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Arbitration of Criminal Plea Bargains? A Step Too Far Says Ninth Circuit

Business Conflict Blog - Thu, 2017-12-28 09:48

Thanks to Loyola Prof. Imre Szalai for bringing to our attention the interesting Ninth Circuit decision in Breazeale v. Victim Services, Inc., holding that disputes between a putative criminal defendant and a private company contracted by a prosecutor pursuant to a criminal diversion process are not subject to arbitration.

Victim Services Inc. (VSI), a Delaware corporation, is contracted by the offices of various California District Attorneys to resolve suspected violations of California’s Bad Check Statute, which criminalizes the writing of bad checks with an intent to defraud.  The putative violator is contacted by mail on District Attorney stationery and offered the opportunity to avoid criminal prosecution by entering into a program of restitution and fees that is administered by VSI.  The letter also provides that any dispute between the violator and the program administrator VSI would be subject to arbitration pursuant to AAA rules.  That “agreement” (really, an announcement) also provides that “no arbitrator or court can permit or certify a class action, representative action, private attorney-general action or consolidated arbitration in connection with [the] arbitration
agreement.”

Plaintiffs brought this action in federal district court,  alleging “that VSI’s use of official district attorney letterhead conveys the false impression the letters were sent by law enforcement, that the letters contained the false threat that failure to pay would result in arrest or imprisonment, and that the initial form letter failed to contain statutorily required
notices, all in violation of” state law.  VSI moved to compel arbitration.  The district court denied the motion and the Ninth Circuit affirmed the denial, on the ground that the putative arbitration provision of the letter was not a “contract evidencing a transaction involving commerce” within the meaning of the Federal Arbitration Act.

The holding: An agreement between an individual and a state prosecutor addressing criminal liability is not a private commercial contract and therefore not arbitrable pursuant to the FAA.  “A plea bargain is not a commercial exchange.”

It will be interesting to see the convoluted logic that the Supreme Court will employ if and when this question is before them and, consistent with its ever-broadening interpretation of arbitration law, the Ninth Circuit is reversed.

OHADA's 17 African States Adopt the Uniform Act on Mediation - Lexology

Google International ADR News - Thu, 2017-12-28 08:53

OHADA's 17 African States Adopt the Uniform Act on Mediation
Lexology
The Organization for the Harmonization of Business Law in Africa ("OHADA") is an international organization based in Yaoundé, Cameroun. It is made up of 17 states from mostly Central and Western Africa with a total population of about 200 million ...

Worldwide: OHADA's 17 African States Adopt The Uniform Act On Mediation - Mondaq News Alerts

Google International ADR News - Thu, 2017-12-28 06:51

Worldwide: OHADA's 17 African States Adopt The Uniform Act On Mediation
Mondaq News Alerts
The Organization for the Harmonization of Business Law in Africa ("OHADA") is an international organization based in Yaoundé, Cameroun. It is made up of 17 states from mostly Central and Western Africa with a total population of about 200 million ...

James B. Kobak,Jr.,Senior Ethics Counsel,Hughes HubbardandReed LLP to Speak at TKG's Speaking Opportunity-IP ... - NB Herard

Google International ADR News - Thu, 2017-12-28 02:38

James B. Kobak,Jr.,Senior Ethics Counsel,Hughes HubbardandReed LLP to Speak at TKG's Speaking Opportunity-IP ...
NB Herard
A Hughes Hubbard & Reed partner for more than 35 years, James B. Kobak, Jr has had a long and varied career. He served as lead counsel to the trustee for the Securities Investor Protection Act (SIPA) liquidations of Lehman Brothers Inc. and MF Global ...

and more »

CJN tasks Judges on use of ADR - Vanguard

Google International ADR News - Wed, 2017-12-27 20:57

Vanguard

CJN tasks Judges on use of ADR
Vanguard
Regardless of these developments, Nigeria's Alternative Dispute Resolution framework can and must develop further.” Onnoghen, who spoke on “59 years of Litigation in Nigeria; Business Demands and Future of the Courts,” said the topic was deliberate as ...

Stone Soup Assessment: A Tale of Four Mediation Courses, by Charlie Irvine, Jim Levin, Martha Simmons, and Doug Yarn

ADR Prof Blog - Wed, 2017-12-27 20:52
This post describes how Stone Soup pioneers used four different approaches in their mediation courses.  Once again, it demonstrates colleagues’ creativity and the great potential for Stone Soup. Charlie Irvine had 20 LLM / MSc students and he assigned them to interview a mediator about a recent case.  Students were required to write papers of … Continue reading Stone Soup Assessment: A Tale of Four Mediation Courses, by Charlie Irvine, Jim Levin, Martha Simmons, and Doug Yarn →

2017 Year-in-Review: Top 5 in International Arbitration

Kluwer Arbitration Blog - Wed, 2017-12-27 20:49

Kate Apostolova

YSIAC

2017 was a busy year for international arbitration. Taking a walk down memory lane, we saw new players and new industries entering the game, institutions adopting new rules, and we have some new challenges to tackle.

This note summarizes some highlights and low lights in international arbitration during 2017 from across the globe.

Happy Holidays and Happy New Year!

1. New Players: third party funders arrive in Singapore and Hong Kong

Third party funding involves a third party funder paying for the costs of a legal proceeding, in return for a share of the proceeds if the claim is successful.

Previously, Singapore prohibited third party funding and Hong Kong did not have a legal framework expressly permitting it.

In 2017, third party funding expanded its footprint to both markets. This is a welcomed development, bringing Singapore and Hong Kong in line with other common law jurisdictions.

Singapore was first to establish a framework for third party funding in March 2017, adopting legislation which (i) abolished the common law torts of maintenance and champerty, and (ii) provided that third party funding by qualifying third party funders in relation to international arbitration and related court or mediation proceedings is not contrary to public policy or illegal.

Shortly thereafter, in June 2017, Hong Kong passed long-awaited legislation making it clear that third party funding of arbitration is permitted under Hong Kong law. Unlike Singapore, though, the Hong Kong legislation has not yet come into force: watch this space in 2018.

2. New Industries: arbitration continues to aim at financial industry disputes (with the rise of expedited and summary procedures)

Arbitration is widely used in some sectors, such as the oil and gas industry, but less widely used in others, such as the financial industry. The reason for this relative lack of popularity of arbitration in the financial services sector is partly because, among financial institutions, there are perceived shortcomings of arbitration: at the core of those shortcomings is the perceived lack of availability of “summary judgment” or similar mechanisms for early disposition of simpler cases.

Arbitration institutions continuously have been refining their procedural rules in order to address this issue. SIAC was a leader, having introduced its expedited procedure rules in 2010, and last year having made available a summary disposition procedure. Tribunals have arguably always had the authority and discretion summarily to dispose of cases, pursuant to their broad case management powers. However, concerns about due process and the enforceability of arbitration awards, which is sometimes criticized as “due process paranoia,” appear to have deterred many tribunals from exercising that power.

Other institutions have met critiques of the efficiency of the arbitral process by including provisions for early dismissal or summary determination. In January 2017, the Stockholm Chamber of Commerce (SCC) adopted a new procedure which allows for summary proceedings when certain conditions are met.

In August 2017, the HKIAC also invited practitioners to weigh in on whether it should adopt a similar new procedure for the early determination of disputes.

The latest effort that has led to new rules came in March, with the ICC Arbitration Rules revisions incorporating expedited proceedings which apply automatically to any arbitration in which the amount in dispute is less than USD$2 million. Notable features of this procedure include: (i) the dispute is normally decided by a sole arbitrator; (ii) the Terms of Reference phase is dispensed with; (iii) awards must be made within six months; and (iv) the Tribunal has discretion to decide the case with no hearing, no document production and no witness examinations.

Elsewhere, in January 2017, Russia’s most prominent arbitral institution, the Moscow-based International Commercial Arbitration Court at the Chamber of Commerce and Industry, and the Vietnam International Arbitration Centre also introduced similar expedited arbitration procedures in their revised rules.

It remains to be seen whether these changes in arbitration rules will influence parties in the financial services sector to choose arbitration as their preferred method for dispute resolution.

3. New Rules: investment arbitration rules

“Investment arbitration” refers to investment disputes between a foreign investor and a host State under a treaty between the host State and the investor’s home State. Even as debates about the legitimacy and future of investment arbitration have raged, there has been a steady increase in the number of investment arbitrations around the world. Historically, investment arbitrations have been administered mainly by ICSID under the ICSID rules, as ad hoc arbitrations under the UNCITRAL Arbitration Rules, or administered by the SCC.

In an effort to increase the number of investment arbitrations it administers, in January 2017, SIAC released separate rules for investment arbitration: the SIAC Investment Arbitration Rules (SIAC IA Rules). In recognition of the differences between commercial and investment arbitrations, the SIAC IA Rules include unique features such as (i) the possibility of submissions by third parties, (ii) discretionary publication of the Tribunal’s decisions and award, and (iii) different time limits for certain filings, for the challenge of arbitrators, and for the decisions by the Tribunal.

The SCC also introduced a separate set of investment arbitration rules in Appendix III of the 2017 SCC Rules.

SIAC and the SCC were the first major arbitration institutions to offer rules for commercial arbitrations and specialized rules for investment arbitrations, but they are not the only ones. In August 2017, the HKIAC also invited practitioners to weigh in on whether it should develop its own investment arbitration rules. On 1 October 2017, in preparation for “One Belt, One Road” disputes, CIETAC also adopted new rules for investment disputes.

4. New Challenges: TPPA and NAFTA trumped

Sticking with treaties and controversy: President Donald Trump lived up to his campaign promise and on his first full day in office, took action to withdraw the US from the Trans-Pacific Partnership Agreement (TPPA). Trump described the move as a “great thing for the American worker.”

The TPPA is a free trade agreement signed on 5 October 2015 by 12 States responsible for an estimated 40% of the global economy: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. It is (or, was) intended to create major links between the Americas and Asia ex-China. It includes investor-State dispute settlement protection through binding arbitration.

As currently drafted, the TPPA can only enter into force if it has been ratified by the US. Thus, Trump’s withdrawal from the TPPA scrapped those plans…or so it seemed. The remaining 11 TPPA Member States are still considering whether to abandon the TPPA or to find a way to preserve it, without the US. In October and November 2017, they held formal negotiations. It remains to be seen whether a new deal will be reached, but there is indication the 11 TPPA Member States are serious about it.

Trump has also lived up to his promise to go after NAFTA. Trump’s Administration started renegotiations of NAFTA in August. It remains unclear whether the Administration will keep the investor-State dispute settlement in its current form or whether it will reform or replace it.

5. The Next Big Thing: IA meets AI?

Many say the legal industry, including the practice of international arbitration, needs updating. With the rise of new technology, it is undergoing a technological revolution. This is particularly apparent in Singapore where the importance of technology is impressed upon lawyers by the government in its effort to position Singapore as a legal hub and make it a “Smart Nation.”

The buzz phrase in the legal industry in 2017 was certainly “technological innovation,” including artificial intelligence (AI).

Legal technological innovation tools have been used in litigation and corporate work for some time, with software used to review large sets of documents for document production or due diligence, to do legal drafting or research through automated processes, for general case management and document organization, and to complete such mundane tasks as proofreading, formatting and editing legal documents. It is also making its way into ADR proceedings, with the latest being the use of DRExM in Egypt to resolve construction disputes. In March 2017, the Swiss Chambers Arbitration Institution held its first legal innovation conference where technological innovation in the practice of international arbitration was discussed.

Legal technological innovation has been and can be highly beneficial in international arbitration, providing numerous benefits for a more efficient and effective way of working, including by reducing costs, avoiding mistakes, and lowering lawyer stress, saving time and identifying risk early on. The demand for quality work at a reduced price to be done within a limited time frame requires the right base systems in place so that lawyers can add value where it matters most.

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


The post 2017 Year-in-Review: Top 5 in International Arbitration appeared first on Kluwer Arbitration Blog.

Foundation sensitises on education - The Nation Newspaper

Google International ADR News - Wed, 2017-12-27 19:03

Foundation sensitises on education
The Nation Newspaper
“The body intends to initiate this new academic perspective, maintain social justice and physical equilibrium through the provision of alternative dispute resolution and free legal services.” Ibeakanma, also a United Nations (UN) educator and human ...

DR Faculty Seminar in Israel – Wrap Up

ADR Prof Blog - Wed, 2017-12-27 11:24
As the organizer of our trip to Israel, I am delighted to try to bring our threads together.  I am really so pleased and grateful to all of our colleagues for their insightful reflections.  As I have said before, seeing Israel through others’ eyes was an honor to witness.  The camaraderie as we all learned together … Continue reading DR Faculty Seminar in Israel – Wrap Up →

Ohada arbitration reform - publication of the new Uniform Act on arbitration and the revised CCJA Arbitration Rules - Lexology

Google International ADR News - Wed, 2017-12-27 07:36

Ohada arbitration reform - publication of the new Uniform Act on arbitration and the revised CCJA Arbitration Rules
Lexology
These new texts aim at strengthening and promoting alternative dispute resolution mechanisms in the OHADA area. The arbitration reform aims to promote arbitration within the OHADA area, offering expedient, effective, and transparent arbitral ...

India's Economic Reforms Have Expanded, But What About Its Legal System? - Outlook India

Google International ADR News - Wed, 2017-12-27 06:37

Outlook India

India's Economic Reforms Have Expanded, But What About Its Legal System?
Outlook India
Another development which could help with this is through the establishment of an Indian council of international arbitration centre through a bill passed by the cabinet last week. Related to this is a scheduled amendment of the Indian Arbitration Act ...

and more »

STUDENT PROFILE: Studying at UCLan's Lancashire Law School - Asian Image

Google International ADR News - Wed, 2017-12-27 05:48

Asian Image

STUDENT PROFILE: Studying at UCLan's Lancashire Law School
Asian Image
Pursuing these extra-curricular activities has led me to represent my institution nationally in alternative dispute resolution competitions against other universities and even to witness the William Bramwell Moot Final held at the Supreme Court, which ...

Fabio Marino joins Polsinelli to Chair IP Litigation Practice Group - IPWatchdog.com

Google International ADR News - Wed, 2017-12-27 04:58

IPWatchdog.com

Fabio Marino joins Polsinelli to Chair IP Litigation Practice Group
IPWatchdog.com
He has represented clients in patent disputes in federal courts and before the United States International Trade Commission. Dyer has also litigated patent validity before the U.S. Patent and Trademark Office in inter partes review proceedings. Prior ...

The Key to Unlocking the Arbitrator Diversity Paradox?: Arbitrator Intelligence

Kluwer Arbitration Blog - Wed, 2017-12-27 03:34

Catherine A. Rogers

A strange paradox marks the debate about international arbitrator diversity.

Public consensus increasingly reflects a pervasive concern about the lack of diversity among international arbitrators. ArbitralWomen can claim much credit for focusing attention on the lack of gender diversity, as evidenced by now more than 2500 signatures on The Pledge. Meanwhile, many corporate users now insist that firms include diverse candidates on lists of proposed arbitrators.

Concern about the lack of diversity is also reflected in the results of a survey on diversity by Berwin Leighton Paisner (BLP). In that survey, 80% of respondents believe that tribunals contain too many white arbitrators, while 84% believe that they contain too many men, and 64% felt that there were too many arbitrators from Western Europe or North America.

The good news is that these efforts seem to have nudged arbitral institutions toward greater diversity in institutional appointments. In 2016, women constituted, on average, around 17% or institutionally appointed arbitrators, considerably up from 12% just a year earlier in 2015, and dramatically up from the mere 6% in 2012.

The bad news is that institutions account for only a fraction of all arbitrator appointments. And concerns about lack of diversity are not having a similar effect in the estimated 75% of cases in which parties appoint arbitrators. As Lucy Greenwood cautions, there is a “stark disconnect between the rate at which institutions appoint women and the willingness of the parties to do so.”

This lack of “willingness” is underscored in other findings from the BLP survey. While 84% responded that tribunals had too many men, only 50% of respondents thought that it was desirable to have gender balance on arbitral tribunals, and 41% thought that “it makes no difference.” Responses on ethnicity and national background followed a similar pattern. 80% and 64%, respectively, said too many arbitrators were white or from Western Europe and North America, but only 54% responded that ethnic balance on a tribunal was desirable, with 31% saying that “it makes no difference.”

These responses reveal an apparent contradiction. On the one hand, they demonstrate widespread concern about the lack of diversity. On the other hand, they suggest an apparent inability to translate those concerns into actual appointments in individual cases. This gap is captured not only in the BLP statistics cited above, but also in the comments of an anonymous commentator, who explained “when asked by a client to select an arbitrator, the desirability of promoting diversity is the last feature on anyone’s mind. ‘We are not being asked to make a statement’ he said, ‘we are asked to pick the best person for the job.’”1)Anonymous posting to [email protected] (9 February 2012, 03.27 CST), cited in Lucy Greenwood & Mark Backer, Getting a Better Balance on International Arbitration Tribunals, 28 Arbitration INTERNATIONAL 653, 661 at n. 42 (2012). jQuery("#footnote_plugin_tooltip_9269_1").tooltip({ tip: "#footnote_plugin_tooltip_text_9269_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Therein lies the diversity paradox.

The key to resolving this paradox is to close the gap between the altruism that animates abstract concerns about diversity, and the strategic pragmatism that dominates arbitrator selection in individual cases. To achieve a more representative pool of arbitrators, in other words, we should appeal not only to the “better angels of our nature,”2)The phrase “better angels of our nature” comes from a post-Civil War speech by U.S. President Abraham Lincoln: “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory will swell when again touched, as surely they will be, by the better angels of our nature.” jQuery("#footnote_plugin_tooltip_9269_2").tooltip({ tip: "#footnote_plugin_tooltip_text_9269_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); but also to the more Machiavellian instincts that inform our case-specific arbitrator appointments.

Our better angels do not have to be strangers to our inner Machiavellis—they meet in the many contexts in which we “do right by doing good.”3)David B. Wilkins, Doing Well By Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers, 41 HOUSTON L. REV. 1 (2004). jQuery("#footnote_plugin_tooltip_9269_3").tooltip({ tip: "#footnote_plugin_tooltip_text_9269_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); With respect to diversity, for example, a robust and growing body of literature demonstrates that group decisionmaking can be markedly improved when decisional bodies have a diverse composition.4)David Rock & Heidi Grant, Why Diverse Teams Are Smarter, Harvard Business Review, November 4, 2016. jQuery("#footnote_plugin_tooltip_9269_4").tooltip({ tip: "#footnote_plugin_tooltip_text_9269_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Other studies have long confirmed, not surprisingly, that representativeness of judges improves perceived legitimacy of adjudicatory apparatus.5)See, e.g., Tom R. Tyler, Governing Amid Diversity: The Effect of Fair Decisionmaking Procedures on the Legitimacy of Government, 28 LAW & SOC’Y REV. 809, 818 (1994). jQuery("#footnote_plugin_tooltip_9269_5").tooltip({ tip: "#footnote_plugin_tooltip_text_9269_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); These studies suggest we would all benefit from greater diversity among arbitrators.

These studies have limited impact on actual behavior, however, because they measure the benefits of diversity in the abstract. Arbitrator selection, by contrast, is hyper-individualized and highly personal—both in the process and substance of assessing potential arbitrators. So, to unlock the diversity paradox, let’s look more closely at parties’ actual practices and priorities when they are selecting individual arbitrators.

If not diversity, what are parties looking for when they appoint arbitral tribunals? Going back to the BLP survey, 93% of respondents identified “expertise” and 91% identified “efficiency” as the most important features in appointing arbitrators. In the words of our anonymous commentator cited above, they are looking for “the best person for the job.”

As we all know, this information is generally not available on arbitrators’ CVs. Given the confidential nature of arbitration, the traditional (and still only) way to collect this information is through personal phone calls with individuals who have appeared before a potential arbitrator or, better yet, sat as a co-arbitrator with that person.

For those concerned about diversity,6)This is the first in a series of five Kluwer blog posts about Arbitrator Intelligence and the market for arbitrator services. jQuery("#footnote_plugin_tooltip_9269_6").tooltip({ tip: "#footnote_plugin_tooltip_text_9269_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); there are two main problems with this approach.

The first problem with arbitrator research based only on person-to-person inquiries is that it creates an information bottleneck. The limited number of individuals who can provide such information stifles the ability of newer and more diverse arbitrators to develop international reputations that the BLP statistics tell us are key to getting appointments.

To illustrate, let’s take a hypothetical.

Imagine a young Brazilian woman has been appointed by arbitral institutions in three sizable and complex arbitrations. And she was simply AWESOME. The parties were wowed. Her co-arbitrators were impressed. And the institutions were delighted. How many attorneys worldwide now know about her exceptional abilities? Maybe 20? 30? 40 tops? And what are the chances that one of those 40 people will receive a phone call about her future appointment? To borrow from the philosophical question about a tree silently falling in the woods: What happens if an arbitrator has a fantastic reputation, but no one knows about it?

The second problem with ad hoc person-to-person research is that such research largely confines assessment of potential arbitrators to subjective evaluation by a limited number of individuals. This research technique functions more as a telephonic lottery than systematic evaluation. Workplace research in the United States suggests that cognitive biases—those implicit biases we all have but are often unaware of—most easily translate into employment discrimination when hiring is premised on subjective evaluations and processes that do not involve systematic evaluation.

Arbitrator Intelligence seeks to promote diversity both by breaking the information bottleneck, and by providing an alternative to the highly subjective, ad hoc nature of arbitrator assessments.

The means to these ends is our Arbitrator Intelligence Questionnaire, or AIQ. If parties and counsel complete an AIQ at the end of each arbitration, Arbitrator intelligence will compile the collected about arbitrators, analyze it, and compile it into AI Reports on individual arbitrators. These reports will then be made available (for a fee) through our partner, Wolters Kluwer.

The content of the AIQ was developed to replicate the same kinds of information currently sought, and available only, through personal phone calls. Unlike phone calls, however, the AIQ seeks to disaggregate the abstract qualities of “expertise” and “efficiency” into objective, measurable data points. For example, to paraphrase a few questions from the AIQ: Did the arbitrators grant document production? Did they ask questions that demonstrated familiarity with the record? Based on data collected through the AIQ, Arbitrator Intelligence will also be able to determine the overall duration of arbitrations and time to issue the award, and numerous other valuable objective data.

Can the Arbitrator Intelligence, through data from the AIQ, promote diversity in international arbitration? We are optimistic for two reasons.

First, we hope to tap into arbitration specialists’ self-interest (not, or not only, their commitment to improving arbitrator diversity). Looking again to the BLP survey, there is reason to be optimistic. A staggering 92% of respondents indicated that they would welcome more information about new and less well-known candidates whom they could appoint. To generate this information, we need parties and counsel (and third-party funders) to complete AIQs. Lots of them! This may seem like a big ask for busy lawyers, but again looking to the BLP survey, 82% of respondents indicated an interest in providing feedback about arbitrators.

Second, by increasing information and reducing subjectivity in arbitrator assessment and selection, Arbitrator Intelligence undertakes to promote a more robust meritocracy. With more information, newer arbitrators can be more fairly evaluated based on their actual performance and more effectively compared to other arbitrators based on objective criteria. They can also develop reputations for excellence and efficiency that are independent of personal vouching through ad hoc phone calls that currently impedes their progress.

AI’s ability to succeed, of course, depends on parties and counsel submitting AIQs at the end of each arbitration. So, as the 2018 New Year begins, consider taking the few minutes necessary to complete AIQs at the end of each case. Join the several law firms that have agreed to provide retrospective AIQs on cases completed in the past few years. Sign the Arbitrator Intelligence Pact, promising to support our mission of promoting transparency, accountability and diversity.

In other words, in 2018, do your part to solve the diversity paradox—both by acting both in your (and your clients’) own self-interests and by answering to the better angels of your nature.

References   [ + ]

1. ↑ Anonymous posting to [email protected] (9 February 2012, 03.27 CST), cited in Lucy Greenwood & Mark Backer, Getting a Better Balance on International Arbitration Tribunals, 28 Arbitration INTERNATIONAL 653, 661 at n. 42 (2012). 2. ↑ The phrase “better angels of our nature” comes from a post-Civil War speech by U.S. President Abraham Lincoln: “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory will swell when again touched, as surely they will be, by the better angels of our nature.” 3. ↑ David B. Wilkins, Doing Well By Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers, 41 HOUSTON L. REV. 1 (2004). 4. ↑ David Rock & Heidi Grant, Why Diverse Teams Are Smarter, Harvard Business Review, November 4, 2016. 5. ↑ See, e.g., Tom R. Tyler, Governing Amid Diversity: The Effect of Fair Decisionmaking Procedures on the Legitimacy of Government, 28 LAW & SOC’Y REV. 809, 818 (1994). 6. ↑ This is the first in a series of five Kluwer blog posts about Arbitrator Intelligence and the market for arbitrator services. function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post The Key to Unlocking the Arbitrator Diversity Paradox?: Arbitrator Intelligence appeared first on Kluwer Arbitration Blog.

Foundation embarks on sensitisation of Nigerians on civic, moral education - SundiataPost (press release) (blog)

Google International ADR News - Tue, 2017-12-26 22:32

Foundation embarks on sensitisation of Nigerians on civic, moral education
SundiataPost (press release) (blog)
Onitsha (Anambra) – A foundation, Ethics and Moral, Social Justice Trust International, in collaboration with the United Nations Charter, has started the enlightenment of Nigerians on moral and civic rights. Dr Ugochuma Ibeakanma, President of the ...

Stone Soup Assessment: A Tale of Five ADR Courses, by Andrea Schneider, Bob Ackerman, Becky Jacobs, Doug Yarn, and Derrick Howard

ADR Prof Blog - Tue, 2017-12-26 20:28
This post describes five different approaches to using Stone Soup in ADR courses.  It reflects the incredible flexibility of this project and the creativity of faculty in tailoring Stone Soup assignments to fit their goals and circumstances.  Even when the assignments don’t work as planned, we can learn valuable lessons from these experiences. Andrea Schneider … Continue reading Stone Soup Assessment: A Tale of Five ADR Courses, by Andrea Schneider, Bob Ackerman, Becky Jacobs, Doug Yarn, and Derrick Howard →

When 2018 comes, let us thank God we survived - The News

Google International ADR News - Tue, 2017-12-26 12:50

The News

When 2018 comes, let us thank God we survived
The News
Tens of millions of Nigerians are in dire need. They do not know where the next meal will come from. They are not lazy, but there are no jobs. So when two industrial giants in a largely deindustrialized country take on each other in a fratricidal war ...

and more »

Group distributes Igbo, Hausa, Yoruba translated constitution to Nigerians - Daily Post Nigeria

Google International ADR News - Tue, 2017-12-26 11:33

Daily Post Nigeria

Group distributes Igbo, Hausa, Yoruba translated constitution to Nigerians
Daily Post Nigeria
“The body intends to initiate this new academic perspective and as well maintain social justice and physical equilibrium through the provision of alternative dispute resolution mechanism and free legal services,” he said. Ibeakanma, a United Nations ...

DR Faculty Seminar in Israel–The Israeli Supreme Court

ADR Prof Blog - Tue, 2017-12-26 09:18
During our last day in Israel we visited the Israeli Supreme Court. The building was built in 1992, and, as with all national institutions in Israel, it is located in West Jerusalem. The building was intended to combine both old and new and indoors and outdoors. This means there is Jerusalem stone throughout the building, … Continue reading DR Faculty Seminar in Israel–The Israeli Supreme Court →

The Quest for Uniformity in Ethical Standards for Party Representatives in International Arbitration

Kluwer Arbitration Blog - Mon, 2017-12-25 20:45

Daniel Waldek

Herbert Smith Freehills

The lack of consensus on ethical standards of conduct for counsel in international arbitration has given rise to two enduring problems. First, lawyers may find it hard to know how they should act where the professional rules of their home jurisdiction differ from, or conflict with, those at the seat of arbitration. Second, parties themselves may be unfairly disadvantaged where their counsel is subject to more restrictive ethical obligations than counsel for the other side.

A common example of the ethical challenges faced by counsel in practice is witness preparation. In the United Kingdom, the solicitors’ code of conduct prohibits lawyers from preparing their witnesses for testimony. This restriction is also imposed upon lawyers from many other common law jurisdictions. By contrast, lawyers in the United States are allowed, and indeed expected, to do so. In an international arbitration, a prudent U.S. counsel will thus proceed as usual and prepare his witnesses for testimony; the U.K. lawyer, on the other hand, could be disbarred for the same conduct. In this case, the U.K. lawyer’s client could be disadvantaged for no other reason than that, under the professional rules of his home jurisdiction, their counsel is more restricted when it comes to their dealings with witnesses.

This is clearly an undesirable state of affairs. It would instead be preferable to level the playing field of ethical obligations in international arbitration without offending local codes of conduct. Precisely how we should do this remains the challenge to the question.

A Global Arbitration Ethics Council

One potential solution that has been put forward by the Swiss Arbitration Association (“ASA”) is to create a transnational body – the Global Arbitration Ethics Council – with its own set of core ethical principles. The council would comprise arbitration practitioners from the major international arbitration associations and institutions. Its primary responsibility would be to resolve all claims of ethical misconduct in international arbitration, taking into account the cultural, geographical and other idiosyncrasies of the case. A complaint brought before the council would be entirely separate from the main arbitration proceeding.

Vesting the regulatory function in a single, transnational body would also remove the risk of fragmentation and inconsistency. Also, if the major arbitration institutions and associations were to endorse the council, the council could have access to a far broader range of sanctions than is currently available to tribunals.

However, the fundamental flaw in this proposal is that it is overly idealistic to suggest that the major international arbitration institutions and associations would be able to suddenly reach a consensus as to the “core principles” of ethical conduct in international arbitration. As appealing as this proposal might appear, it expects too much of the major international arbitration institutions and associations as things currently stand.

Other unanswered questions involve the council’s jurisdiction and the extent of the council’s disciplinary powers. Proponents of the idea have suggested that all that is needed would be for the major arbitration institutions to require lawyers participating in arbitrations under their rules to be subject to the council’s jurisdiction. But how far would this jurisdiction reach? Would the council have the power to sanction lawyers for conduct that is in breach of the council’s core principles, even though such conduct is permitted under the counsel’s local bar rules? And would the council’s powers be limited to admonishment or would they include the power to exclude counsel from future arbitrations? Clearly there are many important issues that would need to be addressed before a transnational body such as the Global Arbitration Ethics Council can be established and, perhaps more importantly, obtain global recognition.

Binding Codes of Ethical Conduct

Another potential solution would be for the major arbitration institutions to individually adopt binding codes of ethical conduct which would automatically be incorporated into their rules of arbitration. One such example is the LCIA’s General Guidelines for the Parties Legal Representatives (2014). The LCIA Guidelines are binding on any counsel who appears in an arbitration administered under the LCIA Rules. They provide guidance in areas such as ex parte communications with arbitrators, submissions to the tribunal, disclosure and the preparation of evidence. In the event of a breach, the LCIA Guidelines empower the tribunal to reprimand the relevant counsel and take any other measure to fulfil the tribunal’s general duties under the LCIA Rules.

The benefit of such an approach is that if key international arbitration institutions were to adopt similar binding codes of conduct, more and more parties to institutional arbitration would be forced to adopt them and thus become familiar with them. This, in turn, would lead to greater uniformity in ethical standards of conduct in international arbitration.

However, the key problem with this proposal is that a mandatory, binding code of conduct may not cohere well with the inherently flexible nature of arbitration. Moreover, compelling party representatives to comply with a binding code of conduct seems to overlook the fact that standards of ethical conduct may vary across regions and jurisdictions. This does not solve the immediate problem of bridging the ethical gap. While the end goal would be the creation of a universal and uniform code of ethical conduct, we should not, in our attempts to move towards that goal, think that standards of ethical conduct are independent of culture and context.

The ability of a tribunal to use adverse costs orders as a sanction for unreasonable conduct by counsel can be a powerful tool to regulate procedural conduct – although such orders inherently penalise the end user, not their lawyer. Therefore, another problem is whether a tribunal, which has power over the parties to an arbitration, should also have the power to adjudicate on the conduct of the parties’ representatives. Critics of this approach argue that decisions regarding the ethical conduct of counsel are alien to the arbitral process and should remain separate from it. On this view, the responsibility of the tribunal is simply to resolve the arbitration proceedings in an orderly manner; decisions about whether a lawyer has acted unethically should be left to the local bar association. Indeed, one concern is that requiring tribunals to determine whether counsel have acted unethically may compromise the impartiality and independence of the tribunal when it comes to deciding on the merits of the case.

Non-Binding Codes of Ethical Conduct

A third potential solution, which has drawn recent support from former Singaporean attorney-general V.K. Rajah, would be for international arbitration institutions to adopt non-binding ethical codes of conduct. The IBA Guidelines on Party Representation in International Arbitration (2013) are one such example. The IBA Guidelines cover similar areas to the LCIA Guidelines, though they provide for broader sanctions including adverse costs orders. The key difference between the two is their legal force. Unlike the LCIA Guidelines, the IBA Guidelines only apply where the parties or tribunal agree that they shall apply, and subject to any amendments that they might make.

The main benefit of an approach based on non-binding instruments is that it would facilitate greater uniformity in ethical standards while preserving the parties’ freedom to adopt and amend them. However, this approach does have its limitations. First, the IBA Guidelines were intended to provide guidance in areas where party representatives commonly encounter some degree of ethical uncertainty. They do not, however, cover all aspects of party representative conduct in international arbitration. Second, there is still the risk of conflicting ethical obligations where the institution’s code of conduct conflicts with or remains silent on areas covered by applicable national bar rules. Third, the sanctions available to a tribunal under the IBA Guidelines are directed largely at the parties rather than their counsel. There therefore remains some doubt as to the efficacy of such guidelines in actually shaping the conduct of party representatives. Finally, as the ASA has pointed out, there is the concern that the IBA Guidelines draw primarily on common law practices, thereby limiting its applicability in civil law jurisdictions. The extent to which such guidelines can bridge the common and civil law divide, remains to be seen.

The Future

Clearly, the IBA Guidelines are not perfect. However, they do provide a blueprint for a practical, short-term approach, which, in the long run, will help bring party representatives closer to a common understanding of what should and should not be done. Admittedly, there will be some practices, such as witness preparation, on which a consensus will not easily be reached. That being said, non-binding codes of conduct should go so way to helping establish a common ground in many other areas of practice in international arbitration. The immediate challenge lies in garnering support for non-binding codes of conduct among major international arbitration institutions like the SIAC. In the longer term, this approach could be improved by making the codes of conduct more comprehensive, ensuring that they draw on both common law and civil law practices, and transferring the regulatory function from tribunals to the arbitration institutions themselves. Though non-binding codes of ethical conduct may not create international consensus overnight, they provide a meaningful way forward in the quest for uniformity in ethical standards for party representatives in international arbitration.

*With thanks to Tim Tabalujan for his assistance.

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