straits Times Online

SIDREC expands purview, can handle claims above RM250,000
New Straits Times Online
“This is a natural precursor to ongoing discussions between SIDREC and Asian International Arbitration Centre's proposed collaboration to provide for specialist capital market arbitration in the near future. “SIDREC has also positioned itself to ...

Trade Dispute Resolution Act, to promote int'l trade with Pakistan: NA body - Pakistan Observer

Google International ADR News - Tue, 2018-04-17 01:14

Trade Dispute Resolution Act, to promote int'l trade with Pakistan: NA body
Pakistan Observer
Committee met here with Siraj Muhammad Khan in the chair and observed that the Act would help in promoting international trade in Pakistan by aligning trade governance with international best practices (WTO & United Nations Commission on International ...

and more »

ICCA Sydney: Arbitration Challenged II – Party Autonomy in Choosing Decision-Makers: Advantages and Drawbacks – Should it be Revisited?

Kluwer Arbitration Blog - Tue, 2018-04-17 01:09

Jonathan Mackojc

Young ICCA

The afternoon session at ICCA Sydney Conference 2018 on “Party Autonomy in Choosing Decision-Makers” was moderated by Prof. Dr. Gabrielle Kaufmann-Kohler and had the insightful contributions of Alfonso Gómez-Acebo, Audley Sheppard QC, Natalie Y. Morris-Sharma and Ruth Stackpool-Moore.

The session commenced with Prof. Dr. Kaufmann-Kohler underscoring the importance of maintaining party autonomy in international arbitration. Prof. Dr. Kaufmann-Kohler argued that the ability to choose an arbitrator is more than a hallmark of international arbitration; it is the keystone.

Prof. Dr. Kaufmann-Kohler also noted that investment arbitration has recently faced significant scrutiny, forcing the international arbitration community to consider certain reforms to ensure that it continues to be seen as a legitimate form of dispute resolution for investor-state disputes.

Role of party-appointed arbitrator

Alfonso Gómez-Acebo asked whether the expectations of a party-appointed arbitrator are the same as that of a presiding arbitrator. Alfonso Gómez-Acebo also highlighted the existing debate with respect to the unilateral appointment of arbitrators, and whether this tried-and-tested mechanism should remain as a default, or whether it ought to be entirely abolished. Alfonso Gómez-Acebo argued that this necessarily depends on the ‘role’ or ‘job description’ of party-appointed arbitrators. It was noted that there is currently no understanding, or set of written rules, which address what that particular role may be.

Alfonso Gómez-Acebo also noted that it is disconcerting to contemplate that one should presume that a specific role exists, as this in itself brings about confusion regarding independence and impartiality, an imbalance in the arbitral process, and the introduction of bias.

Overall, it was argued that there is a need for clarity regarding the role of party-appointed arbitrators and that there may be value in exploring special roles for certain party-appointed arbitrators, provided that both parties agree to do so. The most important action is to facilitate increased dialogue between parties, to ensure that their views regarding special roles are considered.

Audley Sheppard replied by stating that there should not be a positive obligation on party appointed arbitrators to adhere to specific roles. However, this should not discourage party-appointed arbitrators from better articulating their parties’ case in the event that their arguments have been poorly presented by counsel, or simply to ensure that the other members of the tribunal ‘get it’. It seems natural that a party would expect such support from its appointed arbitrator, and such initiative would not compromise expectations of independence and impartiality. After all, international arbitration is underpinned by the notion that parties strive to select the best arbitrators in the first place.

Quality of institutional appointments

Ruth Stackpool-Moore agreed with Audley Sheppard that an understanding of the role of party-appointed arbitrators is not enough, and proposed that it may be time to submit to a full-scale evolution of the arbitrator appointment process – by firstly assessing the status quo regarding institutional appointment, and then proposing specific improvements to the process.

Ruth Stackpool-Moore noted that there seems to be a general hesitation to accept that institutions play a pivotal role. Statistics from the QM Arbitration Survey, BLP Arbitration Survey and from institutions such as HKIAC, SIAC, LCIA and ICC, cumulatively suggest that institutions do in fact play a significant role in the appointment of arbitrators. Ruth Stackpool-Moore proposed that institutions must immediately address transparency – an exercise that would necessarily involve clear and comprehensive information with respect to the appointment process. This may include details as to who is responsible for such decisions and their experience, how such decision-makers are selected, and even the criteria used to inform the final appointment.

Natalie Y. Morris-Sharma welcomed Ruth Stackpool-Moore’s call to action and contributed the following points:

trust stems from more than the quality of appointments – institutions must have a good reputation;
institutions must strike the right balance regarding the type and extent of transparency; and
institutions must carefully consider the quality of their appointments, and ensure that their criteria are aligned to party criteria– a consultation process would be an ideal solution.

Prof. Dr. Kaufmann-Kohler then remarked – if we are to pursue greater appointment from institutions, what standard are we to adopt?

Reforming ISDS

Natalie Y. Morris-Sharma acknowledged that investor-state dispute settlement is facing a legitimacy crisis, irrespective of whether this is real or imagined. Three possible solutions with respect to the arbitrator appointment process were proposed:

1. ‘Arbitrators ad hoc’ – following the approach of certain courts which have a ‘Judges ad hoc’ system, increasing the tribunal from three to five members. This may assist parties with real or perceived concerns regarding arbitrator bias. This should remain an option rather than an obligation.
2. ‘Circumscribed appointments’ – rely on pre-established lists which would require parties to internally rationalise their appointments, as they would need to balance considerations of both an investor and host state.
3. ‘Agreed appointments’ – parties to agree at an early stage, empowered by an investment treaty. Though difficult, it is viable as long as parties have options and timelines.

Panellists also discussed the possibility of a permanent multilateral investment court, discussing issues such as Groupthink, homogenous decision makers, the role of dissents and other psychological pressures.

Takeaway

The arbitrator selection process is one of the most important aspects of an arbitration proceeding, and a key reason why parties choose arbitration over litigation. All panellists agreed that it now deserves significantly more attention in both commercial and investment arbitration, as it impacts a variety of stakeholders. Active participation in the arbitrator selection process by all concerned parties is imperative; it will ensure that the best possible arbitrators are appointed to meet the specific needs of a case.

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ICCA Sydney: Arbitration Challenged I – Reforming Commercial Arbitration in Response to Legitimacy Concerns

Kluwer Arbitration Blog - Tue, 2018-04-17 00:51

Geneva Sekula

Young ICCA

What if Facebook, as a result of its recent negative publicity, had the opportunity to file a request for arbitration against Cambridge Analytica? A key principle of international commercial arbitration is its maintenance of confidentiality, but would the public interest in such an arbitration justify greater transparency?

The afternoon panel of the first day of the ICCA Sydney Congress 2018 grappled with questions such as these in its examination of how international commercial arbitration is positioned to respond to growing challenges and concerns related to its legitimacy. Various criticisms include that arbitrations take too long, that they are too costly, that they are secretive, that there is no accountability etc. But how can the arbitration community respond?

Mr Dietmar W Prager’s opening remarks and Mr Andrés Jana’s presentation shone a spotlight on the tension that exists between public and private interests within an arbitration. A cornerstone of the concept of international commercial arbitration is party autonomy and party freedom in dictating the terms of their own dispute resolution.

However, there are strong public interest factors which emerge in arbitration proceedings, which Mr Jana characterised as stemming from two arenas:
The specific arena: the involvement of states and state entities necessarily brings into question issues of public interest. In 2017, 15.4% of ICC arbitrations involved a state party or state entity.
A more general arena: the large scale social significance of arbitration continues to grow, attracting more public scrutiny and focus.

There is a natural tension which exists between the promotion of public and private interests, and Mr Jana noted that adopting a framework which considers both is a good way to start to find a solution to enhance perceptions of legitimacy. Considering both interests is more likely to produce a favourable result.

However, of particular interest were the comments made by Ms Noradèle Radjai. Her presentation focused on a specific manifestation of the tension between public and private interests, through an examination of the criticism that the growth of international arbitration is hindering the development of the common law. Her thesis grew from the position that indeed, cases that might have otherwise contributed to the development of the common law are being arbitrated, thereby not forming part of case law. English and US law are the most common choices of law for international commercial arbitrations, and therefore these systems of law are particularly affected by this issue.

There are necessary issues of legitimacy to confront in this arena. From a global perspective, if a third of jurisdictions (i.e. common law jurisdictions) are limited in their development of precedential law then this is not a legitimate outcome. Ms Radjai noted however that this issue also impacts civil law jurisdictions, which though do not adopt binding precedent, use case law as influential precedent. Regardless of whether one takes a narrow view (i.e the interest of a party, or the arbitration community) or the wider global view, there are legitimacy issues that need to be confronted.

So what is the solution for the arbitration community? Any solution must be careful not to override the autonomy of the parties in choosing arbitration as their forum for dispute resolution. Ms Radjai suggested that one possible way to mitigate this issue is through a more systematic publication of arbitral decisions. Wider publication would enable parties to refer to more decisions, and also allow courts to allocate appropriate weight to certain decisions. Ms Radjai recommended that these awards could carry the same weight as other non-precedential material, such as academic materials and judicial decisions from other jurisdictions.

In the discussion that followed her presentation, Ms Radjai also suggested that to balance confidentiality concerns, publication bodies could anonymise the names of the parties, implement a cooling off period or 2 or 3 years before publication, and publish the reasoning with limited reference to the facts, in an effort to protect and preserve confidentiality.

Unsurprisingly, the panel were unable to resolve all the legitimacy concerns facing international commercial arbitration in their allotted 90-minute time slot, however the panellists provided insightful and engaging responses to current problems facing the arbitration community, and made some compelling suggestions for the arbitration world to consider moving forward.

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ICCA Sydney: Law-Making in International Arbitration – What Legitimacy Challenges Lie Ahead?

Kluwer Arbitration Blog - Mon, 2018-04-16 21:40

Mitchell Dearness

Young ICCA

The theme of this year’s ICCA Congress is ‘Evolution and Adaptation: The Future of International Arbitration.’ Central to this theme was the topic of the First Plenary Session -‘Law-Making in International Arbitration: What Legitimacy Challenges Lie Ahead?’ The timing of such a discussion is apt given the Court of Justice of the European Union’s decision in Slovak Republic v. Achmea BV (Achmea). Stephan Schill (University of Amsterdam) moderated the discussion. The panel comprised of Sundaresh Menon (Singapore Supreme Court), Alexis Mourre (ICC International Court of Arbitration), Lucy Reed (National University of Singapore) and Thomas Schultz (King’s College London).

Thomas Schultz considered the concept of ‘legitimacy’ in this international arbitration context, noting that it ought to be viewed from the perspective of key actors (such as arbitrators and arbitration institutions) who have the ability to influence law-making.

Lucy Reed examined the role of the arbitrator and the extent to which it involves legitimate ‘law-making.’ Professor Reed noted the distinction between the role played by an arbitrator in general commercial arbitrations, in certain specialised arbitral tribunals (such as the Court of Arbitration for Sport and the Iran-US Claims Tribunal) and finally in the context of investor-state arbitrations. The legitimacy of arbitrator law-making in this final scenario (arbitrators determining investor-state arbitrations) is particularly topical in the current climate given decisions such as Achmea and the negotiation and signing of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Alexis Mourre focussed on the role played by arbitral institutions and bodies in rule-making, in particular with regard to ‘arbitration procedure.’ Arbitration cannot exist in a vacuum and the contribution made by these institutions and bodies is fundamental. One only needs to consider widely adopted instruments such as the IBA Rules on the Taking of Evidence in International Arbitration and the IBA Guidelines on Conflicts of Interests in International Arbitration. Legitimacy can be established in this context by ‘cross-fertilisation’ within the arbitration community and the existence of a ‘decentralised and horizontal rule-making process.’

Finally, Chief Justice Sundaresh Menon considered the ‘law-making’ role played by other public actors, in particular domestic legislatures, domestic courts and international organisations. In a climate where a less interventionist approach by these bodies can be called for the important and essential role played by them can be overlooked. Chief Justice Menon refers to the ‘high watermark’ being the development of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Model Law on International Commercial Arbitration.

Note: The ICCA Sydney conference papers prepared by the panelists will be published in the ICCA Congress Series No. 20. This Post is intended to provide only an overview of a detailed discussion of a complex topic.

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