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Ireland: Key Developments In 2017 - Mondaq News Alerts

Google International ADR News - Wed, 2018-01-17 09:48

Ireland: Key Developments In 2017
Mondaq News Alerts
... with a British firm to fund the case in return for a share of the proceeds if it were successful. The Supreme Court decided that since the firm who agreed to fund the litigation had no independent interest in the underlying litigation, the ...

Holland & Knight expands disputes capabilities - CDR News Magazine

Google International ADR News - Wed, 2018-01-17 06:49

Holland & Knight expands disputes capabilities
CDR News Magazine
He also has expertise in alternative dispute resolution and has represented clients in arbitral disputes before ICC International Chamber of Commerce and the American Arbitration Association. Luis Gonzalez's expertise includes helping his clients ...

Holland & Knight expands disputes capabilities - CDR News Magazine

Google International ADR News - Wed, 2018-01-17 06:33

Holland & Knight expands disputes capabilities
CDR News Magazine
He also has expertise in alternative dispute resolution and has represented clients in arbitral disputes before ICC International Chamber of Commerce and the American Arbitration Association. Luis Gonzalez's expertise includes helping his clients ...

Holland & Knight expands disputes capabilities - CDR News Magazine

Google International ADR News - Wed, 2018-01-17 06:29

Holland & Knight expands disputes capabilities
CDR News Magazine
He also has expertise in alternative dispute resolution and has represented clients in arbitral disputes before ICC International Chamber of Commerce and the American Arbitration Association. Luis Gonzalez's expertise includes helping his clients ...

Holland & Knight expands disputes capabilities - CDR News Magazine

Google International ADR News - Wed, 2018-01-17 06:29

Holland & Knight expands disputes capabilities
CDR News Magazine
He also has expertise in alternative dispute resolution and has represented clients in arbitral disputes before ICC International Chamber of Commerce and the American Arbitration Association. Luis Gonzalez's expertise includes helping his clients ...

Holland & Knight expands disputes capabilities - CDR News Magazine

Google International ADR News - Wed, 2018-01-17 06:29

Holland & Knight expands disputes capabilities
CDR News Magazine
He also has expertise in alternative dispute resolution and has represented clients in arbitral disputes before ICC International Chamber of Commerce and the American Arbitration Association. Luis Gonzalez's expertise includes helping his clients ...

Holland & Knight expands disputes capabilities - CDR News Magazine

Google International ADR News - Wed, 2018-01-17 06:29

Holland & Knight expands disputes capabilities
CDR News Magazine
He also has expertise in alternative dispute resolution and has represented clients in arbitral disputes before ICC International Chamber of Commerce and the American Arbitration Association. Luis Gonzalez's expertise includes helping his clients ...

Holland & Knight expands disputes capabilities - CDR News Magazine

Google International ADR News - Wed, 2018-01-17 06:29

Holland & Knight expands disputes capabilities
CDR News Magazine
He also has expertise in alternative dispute resolution and has represented clients in arbitral disputes before ICC International Chamber of Commerce and the American Arbitration Association. Luis Gonzalez's expertise includes helping his clients ...

INTA wins in domain dispute - IPPro The Internet

Google International ADR News - Wed, 2018-01-17 06:27

IPPro The Internet

INTA wins in domain dispute
IPPro The Internet
The International Trademark Association (INTA) has won a domain dispute over inta2018.org at the Alternative Dispute Resolution Forum. According to INTA, the infringing domain resolved to a webpage that prominently stated 'INTA International Trademark ...

Arbitration Institutions: Five Things Your Website Must Do To Attract Cases

Kluwer Arbitration Blog - Wed, 2018-01-17 01:22

Teresa Garcia-Reyes and Michael McIlwrath

TO: Secretary General, Arbitration Institution

FROM: In-house counsel involved in a major contract negotiation

Madam/Sir,

We are both in-house litigation counsel for a large international company, and your institution was recently proposed for the disputes clause in an important contract. Since neither of us had any previous experience with your institution, we searched your website for information to help us determine whether to accept.

We had no trouble finding your arbitration rules. Unfortunately, we found almost nothing else to give us comfort on the quality and impartiality of their implementation. Therefore, we felt obliged to reject the proposal and recommend a different institution’s rules in this particular contract negotiation.

This is not the first time this has happened. At least once a month, and at times more often, we reject a proposed institution due to the lack of basic information about how they operate.

Therefore, as we move into the new year, we decided to share our suggestions on how your website could be updated to make your institution easier to accept than to reject. Below are some of the most basic things we typically look for when we visit an institution’s website, and we found than none of them were present on yours.

Names and relevant information about the leaders of your institution and/or its arbitration court. This is the minimum level of transparency we expect to see. Information about who runs an institution will tell us much about its competency, international capability, and impartiality. You will have to forgive us for being suspicious when an opposing party proposes an unfamiliar institution that is not transparent about its leadership.

List of arbitrators. Obviously, all parties crave some assurance that the institution will appoint impartial, competent arbitrators in the absence of party agreement. If you have a list, publishing it is the first step towards making a party like us feel more comfortable. From just a quick glance at the names, we can assess how international your list is (are the arbitrators predominantly local lawyers or from different countries?) and whether it is a modern, diverse list or a crusty fraternity. As you can imagine, we’re reluctant to send significant disputes to an “old boys club” of which we are not members. And the more information that you provide beyond just names (such as the arbitrators’ expertise or information about how they manage proceedings), the more we are likely to feel comfortable accepting arbitration under your rules.

Quality assurance. There are three areas of the arbitration process where quality can be an issue: the appointment of arbitrators, the conduct of the proceedings, and the drafting of the arbitral award. With respect to the first, very few institutions publish information about how they identify candidates for arbitrator (for example, how they select from their own lists) or vet their competency. For some institutions, we suspect that paying a fee or being a friend of the senior leadership are the only requirements for arbitrators to be added to their list; and failing to pay a fee or dying are the only ways to be removed. Therefore, if there are criteria you consider in order to add or remove names from your list of arbitrators, it is a pity not to mention this on your website. As to quality during the course of the arbitration, we found no provision in your rules nor any contact information on your website for raising concerns if a party things a case is not being managed properly. We suggest you consider making this addition, so that you can intervene to avoid bad experiences before they happen. With respect to awards, if you have a process for reviewing drafts for errors before they are published to the parties (scrutiny), your website should describe it and the people who are responsible for it.

Data on case load. If this information is not in English, or if it is buried in a massive brochure in downloadable pdf format, we may never find our read it in the short time we have to assess an institution. We should be able to determine, with only one or two clicks, how many cases your institution has administered in recent years, the general nature of the disputes (commercial, real estate, sports, etc.), whether any were international, and average duration of proceedings.

Major initiatives. We have found that people who work with dispute resolution institutions tend to be committed to the quality of justice in the communities they serve. As dispute professionals ourselves, we probably share many interests. For example, are you considering expedited arbitration rules, guidelines for efficient conduct of disputes, ODR rules, or combining mediation and arbitration? Have you made a commitment to diversity, and what are you doing as an institution to promote that commitment? Are you helping to educate the judiciary about arbitration? If your institution is doing good things, we would appreciate being able to read about them on your website.

There is nothing here that should be surprising or difficult, at least for institutions with good governance procedures and knowledgeable staff.

And yet many institutions, like yours, do not make any of this information available or easily accessible on their websites. As a result, we reject proposals to include them in our contracts, just as we recommended rejecting your institution in our company’s current contract negotiation.

We recognize our letter may appear harsh. But please understand that we have had lamentable experiences with several other institutions over the years that did not promote quality, or lacked an appreciation of impartiality, or that simply were not equipped to administer an international case.

In fact, (former) secretaries general of other institutions have on two occasions boasted to us that their appointment procedures consisted entirely of appointing their friends, or calling their friends to ask for recommendations. In both cases, they believed this was a form of quality assurance. But ask yourself, if you had no other experiences with one of those institutions and were not a personal friend of its secretary general, would you accept to resolve disputes under its rules?

In dispute resolution, unfamiliarity gives rise to the perception of high risk. Yet there’s an easy way to combat this. Assuming that you are running your institution to provide high quality dispute resolution, then being open about about how you are doing that – specifically, your governance and operations — will instantly make you more familiar and, as a result, more attractive to parties.

In fact, you would even stand out in comparison with competing institutions that have yet to realize that transparency can help build their caseloads.

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


The post Arbitration Institutions: Five Things Your Website Must Do To Attract Cases appeared first on Kluwer Arbitration Blog.

NPRC: Achieving peace, reconciliation for all - The Herald

Google International ADR News - Tue, 2018-01-16 21:36

NPRC: Achieving peace, reconciliation for all
The Herald
Add the International Peace Institute's 2013 Report on the AU Panel of the Wise, which focused on peace, justice and reconciliation in Africa and it becomes important to use extensive approaches to combat impunity and lasting peace and reconciliation ...

and more »

An Example of The Power of Apology and Forgiveness

ADR Prof Blog - Tue, 2018-01-16 19:20
Our field aspires to promote restorative justice and healing when  one person has wronged another.  This can truly happen only when the person committing the wrong takes responsibility, typically reflected in an acknowledgment of having done the wrong and an apology.  Forgiveness can help people restore themselves as morally acceptable members of society as seen … Continue reading An Example of The Power of Apology and Forgiveness →

Obaseki orders search for bombs in Okpella as explosion kills one, bomb facility discovered - Naija247news

Google International ADR News - Tue, 2018-01-16 17:02

Obaseki orders search for bombs in Okpella as explosion kills one, bomb facility discovered
Naija247news
He urged the managing director of BUA International Limited to come out and explain his role in the alleged sponsorship of a militia group in the community. Earlier, the Okuokpellagbe of Okpella Andrew Dirisu commended the governor for his visionary ...

and more »

Explosion at IED Factory kills one in Edo …Obaseki orders search for bombs in Okpella - Nigerian Observer

Google International ADR News - Tue, 2018-01-16 12:39

Explosion at IED Factory kills one in Edo …Obaseki orders search for bombs in Okpella
Nigerian Observer
He urged the managing director of BUA International Limited to come out and explain his role in the alleged sponsorship of a militia group in the community. Earlier, the Okuokpellagbe of Okpella Andrew Dirisu commended the governor for his visionary ...

and more »

Love Thy Neighbour? A look at the new Boundary Disputes Protocol - Lexology

Google International ADR News - Tue, 2018-01-16 11:10

Love Thy Neighbour? A look at the new Boundary Disputes Protocol
Lexology
With a keen need for some structured guidance in this area in mind, Falcon Chambers and Hogan Lovells International LLP have developed a Boundary Disputes Protocol. It is said to apply “where neighbours are in dispute about the location of the boundary ...

The new Delhi international arbitration centre bill, 2018 - an institutional push to arbitration in India - Lexology

Google International ADR News - Tue, 2018-01-16 04:30

The new Delhi international arbitration centre bill, 2018 - an institutional push to arbitration in India
Lexology
Another step in the right direction appears to be the New Delhi International Arbitration Centre Bill, 2018 (Bill) which was recently introduced in the Lok Sabha. The Bill provides for the establishment of the New Delhi International Arbitration Centre ...

India: The New Delhi International Arbitration Centre Bill, 2018 - An Institutional Push To Arbitration In India - Mondaq News Alerts

Google International ADR News - Tue, 2018-01-16 03:58

India: The New Delhi International Arbitration Centre Bill, 2018 - An Institutional Push To Arbitration In India
Mondaq News Alerts
Another step in the right direction appears to be the New Delhi International Arbitration Centre Bill, 2018 (Bill) which was recently introduced in the Lok Sabha. The Bill provides for the establishment of the New Delhi International Arbitration Centre ...

NAFTA Renegotiations Present an Opportunity to Strengthen ISDS’ Public Policy Perspective

Kluwer Arbitration Blog - Mon, 2018-01-15 17:15

Abdul Mouneimne

Young ICCA

Chapter 11: Where Investors Go to Complain

NAFTA renegotiations began last year and, with attention once again on this 23-year old trade deal, critics are taking the opportunity to voice their concerns. U.S. President Trump has himself propounded, and indeed campaigned on, an abundance of criticism directed at NAFTA. While no part of NAFTA has been safe from the critics, none has been criticized as much as the Investor State Dispute Settlement (“ISDS”) mechanism under Chapter 11.

Chapter 11 establishes a framework which provides investors from NAFTA countries with “a predictable, rules-based investment climate, as well as dispute settlement procedures which are designed to provide timely recourse to an impartial tribunal.” Section B of Chapter 11 establishes the ISDS mechanism which is intended to ensure that investors and NAFTA Parties receive equal treatment in accordance with the principle of international reciprocity and due process before an impartial tribunal.

Chapter 11 is More than a Tool for Investors

Critics of Chapter 11’s ISDS mechanism argue that ISDS allows wealthy investors to undermine the capacity of NAFTA Parties to regulate or legislate in the public interest. This criticism is most commonly directed at the alleged impact of ISDS on each Party’s ability to implement trade-restrictive measures in order to safeguard the environment. Some argue that Chapter 11’s ISDS mechanism encourages NAFTA Parties to shy away from bold regulatory environmental and public policy protections so as to avoid costly arbitrations. While NAFTA’s investment protections and ISDS provisions are certainly not perfect, these arguments are misguided and generally inaccurate. A closer look at the ISDS framework under Chapter 11 reveals a far more nuanced and neutral adjudicative process than what is alleged, which, with the right revisions, could even serve as a tool to advance environmental protection.

Public Policy Can and Has Influenced Chapter 11 Arbitral Tribunals

At the outset, it should be noted that under international law a Chapter 11 tribunal is obliged to interpret NAFTA with regard to the entire treaty as well as the wider legal context within which NAFTA was enacted. In interpreting NAFTA, Chapter 11 tribunals have noted that NAFTA expresses a clear message of environmental protection and enhancement, such as under Article 1114(1), which ensures investment activity will be undertaken “in a manner sensitive to environmental concerns.” Moreover, Chapter 11 tribunals have stated that the simultaneous creation of NAFTA and the North American Agreement on Environmental Cooperation (“NAAEC”) suggests that the Parties viewed environmental protection to be compatible with open trade. While not explicitly referring to public policy considerations as was done in some free trade agreements (see, for example, the EU-Vietnam free trade agreement) NAFTA does recognize the right of States to regulate their internal public policy concerns.

Chapter 11 tribunals have also drawn from a variety of international sources to suggest that NAFTA could be interpreted to protect the environment. For instance, the tribunal in S.D. Myers, Inc. v. Government of Canada relied on Article XX of the General Agreement on Tariffs and Trade (“GATT”) to indicate that restrictive trade measures may be permissible if they are “necessary to protect human, animal or plant life or health”. This is not to suggest that all restrictive trade measures are permissible so long as they are intended to protect the environment: Tribunals have often been wary of restrictions on international trade disguised as environmental or social protections. The tribunal in S.D. Myers held that a trade-restrictive measure intended to protect the environment was not permissible if the same outcome could be “achieved by reasonably available means that are less injurious to trade.” The tribunal rejected Canada’s claim that it had enacted a regulation restricting the export of Polychlorinated biphenyl (“PCB”), an environmentally hazardous chemical compound, to protect the environment and accused Canada of wrapping up raw economic protectionism in the guise of an environmental measure without scientific merit. In reaching this conclusion, it relied on evidence which demonstrated that Canada’s export ban had actually negatively affected its environment by impeding access to affordable waste facilities and interfering with the availability of clean dumping options.

Indeed, environmental protection can serve as an affirmative defense for States facing treaty claims. For example, in Chemtura Corporation v. Government of Canada the claimant alleged that Canada’s Pest Management Regulatory Agency (“PMRA”) had enacted a trade restrictive measure which was disguised as an environmental protection to limit certain pesticides. In its analysis of Chemtura’s 1103 Fair and Equitable Treatment claims and its 1110 Expropriation claims, the tribunal noted that the PMRA had acted “within its mandate, in a non-discriminatory manner, motivated by the increasing awareness of the dangers presented by [the prohibited pesticide].” According to the tribunal, a measure adopted under such circumstances is a valid exercise of the State’s police powers. While it did not make any reference to the reasoning given in S.D. Myers, the Chemtura tribunal applied a similar analysis by considering whether the regulation was necessary to protect the environment and concluded that the outcome had been achieved through appropriate means.

Adjustments Can Be Made so that Public Policy Considerations Provide Clearer Guidance for Chapter 11 Tribunals

ISDS under Chapter 11 of NAFTA can reach beyond the protection of investors. As the cases referenced above suggest, ISDS principles of treaty interpretation can also be employed to protect the interests of the citizens of Canada, Mexico and the U.S. Thus, instead of aiming at dismantling of the ISDS procedure, NAFTA renegotiations should focus on affirming the importance of protecting the Parties regulatory powers. Therefore, the revisions should provide for tribunals to put greater emphasis on NAFTA’s existing environmental protection principles. Furthermore, NAFTA Parties should use the renegotiation talks as an opportunity to draft into the treaty more explicit language as to each Party’s commitment to environmental protection.

While NAFTA’s ISDS mechanism leaves room for improvement, its critics have failed to take into account that Chapter 11 has been interpreted by tribunals to protect the environment, which suggests that it is capable to serve both as a means to further open trade and environmental protection.

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


The post NAFTA Renegotiations Present an Opportunity to Strengthen ISDS’ Public Policy Perspective appeared first on Kluwer Arbitration Blog.

The swing under the old oak tree (and the priceless memories that accompany it) - IamExpat.nl

Google International ADR News - Mon, 2018-01-15 05:14

IamExpat.nl

The swing under the old oak tree (and the priceless memories that accompany it)
IamExpat.nl
To my knowledge, one out of ten Dutch inheritances nowadays includes international assets, meaning that the tax consequences should be checked... and on time. More and more professionals involved in conflicts concerning inheritances are realising that ...

Recognition and Enforcement of Foreign Arbitral Awards in Ukraine: The Impact of the New Procedural Codes

Kluwer Arbitration Blog - Mon, 2018-01-15 02:41

Ioana Knoll-Tudor and Oleksiy Soloviov

On October 3, 2017, the Ukrainian Parliament adopted the Law on Amendments to Codes of Commercial, Civil and Administrative Procedures of Ukraine, an 800-pages document aimed at solving the blatant problems of Ukrainian justice by replacing the three existing procedural codes. The Law has been promulgated on November 28, 2017 and the new Procedural Codes entered into force, save for a number of aspects, on December 15, 2017 – simultaneously with the enactment of the new Supreme Court of Ukraine.

The new Procedural Codes aim, among others, at improving the procedure of recognition and enforcement of international arbitral awards. Ukraine is a signatory of the 1958 New York Convention, therefore the grounds for refusing the recognition of an award are clearly stated and in practice, such refusals are relatively rare (less than 20% according to recent data). The difficulty, however, is linked to the applicable procedure: on the one hand, the lack of experience and exposure to arbitration procedures of local judges and on the other hand, the misuse by Ukrainian obligors of the appellate procedure, which leads to two and even three different appeals against recognition decisions, on the same and erroneous grounds.

These two factors led to a relatively lengthy recognition procedure, as it usually involved the review by higher courts of the judgements rendered by lower courts (statistically there are seven court hearings, at different instances). Therefore, the recognition was often delayed for 1 or even 2 years, making the quality of enforcement rather illusory.

The provisions of the new Procedural Codes with respect to the recognition of foreign arbitral awards address some of the above mentioned issues.

Exclusive competence of the Kyiv Appellate Court – The Kyiv Appellate Court has exclusive competence for all the matters related to recognition and enforcement of arbitral awards as well as setting aside procedures on the territory of Ukraine. The Supreme Court will serve as an appellate court.

The reform is expected to enhance the specialisation of the Kyiv Appellate Court judges with arbitration related issues. This change echoes the situation that existed before the previous major judicial reform of 2004. The 2004 reform cancelled the late Soviet rule (in existence since 1988) which reserved the recognition of foreign arbitration awards to the higher regional courts of Ukraine (equivalent to the modern appellate courts) to the detriment of local courts. The aim of the 2004 judicial reform was to assimilate the recognition of foreign arbitration awards to that of a regular court procedure, hence attributing this competence to local courts.

Sanction of ungrounded appeals – Misuse of procedural rights is recognized to be a ground for dismissing manifestly ungrounded appeals or otherwise erroneous motions; this provision was long awaited to prevent Ukrainian obligors from multiplying appeals as a way to delay the enforcement.

2 months’ term for the ordinary procedure – The maximum term of a recognition and enforcement of an international arbitral award is now limited to 2 months from the date of registration of the application with the court. Under the current procedural law, the maximum duration of such procedure was not clearly defined, leaving room for delays.

An accelerated procedure (10 days) – In the cases where the recognition is requested by the debtor, the new Procedural Codes provide for an accelerated procedure which has to be completed within 10 days.

Failure to appear in court is no longer a barrier to recognition – Provided that the obligor has been duly notified about the hearing, the failure to appear in court will not prevent the court from recognizing the award and initiating the enforcement measures. Indeed, requests for postponement of a hearing due to mere unwillingness to appear in court and without any valid excuse were often used by Ukrainian obligors as a way to delay the proceeding, at least for several months.

Calculation of interests – Any interest payments granted in the arbitral award must be calculated as of the day the enforcement measures take place. This provision is expected to minimize the financial risks for foreign applicants in case the enforcement against a Ukrainian obligor is substantially delayed. Importantly, this provision will enter into force only on January 1, 2019.

Interim measures – The list of interim measures, which can be ordered by the court during the recognition procedure is expanded. Among others, interim measures are made available against third parties and can be ordered at any stage of the procedure, both prior to and after initiating the recognition procedure.

Conclusion

The revised rules introduced by the new Procedural Codes have the potential of rendering the procedure of recognition and enforcement of international arbitral awards more efficient, fair and user-friendly. In 2017, a number of other CEE countries have also revised their arbitration acts or the procedure applicable to arbitration related issues, among them Russia, Hungary and Bulgaria. Most of these reforms are aimed at modernising national legislation to become more supportive of international arbitration but also at increasing the recourse to domestic arbitration (for example, with the creation of new local arbitration institutions and with a broader concept of arbitrability). Although each country maintains its own specificities, the timing of these reforms demonstrates that arbitration in CEE is a reality and that local companies are slowly starting to perceive arbitration as a common mechanism of resolving their disputes.

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


The post Recognition and Enforcement of Foreign Arbitral Awards in Ukraine: The Impact of the New Procedural Codes appeared first on Kluwer Arbitration Blog.

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