Arbitration

Ask An Expert: Laura Benedetto

Laura_Benedetto.jpgLaura Benedetto, Secretary General of the Florence Chamber of Commerce in Italy,  speaks about expanding the Florentine disputes landscape, international mediation and educating the legal and business community on the range of processes available.

What made you specialise in dispute resolution?

I’ve been serving as Secretary General at the Florence Chamber of Commerce since 2011. The Florence Chamber of Commerce has been promoting and investing in ADR tools since the 1970s, when almost nobody in Italy knew these processes.

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Posted by Natasha Mellersh in ADR, Arbitration, Ask An Expert, Education, Mediation

The London GPC – Time For Change

marlon-maya-44935.jpgLast week’s London event marked the grand finale of the GPC Series, which has taken place on six continents and 29 cities since April 2016, collecting groundbreaking data on the behaviour and perceptions of stakeholders in dispute resolution across the globe. Taking place in the historical Guildhall building, built upon centuries of ‘dispute resolution’ above the Roman amphitheatre – where conflict was perhaps resolved in a more brutal way than today.

The event began with an introduction by online dispute resolution advocate Lord Justice Briggs, who has consistently pushed for technological reforms in the courts of England and Wales, especially in regards to resolving disputes. In addition Dr Andrew Parmley, Lord Mayor of London (Mayor of the City of London), gave a moving speech on London’s rich multicultural history – stating that London will remain a global city and an international hub for the legal community undeterred by Brexit.

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Posted by Natasha Mellersh in Access To Justice, ADR, Arbitration, Dispute Management, Education, LOC Coverage, Mediation, Negotiation, Technology

Facilitating Settlement – The Changing Role Of The Arbitrator

pablo-garcia-saldana-94058One of the most valuable aspects of the GPC is the rich amount of data it accumulates. A recently published article in the Fordham International Law Journal analyses the data of the 2016 GPCs in terms of the parties’ interest in collaborative dispute resolution methods within adversarial proceedings. Klaus Peter Berger and J. Ole Jensen suggest the facilitation of settlement between the parties within arbitral proceedings as an important means of maintaining and increasing the attractiveness of international arbitration.

A long time coming

For more than 50 years, there has been a debate whether it is appropriate for international arbitrators to facilitate settlement. It has unfolded between those who believe in settlement facilitation as an efficient means to end the parties’ dispute and those who consider such activities incompatible with the arbitrator’s judicial role as a “private judge”.

Up to now, this discussion has remained deeply rooted in domestic conceptions of what an arbitrator’s role should and should not be. In their article, the authors argue that it is past time to throw these culturally shaped beliefs overboard. In the interest of the much-debated quest for increased efficiency in the arbitral process, international arbitrators should realize and appreciate that settlement facilitation is not incompatible with their mandate and can be a highly useful tool to resolve the parties’ dispute in a time- and cost-efficient manner.

At a crossroads

Indeed, the recent tectonic shift in the dispute resolution landscape towards more collaborative methods of ADR – as impressively indicated by the GPC – suggests that now the time has come to embrace settlement facilitation as an important tool in any arbitrator’s procedural arsenal.

The growing interest in resolving disputes amicably puts international arbitrators at a crossroads. Either provide what the parties require and offer settlement facilitation within the limits of the parties’ legitimate expectations and due process rights – or lose them to competitive alternatives such as mediation, conciliation and similar collaborative methods of ADR. While it is true that, first and foremost, it is the arbitrator’s mandate to decide the parties’ dispute, that mandate is not limited to decision-making.

Rather, settlement facilitation has become a genuine additional part of the modern arbitrator’s mandate. In line with that change, most arbitrators have overcome the common law/civil law divide. They facilitate settlement where the parties and the case so require – regardless of their cultural background and legal upbringing. This is reflected in the CEDR Rules for the Facilitation of Settlement in International Arbitration which, it is hoped, will grow to become the “IBA Rules of Evidence” for settlement facilitation by international arbitrators.

Shifting focus

It is also reflected in a show of hands at the Fordham International Arbitration and Mediation Conference 2016, which has indicated that a surprising number of common law practitioners do see a role for international arbitrators in the facilitation of settlement in international arbitration proceedings.

To further this understanding of the arbitrator’s mandate, the article dispenses with a common misunderstanding: settlement facilitation by international arbitrators is neither mediation nor conciliation. It is a sui generis process of helping the parties to better understand their case, and eventually to settle their dispute. That process happens entirely within the arbitration proceedings without the process being changed into something else.

As their due process rights are thus in full force, the parties’ informed consent to any form of settlement facilitation is key. The article offers tried and tested tools that allow international arbitrators to facilitate settlement without overstepping their mandate or risking a challenge by the parties.

The full article entitled ‘The Arbitrator’s Mandate To Facilitate Settlement’ by Klaus Peter Berger and J. Ole Jensen is available to download here.

Posted by GPC Series in ADR, Arbitration

Ask An Expert: Eric De Brabandere

EdB PhotoEric De Brabandere, Professor of International Dispute Settlement at the Grotius Centre for International Legal Studies at Leiden University and Attorney-at-Law at Lexlitis Ghent, discusses legal education, international dispute settlement and the rise of international arbitration.

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Posted by Natasha Mellersh in Arbitration, Ask An Expert, Education

Ediscovery In Hong Kong: Dispelling Some Litigation & Innovation Myths

steven-wei-124690

At a recent conference in Hong Kong, attendees were asked about how to improve the dispute resolution process for all parties. Data generated from a live, technology-enabled poll of the audience led to a thought-provoking discussion on the priorities and limitations to innovation in the dispute resolution process, specifically in Hong Kong.

Panelists and attendees agreed that the region currently has a quite low-tech experience, and some of the biggest obstacles attorneys face when seeking to resolve commercial disputes are financial and time constraints.

Identifying the Disconnect

During one of the conference discussions on this subject, the audience was asked to prioritise a list of processes and tools that may improve commercial dispute resolution procedures. Surprisingly (for a technology-minded attorney), “better use of technology” was behind almost every other choice listed except for “other,” as was also the case in the aggregated data from conferences.

However, in voting on what will have the most significant impact on future policy-making in commercial dispute resolution, conference attendees overwhelmingly placed the highest importance on the demand for increased efficiency of the dispute resolution processes, including through technology.

These results raise an important question: how can innovation be brought to change-resistant industries, knowing that professionals in those industries seem to have a vision for the future that isn’t reflected in their current priorities? This inconsistency is an impediment to driving real change and improving the processes behind dispute resolution.

Shedding Light on the Legal Landscape

In short, the key to speeding up innovation is dispelling the myths that prevent progress.

To explore more about the myths around technology and the law, I spoke to May Tai (pictured), a partner at Herbert Smith Freehills in Hong Kong, specialising in cross-border China-related and regional Asian disputes including international arbitration, litigation, and regulatory investigations. May is one of the leaders in technology innovation, and she had some interesting perspective on how to subvert some of the most common myths among technology-resistant legal professionals in the region:

Myth #1: Using sophisticated technology makes the process more complicated and less efficient than the status quo.

May: “Litigation and arbitration are getting increasingly more complex. If we do not use sophisticated technology, we will be left behind because others will use it and offer better products and services to clients. The option of staying with the status quo does not exist.”

Myth #2: Using technology makes the process costlier because you must hire specialists.

May: “Whether using technology makes the process costlier depends on the type and size of the case. Clearly on a very simple or low value case, it is not appropriate to spend money to bring in technology specialists. But in complex and/or high value cases, there is no other way to provide the clients with the best service and best chance of succeeding in their case.”

Myth #3: As an hourly billable entity, law firms don’t have an interest in becoming more efficient.

May: “The number of matters where clients are willing to accept billing by the hour is decreasing every year. Our clients are sophisticated repeat users of our services and they are constantly challenging us to add value and become more efficient.”

Myth #4: The learning curve to introduce technology is too steep and attorneys are resistant to change.

May: “Lawyers do not have a choice in the matter. This is what the sophisticated clients expect and what the counterparty’s lawyers are doing.”

Written by Abigail Cooke.

This article was first published on the 18 May 2017 in Legal IT Insider, for the original version please click here.

Abigail CookAbigail Cooke is a US attorney, based in Hong Kong as kCura‘s head of business development and operations in the Asia-Pacific Region. Abigail started her career with the Civil Division of the US Department of Justice. She then moved into corporate law, working within the pharmaceutical industry, specializing in large-scale corporate transactions, commercial contracts, and compliance. Moreover, Abigail has defined her legal career around the idea that legal processes and the industry in general can be innovative, cost effective, and efficient. 
Posted by Abigail Cooke in Arbitration, Comment, Dispute Management, Technology
Why A GPC Event Is Like No Other Conference You’ve Attended

Why A GPC Event Is Like No Other Conference You’ve Attended

clint-adair-68588With around half of the Global Pound Conference (GPC) events now behind us, well over a thousand delegates have experienced for themselves attending a GPC event. So what’s it like? Put simply, the experience is unlike any other dispute resolution conference you’ll have attended. No dozing at the back of the room as dry speakers work painfully through drier legislative changes. No quiet catching up on your emails as you wonder what will be for lunch.

From minute one you need to be on your mettle and on your chosen electronic device – smartphone, tablet or laptop.  At the heart of the GPC series – and each event – is the opportunity to make your voice heard in gathering data, generating ideas and sharing conversations about the future of dispute resolution and access to justice.  You’ll be part of a local event but your voice and views are part of a global conversation.

You’ll be taken through some practice questions to familiarise yourself with the GPC Series’ bespoke web-based app. You need to vote; give feedback; generate word clouds; make comments; ask questions; and more. Then get stuck into the core sessions that are the heart of the project.

A platform for discussion

In session 1 you’ll vote on what users – the parties to disputes – want and need right now in relation to dispute resolution, ranking choices from a menu of options. Then you’ll work with other delegates in groups to discuss these issues in more detail, inputting your thoughts via the app. You’ll work with whoever is nearby – a general counsel of a major corporation, a retired judge turned mediator, a post-graduate law student, a well-known arbitrator, litigation lawyer or academic.

Soon the voting results from session 1 will be in and a panel of experienced commentators will take you through the results, analysing the voting trends at your event and against the global aggregate data so far. Do you agree or disagree with the panel? Do you have a different point of view or a question? Use the app and join the debate as questions and comments tick up on the big screen in real time. Do you see a comment you agree with? You can “like” it social media style through the app and watch that comment move up the screen. Or put up your hand in the usual way, grab a microphone and start talking.

Looking into the future

Three more sessions follow. In session 2 you’ll consider how providers – existing dispute resolution institutions – meet the needs of ssers. Session 3 turns to the future – how can dispute resolution be changed if users’ wants and needs are to be met in 21st Century dispute resolution? And in session 4 share your views on what needs to be done to drive that change and by whom Each session brings more discussion, more ideas, more conversations and networking, more insight from great panellists; more questions and comments.

The experience is invigorating and inspiring. The conversations are dynamic and practical. You’ll meet new colleagues and together generate new ideas. Seasoned dispute resolution professionals are describing GPC events as the template for dispute resolution conferences going forward.

Click here for a list of events near you and experience a GPC event for yourself.  And look out for the series finale on 6 July 2017 in London  for reflections on the GPC journey so far.

Written by Alexander Oddy.

This is an adapted version of the original article written by Alexander Oddy, Partner at Herbert Smith Freehills in London.

alexander.oddy@hsf.com_WEB
Alexander Oddy is deputy head of commercial litigation in London and heads the firm’s market leading Alternative Dispute Resolution practice. He is a solicitor advocate and a CEDR accredited mediator, and handles all aspects of insurance coverage disputes, commercial litigation and contentious regulatory investigations.

Posted by Alexander Oddy in Access To Justice, ADR, Arbitration
The Hong Kong GPC – Mediating Commercial Disputes

The Hong Kong GPC – Mediating Commercial Disputes

Hong Kong harbourThe Hong Kong Global Pound Conference took place on 23 February 2017 and saw over 200 delegates – judges, commercial parties, corporate counsel, arbitrators, mediators, dispute resolution institutions, government officials and academics – come together to identify trends and cultural preferences in a way that had not been possible through previous studies. Continue reading →

Posted by Anita Phillips, Julian Copeman and May Ta in ADR, Arbitration, LOC Coverage
Investment Arbitration And Financial Products

Investment Arbitration And Financial Products

buildings.jpgUnanticipated disputes can sometimes arise when private companies conduct business in a foreign country. However, foreign investors are granted substantive protections through bilateral investment treaties (BITs), therefore in many cases these companies will opt to resolve such disputes through an investor-state arbitration in order to protect their investment.

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Posted by Duarte Henriques in Arbitration

Celebrating International Women’s Day: Battling Unconscious Bias At Work

mike-wilson-162526As the world celebrates International Women’s Day through a wide range of activities, the central theme this year covers women at work. The UN has published a comprehensive infographic on gender disparity globally, highlighting the low proportion of women in leadership positions. An issue not unique to a particular industry, including law.

What is particularly striking in the field of dispute resolution, is the under representation of women in international arbitration. But what are the barriers to women becoming successful international arbitration practitioners? Continue reading →

Posted by Natasha Mellersh in ADR, Arbitration
Asia, Arbitration And Third Party Funding

Asia, Arbitration And Third Party Funding

HK skyline.jpgHistorically, third party funding has been prohibited in many Asian jurisdictions, including the busy litigation markets of Hong Kong and Singapore. However, recent changes to regulations on third party funding in both jurisdictions are likely to be a further boost to the region, which has already become popular destination for arbitration – overtaking many traditional competitors. Continue reading →

Posted by Natasha Mellersh in Access To Justice, ADR, Arbitration