Mediation, at its most basic, is the process of seeking the settlement of a dispute through dialogue and the eventual agreement of the parties; merely facilitated by a neutral third party, the meditator. Mediation rules and procedures can and should be much lighter and less prescriptive than rules of arbitration; and mediation should be substantially quicker and less expensive than arbitration. This article will consider whether and if so to what extent the rules of mediation of BCDR-AAA (‘BCDR-AAA’ or ‘the Chamber’) provide a flexible framework and a light touch for the efficient, timely and cost-effective resolution of commercial disputes; drawing comparisons with the 2011 BCDR-AAA mediation rules, which they replace, and with the mediation rules of other leading institutions. ‘You can’t shake hands with a clenched fist.’ – Indira Gandhi
{"title":"The BCDR-AAA Mediation Rules 2019","authors":"Adrian Winstanley","doi":"10.54648/bcdr2019004","DOIUrl":"https://doi.org/10.54648/bcdr2019004","url":null,"abstract":"Mediation, at its most basic, is the process of seeking the settlement of a dispute through dialogue and the eventual agreement of the parties; merely facilitated by a neutral third party, the meditator.\u0000Mediation rules and procedures can and should be much lighter and less prescriptive than rules of arbitration; and mediation should be substantially quicker and less expensive than arbitration.\u0000This article will consider whether and if so to what extent the rules of mediation of BCDR-AAA (‘BCDR-AAA’ or ‘the Chamber’) provide a flexible framework and a light touch for the efficient, timely and cost-effective resolution of commercial disputes; drawing comparisons with the 2011 BCDR-AAA mediation rules, which they replace, and with the mediation rules of other leading institutions.\u0000‘You can’t shake hands with a clenched fist.’ – Indira Gandhi","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"80 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":"116368404","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 United Nations Convention on International Settlement Agreements Resulting from Mediation (also known as the ‘Singapore Convention on Mediation’) is a multilateral treaty on the cross-border enforcement of mediated settlement agreements. The Convention entered into force on 12 September 2020. Not only has the conclusion of the Singapore Convention on Mediation promoted wider awareness and the legitimacy of mediation, the Convention also offers certainty in the outcomes arising from a decision to utilize mediation to resolve a cross-border dispute. International support for the Singapore Convention, in terms of signatories and ratifications, will determine the reach of the cross-border enforcement framework. The implementation of the Singapore Convention, in domestic legislation and by enforcing authorities, will impact how it is further understood and applied.With a view to promoting an informed understanding of the Singapore Convention and its provisions, this article will explore how the Singapore Convention was prepared so that it respects the practice and flexibilities of mediation, and so that potential Parties to the Singapore Convention can take guidance from the Convention text. In particular, this article will explore the Singapore Convention’s provisions on general principles, scope of application, form requirements for settlement agreements, grounds for refusing to grant relief, and permissible reservations.
{"title":"The Singapore Convention:A Milestone for Mediation","authors":"Natalie Y.Morris-Sharma","doi":"10.54648/bcdr2019003","DOIUrl":"https://doi.org/10.54648/bcdr2019003","url":null,"abstract":"The United Nations Convention on International Settlement Agreements Resulting from Mediation (also known as the ‘Singapore Convention on Mediation’) is a multilateral treaty on the cross-border enforcement of mediated settlement agreements. The Convention entered into force on 12 September 2020. Not only has the conclusion of the Singapore Convention on Mediation promoted wider awareness and the legitimacy of mediation, the Convention also offers certainty in the outcomes arising from a decision to utilize mediation to resolve a cross-border dispute. International support for the Singapore Convention, in terms of signatories and ratifications, will determine the reach of the cross-border enforcement framework. The implementation of the Singapore Convention, in domestic legislation and by enforcing authorities, will impact how it is further understood and applied.With a view to promoting an informed understanding of the Singapore Convention and its provisions, this article will explore how the Singapore Convention was prepared so that it respects the practice and flexibilities of mediation, and so that potential Parties to the Singapore Convention can take guidance from the Convention text. In particular, this article will explore the Singapore Convention’s provisions on general principles, scope of application, form requirements for settlement agreements, grounds for refusing to grant relief, and permissible reservations.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"17 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":"129679754","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 possibility that arbitrators entrusted with resolving investment disputes may have so-called ‘issue-conflicts’ has provoked some angry criticism, contentious debate, awardannulments, and fledgling prohibitions. The discussion and current thinking appear to overlook the consequences stemming from adopting general prohibitions which are not justified in many cases. This essay calls for calm, sober, analysis to frame the matter objectively and to ensure that the measures adopted are not overly and unnecessarily prohibitive: a net cast too wide.
{"title":"Issue Conflicts: A Net Cast Too Wide?","authors":"Francisco González de Cossío","doi":"10.54648/bcdr2021007","DOIUrl":"https://doi.org/10.54648/bcdr2021007","url":null,"abstract":"The possibility that arbitrators entrusted with resolving investment disputes may have so-called ‘issue-conflicts’ has provoked some angry criticism, contentious debate, awardannulments, and fledgling prohibitions. The discussion and current thinking appear to overlook the consequences stemming from adopting general prohibitions which are not justified in many cases. This essay calls for calm, sober, analysis to frame the matter objectively and to ensure that the measures adopted are not overly and unnecessarily prohibitive: a net cast too wide.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125723447","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}
Judge Lagergren, in 1963, famously wrote that “corruption is an international evil.”While this recognition was a welcome acknowledgement of the existence of corruption in international arbitration, we assess in this article whether or not his edict has been followed and implemented.The issues of corruption and conflicts of interest, the theme of this special issue, interact often. Conflicts of interest can be a gateway to corruption and will, sometimes, be a “red flag.” The complexity of issues associated with corruption for an international arbitrator must not be underestimated.We recognize, initially, the more salient efforts in the global fight against corruption, existing enforcement obstacles, and their interaction with international arbitration.We then review the complex undertaking of finding an adequate definition of corruption.We then consider when conflicts of interest become markers of corruption.We also examine issues international arbitrators and parties are confronted with when suspicions of corruption surface in an arbitration, including the standard of proof and the stage at which such issues should be addressed by the Tribunal. Finally, we look at the recent proposal to create an International Anti-Corruption Court. This article, in conclusion, is as much a positive assessment of the work undertaken recently as well as a call for immediate action by arbitrators and counsel to detect and deal with corruption in international arbitration.
{"title":"Dealing with Corruption in International Arbitration: The Interactions of Conflicts of Interest and Corruption","authors":"Yves Fortier, Laurence Marquis","doi":"10.54648/bcdr2021012","DOIUrl":"https://doi.org/10.54648/bcdr2021012","url":null,"abstract":"Judge Lagergren, in 1963, famously wrote that “corruption is an international evil.”While this recognition was a welcome acknowledgement of the existence of corruption in international arbitration, we assess in this article whether or not his edict has been followed and implemented.The issues of corruption and conflicts of interest, the theme of this special issue, interact often. Conflicts of interest can be a gateway to corruption and will, sometimes, be a “red flag.”\u0000The complexity of issues associated with corruption for an international arbitrator must not be underestimated.We recognize, initially, the more salient efforts in the global fight against corruption, existing enforcement obstacles, and their interaction with international arbitration.We then review the complex undertaking of finding an adequate definition of corruption.We then consider when conflicts of interest become markers of corruption.We also examine issues international arbitrators and parties are confronted with when suspicions of corruption surface in an arbitration, including the standard of proof and the stage at which such issues should be addressed by the Tribunal. Finally, we look at the recent proposal to create an International Anti-Corruption Court. This article, in conclusion, is as much a positive assessment of the work undertaken recently as well as a call for immediate action by arbitrators and counsel to detect and deal with corruption in international arbitration.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"439 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132751464","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}
As one of the leading arbitration institutions globally, the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”) has seen a slight increase in the number of challenges against arbitrators over the past decade.This article outlines the procedure and the legal standard applied in challenges at the SCC and provides a brief overview of SCC Board decisions on challenges during the period 2010–2019. In addition, summaries of decisions on challenges made during 2019 are provided. Based on the decisions made during this period, conclusions are drawn regarding the nature of the challenges and the principles applied by the SCC Board in its decisions.
{"title":"SCC Decisions on Challenges","authors":"A. Magnusson, Christoffer Coello Hedberg","doi":"10.54648/bcdr2021010","DOIUrl":"https://doi.org/10.54648/bcdr2021010","url":null,"abstract":"As one of the leading arbitration institutions globally, the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”) has seen a slight increase in the number of challenges against arbitrators over the past decade.This article outlines the procedure and the legal standard applied in challenges at the SCC and provides a brief overview of SCC Board decisions on challenges during the period 2010–2019. In addition, summaries of decisions on challenges made during 2019 are provided. Based on the decisions made during this period, conclusions are drawn regarding the nature of the challenges and the principles applied by the SCC Board in its decisions.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"334 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126552158","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}
Doak Bishop, Lauren Friedman, E. Bruera, Sara Mcbrearty
The decision whether to challenge an arbitrator is among the most sensitive decisions that counsel can make in the course of an arbitration.The consequences of doing so, or not doing so, can be serious for both parties and counsel.To study the success rates and consequences of disqualification challenges, the authors gathered data on such decisions from across four arbitral fora: the International Centre for Settlement of Investment Disputes (“ICSID”); the Permanent Court of Arbitration (“PCA”); the United Nations Commission on International Trade Law (“UNCITRAL”); and the London Court of International Arbitration (“LCIA”).We find that while successful challenges against arbitrators are infrequent across all of these fora, there are nonetheless significant differences in success rates across the fora.We also find that while disqualification challenges are generally decided promptly, there are longer delays in ICSID proceedings.
{"title":"Time after Time: Using Data to Inform the Decision to Disqualify an Arbitrator","authors":"Doak Bishop, Lauren Friedman, E. Bruera, Sara Mcbrearty","doi":"10.54648/bcdr2021009","DOIUrl":"https://doi.org/10.54648/bcdr2021009","url":null,"abstract":"The decision whether to challenge an arbitrator is among the most sensitive decisions that counsel can make in the course of an arbitration.The consequences of doing so, or not doing so, can be serious for both parties and counsel.To study the success rates and consequences of disqualification challenges, the authors gathered data on such decisions from across four arbitral fora: the International Centre for Settlement of Investment Disputes (“ICSID”); the Permanent Court of Arbitration (“PCA”); the United Nations Commission on International Trade Law (“UNCITRAL”); and the London Court of International Arbitration (“LCIA”).We find that while successful challenges against arbitrators are infrequent across all of these fora, there are nonetheless significant differences in success rates across the fora.We also find that while disqualification challenges are generally decided promptly, there are longer delays in ICSID proceedings.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134097411","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}
Challenges of arbitrators are among the most important events in international arbitration proceedings. Given their importance, they are a major target of the call for transparency in international arbitration.This article examines recent initiatives undertaken by a number of arbitral institutions to provide reasoned decisions to parties and arbitrators and to publish them for the benefit of the wider arbitration community. The author then focuses on the recent evolution in the rules and practice of the ICC International Court of Arbitration, which have evolved from a position where the communication of reasons underlying challenge decisions was considered contrary to the institution’s mandatory rules to a position where reasons are routinely provided on request.The author concludes that, whilst providing reasoned decisions is essential to foster their legitimacy and the trust that parties and arbitrators place in the process, only publication can achieve further goals, such as developing a jurisprudence on arbitrators’ independence and impartiality, enhancing the predictability of decisions and protecting the validity and enforceability of arbitral awards.To achieve these goals, publication should not be limited to succinct summaries, but should include a full account of the factual and legal background of the challenge.
{"title":"The Communication and Publication of Reasons for Decisions on Arbitrator Challenges: Increasing the Transparency of Standards and the Predictability of Decisions","authors":"A. Carlevaris","doi":"10.54648/bcdr2021004","DOIUrl":"https://doi.org/10.54648/bcdr2021004","url":null,"abstract":"Challenges of arbitrators are among the most important events in international arbitration proceedings. Given their importance, they are a major target of the call for transparency in international arbitration.This article examines recent initiatives undertaken by a number of arbitral institutions to provide reasoned decisions to parties and arbitrators and to publish them for the benefit of the wider arbitration community. The author then focuses on the recent evolution in the rules and practice of the ICC International Court of Arbitration, which have evolved from a position where the communication of reasons underlying challenge decisions was considered contrary to the institution’s mandatory rules to a position where reasons are routinely provided on request.The author concludes that, whilst providing reasoned decisions is essential to foster their legitimacy and the trust that parties and arbitrators place in the process, only publication can achieve further goals, such as developing a jurisprudence on arbitrators’ independence and impartiality, enhancing the predictability of decisions and protecting the validity and enforceability of arbitral awards.To achieve these goals, publication should not be limited to succinct summaries, but should include a full account of the factual and legal background of the challenge.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"105 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122673346","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 aims at exploring the provisions on conflicts of interests of the Code of Best Practices in Arbitration published by the Spanish Arbitration Club in 2019. The Code was drafted over a two-year period and makes recommendations for arbitration practitioners, drawing on the standards and recommendations of the principal arbitral institutions, and the principal guidelines published on the subject, whilst advocating for greater transparency in international arbitration.The present article compares and analyses how the main provisions on conflicts of interest of the Code of Best Practices diverge from or resemble existing standards and guidelines on the subject.
{"title":"Conflicts of Interest in the Code of Best Practices in Arbitration Published by the Spanish Arbitration Club","authors":"D. Arias, Sofia Jalles","doi":"10.54648/bcdr2021005","DOIUrl":"https://doi.org/10.54648/bcdr2021005","url":null,"abstract":"This article aims at exploring the provisions on conflicts of interests of the Code of Best Practices in Arbitration published by the Spanish Arbitration Club in 2019. The Code was drafted over a two-year period and makes recommendations for arbitration practitioners, drawing on the standards and recommendations of the principal arbitral institutions, and the principal guidelines published on the subject, whilst advocating for greater transparency in international arbitration.The present article compares and analyses how the main provisions on conflicts of interest of the Code of Best Practices diverge from or resemble existing standards and guidelines on the subject.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124061330","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}
Jacomijn Van Haersolte-Van Hof, Francis Greenway, Anna Cho
The LCIA has robust procedures for appointing arbitrators and determining challenges. The LCIA’s database of published decisions provides valuable guidance in relation to standards of conduct by the arbitrators, and a greater understanding of the reasoning applied by the LCIA Court.The LCIA Court decisions show that challenges in LCIA cases are rare and are even more rarely successful.
{"title":"LCIA Approach to Challenges to Arbitrators","authors":"Jacomijn Van Haersolte-Van Hof, Francis Greenway, Anna Cho","doi":"10.54648/bcdr2021011","DOIUrl":"https://doi.org/10.54648/bcdr2021011","url":null,"abstract":"The LCIA has robust procedures for appointing arbitrators and determining challenges. The LCIA’s database of published decisions provides valuable guidance in relation to standards of conduct by the arbitrators, and a greater understanding of the reasoning applied by the LCIA Court.The LCIA Court decisions show that challenges in LCIA cases are rare and are even more rarely successful.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132896283","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}
Neutrality of the arbitrator is one of the fundamental features of arbitration. It is not a universal but a relative notion, inevitably not identical in all parts of the world, at any given moment. What should be avoided is a different application of this concept by the same individual, depending on the role played: very strict when he/she acts as counsel (and also different if acting for the Claimant or for the Respondent, as well as if appointing the co-arbitrator or the Chair), more tolerant and flexible when he/she is in the role of arbitrator. A lack of coherence, depending on which side of the barricade the same individual may be, may affect users’ trust in and reliance on arbitration. Arbitral institutions play a fundamental role in fighting, with realism, this attitude, being aware that neutrality of arbitrators is a principle that does not tolerate any compromise.
{"title":"Neutrality, Independence and Impartiality of Arbitrators: Uniformity of Definitions, Dissimilarity of Applications","authors":"S. Azzali","doi":"10.54648/bcdr2021006","DOIUrl":"https://doi.org/10.54648/bcdr2021006","url":null,"abstract":"Neutrality of the arbitrator is one of the fundamental features of arbitration. It is not a universal but a relative notion, inevitably not identical in all parts of the world, at any given moment.\u0000What should be avoided is a different application of this concept by the same individual, depending on the role played: very strict when he/she acts as counsel (and also different if acting for the Claimant or for the Respondent, as well as if appointing the co-arbitrator or the Chair), more tolerant and flexible when he/she is in the role of arbitrator. A lack of coherence, depending on which side of the barricade the same individual may be, may affect users’ trust in and reliance on arbitration.\u0000Arbitral institutions play a fundamental role in fighting, with realism, this attitude, being aware that neutrality of arbitrators is a principle that does not tolerate any compromise.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114081844","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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