Over the coming months and years, the COVID-19 pandemic will likely continue to have dramatic impacts on all aspects of life and business, including disputes and their resolution. In the face of economic uncertainty, growing legal backlogs and an increasing number of commercial disputes, determining which methods of dispute resolution are best suited to succeed in this ‘new normal’ will be essential for the survival of companies and organizations across the world. This article explores the particular benefits of mediation to resolve commercial disputes in the time of COVID-19, including its relative speed, cost-efficiency, flexibility, business-focus and demonstrated adaptability in rapidly-changing global circumstances.The authors also discuss the potential of mediation to improve dealmaking processes in times of crisis, and suggest measures to encourage the use and success of commercial mediation during the current pandemic and beyond.
{"title":"The Role of Mediation in Our ‘New Normal’","authors":"Hannah Tümpel, Amelia Redmond","doi":"10.54648/bcdr2019005","DOIUrl":"https://doi.org/10.54648/bcdr2019005","url":null,"abstract":"Over the coming months and years, the COVID-19 pandemic will likely continue to have dramatic impacts on all aspects of life and business, including disputes and their resolution. In the face of economic uncertainty, growing legal backlogs and an increasing number of commercial disputes, determining which methods of dispute resolution are best suited to succeed in this ‘new normal’ will be essential for the survival of companies and organizations across the world. This article explores the particular benefits of mediation to resolve commercial disputes in the time of COVID-19, including its relative speed, cost-efficiency, flexibility, business-focus and demonstrated adaptability in rapidly-changing global circumstances.The authors also discuss the potential of mediation to improve dealmaking processes in times of crisis, and suggest measures to encourage the use and success of commercial mediation during the current pandemic and beyond.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123228936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The International Centre for Settlement of Investment Disputes (ICSID) has embarked on a comprehensive reform of its existing dispute settlement mechanism and also added a set of mediation rules to its service offerings. This article reviews the proposed amendments to the ICSID conciliation mechanism and ICSID’s proposed investment mediation framework. In relation to the proposed amendments to the ICSID conciliation mechanism, the article analyzes key differences and similarities between ICSID Convention arbitration and ICSID Convention conciliation, before providing an overview of the amendments proposed to the conciliation framework and offering some conclusions. Subsequently, the article reviews the background against which the ICSID Mediation Rules have been developed and sets out the key differences and similarities between ICSID’s existing conciliation process and the newly proposed mediation mechanism. The article then provides a comprehensive overview of the Mediation Rules before offering conclusions and a positive outlook for amicable investor-State Dispute Settlement.
{"title":"Amicable Investor-State Dispute Settlement at ICSID: Modernizing Conciliation and Introducing Mediation","authors":"Frauke Nitschke","doi":"10.54648/bcdr2019010","DOIUrl":"https://doi.org/10.54648/bcdr2019010","url":null,"abstract":"The International Centre for Settlement of Investment Disputes (ICSID) has embarked on a comprehensive reform of its existing dispute settlement mechanism and also added a set of mediation rules to its service offerings. This article reviews the proposed amendments to the ICSID conciliation mechanism and ICSID’s proposed investment mediation framework. In relation to the proposed amendments to the ICSID conciliation mechanism, the article analyzes key differences and similarities between ICSID Convention arbitration and ICSID Convention conciliation, before providing an overview of the amendments proposed to the conciliation framework and offering some conclusions. Subsequently, the article reviews the background against which the ICSID Mediation Rules have been developed and sets out the key differences and similarities between ICSID’s existing conciliation process and the newly proposed mediation mechanism. The article then provides a comprehensive overview of the Mediation Rules before offering conclusions and a positive outlook for amicable investor-State Dispute Settlement.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129828252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Investor-State disputes generally begin as a difference between a local business (the investment) and the ministry responsible for the sector in which that business operates. In many governments, the situation changes when the business owner asserts a claim under an investment treaty.The assertion of the international claim can bring the dispute within the competence, or the sphere of interest, of one or more ministries in addition to the one with sectoral responsibility.This article refers to this scenario as the multiple-ministry paradigm. The accompanying injection of new actors into government decision-making has a number of implications for the design of a successful investor-State mediation process, which are explored in this article.
{"title":"The Multiple-Ministry Paradigm in Investor-State Dispute Settlement","authors":"B. Legum","doi":"10.54648/bcdr2019011","DOIUrl":"https://doi.org/10.54648/bcdr2019011","url":null,"abstract":"Investor-State disputes generally begin as a difference between a local business (the investment) and the ministry responsible for the sector in which that business operates. In many governments, the situation changes when the business owner asserts a claim under an investment treaty.The assertion of the international claim can bring the dispute within the competence, or the sphere of interest, of one or more ministries in addition to the one with sectoral responsibility.This article refers to this scenario as the multiple-ministry paradigm. The accompanying injection of new actors into government decision-making has a number of implications for the design of a successful investor-State mediation process, which are explored in this article.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129688168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The UNCITRAL mediation framework consists of the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation, the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the Model Law on International Commercial Conciliation, 2002) and the Conciliation Rules.The UNCITRAL mediation framework will be supplemented by updated mediation rules as well as notes on mediation, which are currently on UNCITRAL’s agenda. This framework is the result of the typical inclusive and transparent UNCITRAL drafting process and will hopefully contribute to the strengthening of mediation worldwide and make it an attractive and flexible dispute resolution tool.
{"title":"The Making of the UNCITRAL Mediation Framework","authors":"Judith Knieper","doi":"10.54648/bcdr2019002","DOIUrl":"https://doi.org/10.54648/bcdr2019002","url":null,"abstract":"The UNCITRAL mediation framework consists of the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation, the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the Model Law on International Commercial Conciliation, 2002) and the Conciliation Rules.The UNCITRAL mediation framework will be supplemented by updated mediation rules as well as notes on mediation, which are currently on UNCITRAL’s agenda. This framework is the result of the typical inclusive and transparent UNCITRAL drafting process and will hopefully contribute to the strengthening of mediation worldwide and make it an attractive and flexible dispute resolution tool.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131309538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Family-owned businesses (FOBs) face unprecedented challenges in the wake of COVID-19. New revenue sources, workplace health and safety issues and an urgent need to drive both internal and customer-facing systems online all require quick and effective responses.This article explores how a skilled mediator can assist FOBs in reimagining themselves for the post COVID-19 environment. ‘There is no doubt that it is around the family and the home that all the greatest virtues … are created, strengthened and maintained.’ –Winston Churchill ‘Change or Die.’ – Alan Deutschman
{"title":"A Helpful Guest at Table:The Use of Mediation by Family-Owned Businesses","authors":"Mark E. Appel","doi":"10.54648/bcdr2019006","DOIUrl":"https://doi.org/10.54648/bcdr2019006","url":null,"abstract":"Family-owned businesses (FOBs) face unprecedented challenges in the wake of COVID-19. New revenue sources, workplace health and safety issues and an urgent need to drive both internal and customer-facing systems online all require quick and effective responses.This article explores how a skilled mediator can assist FOBs in reimagining themselves for the post COVID-19 environment.\u0000‘There is no doubt that it is around the family and the home that all the greatest virtues … are created, strengthened and maintained.’ –Winston Churchill\u0000‘Change or Die.’ – Alan Deutschman","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"62 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113959647","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Mediation can be a powerful tool in a cross-cultural negotiation as indicated by its increasing prominence in contracts, treaties, regulations, research, education and discussion around the world. Culturally rooted miscommunications can be ameliorated and agreements can be reached with thoughtful, respectful mediation.
{"title":"Cross-Cultural Considerations in Mediation","authors":"R. Naimark","doi":"10.54648/bcdr2019008","DOIUrl":"https://doi.org/10.54648/bcdr2019008","url":null,"abstract":"Mediation can be a powerful tool in a cross-cultural negotiation as indicated by its increasing prominence in contracts, treaties, regulations, research, education and discussion around the world. Culturally rooted miscommunications can be ameliorated and agreements can be reached with thoughtful, respectful mediation.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"23 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120814458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Report of Panel on “Alternative Tools for Effective Investment/Investor Protection” at 5th EFILA Annual Conference, January 30, 2020","authors":"","doi":"10.54648/bcdr2019014","DOIUrl":"https://doi.org/10.54648/bcdr2019014","url":null,"abstract":"","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"217 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132904445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Report of Panel:To What Extent Are Conciliation and Mediation Efficient in the Settlement of Investor-State Disputes? BCDR/SCC Joint Conference on Salient Issues in Investment Arbitration November 18, 2018","authors":"","doi":"10.54648/bcdr2019013","DOIUrl":"https://doi.org/10.54648/bcdr2019013","url":null,"abstract":"","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121512556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Given the criticism addressed towards international arbitration to settle investor-state disputes, it is necessary to explore alternatives.The most prominent one is mediation which presents many advantageous features centered around preserving and nurturing the relationship between the state and the investor. While all the conditions are met for the increased use of mediation, it remains marginal, mainly because of the very essence of investor-state disputes. A promising alternative is conflict-prevention which includes several tools intervening at different levels of the investor-state conflict continuum. Such tools include grievance management mechanisms and investment ombudsmen which incorporate mediation techniques in their operating procedures and have proven to be efficient. In the end, it is better to prevent than to cure and the most efficient way to prevent is to educate. ‘I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.’ – Maya Angelou
{"title":"Investor-State Disputes:What Works Beyond Arbitration?","authors":"Eloïse M.Obadia","doi":"10.54648/bcdr2019012","DOIUrl":"https://doi.org/10.54648/bcdr2019012","url":null,"abstract":"Given the criticism addressed towards international arbitration to settle investor-state disputes, it is necessary to explore alternatives.The most prominent one is mediation which presents many advantageous features centered around preserving and nurturing the relationship between the state and the investor. While all the conditions are met for the increased use of mediation, it remains marginal, mainly because of the very essence of investor-state disputes. A promising alternative is conflict-prevention which includes several tools intervening at different levels of the investor-state conflict continuum. Such tools include grievance management mechanisms and investment ombudsmen which incorporate mediation techniques in their operating procedures and have proven to be efficient. In the end, it is better to prevent than to cure and the most efficient way to prevent is to educate.\u0000‘I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.’ – Maya Angelou","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122541111","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores statutory coverage of amicable dispute resolution options in Egypt regulating private-private, public-private, and a number of sector specific disputes. Those efforts are an important step towards renewing the interest in amicable settlement in private-private disputes, and show a paradigm shift towards proactive settlement in public-private disputes. The author argues that these efforts are missing a clear framework and vision, especially in relation to the essence of mediation and its process as established by the growing body of good practices. For example, proper definitions, clarity on the different processes regarding each of the modalities, and an emphasis on fundamental guarantees, such as confidentiality and the neutral’s duties, are missing from most instruments.The author concludes by emphasizing the importance of crafting a new streamlined vision that studies the local needs and aligns with good practices.
{"title":"Amicable Dispute Resolution in Egypt: Booming Statutory Coverage with Unclear Vision on Mediation","authors":"F. Ibrahim","doi":"10.54648/bcdr2019009","DOIUrl":"https://doi.org/10.54648/bcdr2019009","url":null,"abstract":"This article explores statutory coverage of amicable dispute resolution options in Egypt regulating private-private, public-private, and a number of sector specific disputes. Those efforts are an important step towards renewing the interest in amicable settlement in private-private disputes, and show a paradigm shift towards proactive settlement in public-private disputes. The author argues that these efforts are missing a clear framework and vision, especially in relation to the essence of mediation and its process as established by the growing body of good practices. For example, proper definitions, clarity on the different processes regarding each of the modalities, and an emphasis on fundamental guarantees, such as confidentiality and the neutral’s duties, are missing from most instruments.The author concludes by emphasizing the importance of crafting a new streamlined vision that studies the local needs and aligns with good practices.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127372509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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