FICA Announces Contract to Provide Training to Western Balkans Countries

The Forum for International Conciliation and Arbitration (FICA) is pleased to announce that it has been awarded a contract to provide training in Investment law and Investor-State Dispute Settlement (ISDS) to Government officials and legal professionals from the Western Balkan countries of Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia. The project is sponsored by the German Centre for International Cooperation (GIZ).

The FICA team, which will be co-ordinated by Dr Rumiana Yotova, Lecturer in International Law at the University of Cambridge and Door Tenant at Thomas More Chambers, includes Kiran Gore, Professorial Lecturer in Law at The George Washington University Law School and Counsel in the Law Offices of Charles H. Camp. P. C. In Washington D.C., Alan Anderson PhD an attorney with an international practice in all aspects of dispute resolution and international arbitrator in Minneapolis USA who is also a Door Tenant with Littleton Chambers, Middle Temple and Ben Beaumont Barrister with an international practice in all aspects of dispute resolution and international arbitrator of Garden Court Chambers, Lincolns Inn.

 The first session of the programme begins in July with the second session in September.

 About FICA: Founded in 1996, FICA is a non-profit think tank committed to the advancement of national and trans-national dispute resolution. Since 2002, it has held Observer status at UNCITRAL – part of the UN. It has been particularly active in Working Group II (arbitration and conciliation/dispute settlement) and Working Group III (investor-State dispute settlement reform). This training contract arose out of FICA’s involvement with Working Group III. For further information about FICA, or to become a member, go to www.fica-disputeresolution.com.

 All enquiries: Robert Ashdown 0044(0)75 687 19008 

Video to the ELI & FICA Webinar Roundtable on the European Position with Respect to the Singapore Convention on Mediation

On 18 June FICA (Forum for International Conciliation and Arbitration) and the European Law Institute (ELI), held a Virtual Roundtable to discuss the United Nations Convention on International Settlement Agreements resulting from Mediation (the ‘Singapore Convention’) which has not been signed by the EU or its Member States.

The panel members discussed what keeps the EU or its member states from signing the Singapore Convention on Mediation. The panel members reviewed the pertinent aspects of the Singapore Convention on Mediation to create awareness of the Convention and will debate the EU’s position.

A recording of the Webinar can be accessed from the following link and the Access Passcode is ?z7s1zrw:

https://vuw.zoom.us/rec/share/HkCbUqRRntU0CJuRMnlzaZh2gwuMRXEbFKCvEElrtJO8mUwvpNTGbsKYVS1bWAHW.f43dBjgFbQ8zdhu1

ELI (European Law Institute) & FICA Webinar Roundtable on the European Position with Respect to the Singapore Convention on Mediation

FICA (Forum for International Conciliation and Arbitration) and the European Law Institute, will be undertaking a Virtual Roundtable on 18 June 2021 at 11:00 – 13:00 CET Vienna time (17:00 -19:00 GMT+8 Singapore Time)

The United Nations Convention on International Settlement Agreements resulting from Mediation (the ‘Singapore Convention’) entered into force on 12 September 2020. However, the Convention has not been signed by the EU or its Member States. What keeps the EU or its member states from signing the Singapore Convention on Mediation?

Experts will discuss pertinent aspects of the Singapore Convention on Mediation to create awareness of the Convention and will debate the EU’s position.

11.00 (CET) Welcome by Sir Michael Burton, President of FICA and Ms. Katarina Kresal, co-chair of ELI hub in Slovenia, president of the European Centre for Dispute Resolution 11.05 (CET) Roundtable “The reflection process of the European Commission”

  • Is the accession to the Singapore Convention an exclusive jurisdiction of the EU or is it a shared competence of the EU and Member States?
  • To what extent would the Singapore Convention benefit EU stakeholders?
  • Developing mediation policies and practices in Europe.
  • The views of States that signed the Singapore Convention.

12.00 (CET) Break 12.05 (CET) Roundtable “What is the impact of the Singapore Convention on the EU laws and policies?”

  • Does the Singapore Convention interfere with the EU internal regulatory framework (as REIO)?
  • The role of the Hague Convention on Choice of Court Agreements 2005 or the Hague Judgments Convention 2019.

Panellists include:

  • Dr Nadja Alexander, Professor at Singapore Management University
  • Sir Michael Burton, President of FICA
  • Mr Gordon Humphreys, Chairperson at the European Union Intellectual Property Office’s Boards of Appeal, mediator in the EUIPO’s ADR service
  • Dr Catherine Kessedjian, former Deputy Secretary General of the Hague Conference on Private International Law & Professor emerita at University Panthéon-Assas Paris II
  • Ms Katarina Kresal, co-chair of ELI hub in Slovenia, president of the European Centre for Dispute Resolution
  • Ms Corinne Montineri, Senior Legal Officer, UN Office of Legal Affairs, UNCITRAL Secretariat
  • Dr hc Thomas Pfeiffer, Professor at Heidelberg University & Chair of the European Law Institute Special Interest Group on Dispute Resolution
  • Ms Natalie Morris-Sharma, former Chair of UNCITRAL Working group II which drafted the Singapore Convention & Deputy Senior State Counsel with Singapore’s Attorney-General Chambers
  • Dr Norel Rosner, Legal and Policy Officer, Directorate-General for Justice and Consumers, European Commission
  • Dr Rimantas Simaitis, Chairman of the CEPEJ-GT-MED
  • Ms Diana Wallis, Senior Lecturer at the University of Hull, former vice-president of the European Parliament
  • Mr Aleš Zalar, former Minister of Justice of Slovenia and current co-chair of ELI hub in Slovenia, will be moderating the roundtable.
  • Dr Herman Verbist, Vice-chairman of FICA, co-moderator (Q&A) Participants will be able to raise questions. Participation is free of charge.
    Participants will be able to raise questions. Participation is free of charge.
    Webinar Link
    DATE: Friday 18 June 2021 | 11:00 – 13:00 CET Vienna time (17:00 -19:00 GMT+8 Singapore Time)
    To access the webinar, please use this link: https://lnkd.in/dwdzuqp
    Please contact Herman Verbist at herman.verbist@everest-law.be if you have any questions.

Remaining the Dispute Resolution Epicentre: Is MED-ARB in Europe’s Future? By Matthew Finn

Matthew Finn of FICA has recently published an article in IBA Construction Law International (‘CLInt’) Journal, Volume 16, Issue 1 – March 2021 on:

“Remaining the dispute resolution epicentre: is Med-Arb in Europe’s future?”

A hybrid of mediation and arbitration known as Med-Arb is a less formal, more expedient alternative dispute resolution (ADR) process which can be more flexible when resolving disputes. Although rare in Europe, it is widely used in Asian jurisdictions. In order to remain at the forefront of international dispute resolution, Europe could consider the benefits of Med-Arb: namely, a swift and cost-effective resolution, avoiding more traditional costly and time-consuming processes such as litigation and arbitration. As we enter a period of economic downturn in Europe due to the Covid-19 pandemic, are hybrids that combine arbitration with mediation a better form of ADR?

https://www.ibanet.org/Publications/publications_construction_law_international.aspx

International Commercial Contracts By Professor Petra Butler

FICA member Professor Petra Butler has edited International Commercial Contracts published by Oxford University Press. It is available to purchase from 10 July 2021 and can be ordered from Oxford University Press:

https://global.oup.com/academic/product/international-commercial-contracts-9780198809548?resultsPerPage=60&lang=en&cc=sa#

Drawing together all of the legal issues associated with drafting, negotiating and litigating or arbitrating commercial agreements, International Commercial Contracts: Law and Practice provides a comprehensive reference work of all these disparate areas.

The first part of the book sets out and analyses the substantive law that parties can choose to apply to contracts, as well as that which must be applied due to non-negotiable international law. This part includes coverage of contract, trade, insurance and financing law relevant to commercial contracts. There is also analysis and explanation of key specialist areas, including intellectual property, tax and competition law.

The book includes a key section on dispute resolution setting out the various mechanisms available to contracting parties, addressing litigation, mediation, arbitration, and class actions. The final parts cover negotiation, drafting and ethical issues associated with contracts.

https://global.oup.com/academic/product/international-commercial-contracts-9780198809548?resultsPerPage=60&lang=en&cc=sa

FICA Internship

Arush Agarwal

FICA would like to warmly welcome our new intern Mr Arush Agarwal who commenced his internship in November 2020.

Mr Agarwal is a 4th-year law student pursuing his degree from the college University of Petroleum and Energy Studies, Dehradun. He currently holds the position of Managing editor of two journals: UPES Student law review and the International Review of Dispute Resolution. Moreover, he also runs a website named legisnations.com which provides information on the various economic social and political issues. Apart from this, he is currently involved in research work with Mr Hemant K. Batra preparing a new commentary for the Constitution of India.

FICA would also like to thank Mr Agarwal for his interest shown in FICA and look forward to his contribution to the organisation.

The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?

FICA members Alan M. Anderson and Ben Beaumont have co-edited a new book addressing possible reforms to the investor-State Dispute settlement system. The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?, published by Kluwer Law International, may be purchased using the following link:

https://lrus.wolterskluwer.com/store/product/the-investor-state-dispute-settlement-system-reform-replace-or-status-quo/

The Investor-State Dispute Settlement System is a thought-provoking and important contribution to the ongoing worldwide discussions and debates regarding the way forward for investor-State dispute resolution. The investor-State dispute settlement (ISDS) system provides a mechanism, based on international arbitration, to resolve disputes between foreign investors and States. The number of ISDS arbitrations has increased significantly over the past decade. Drawing contributors from around the world, the authors provide insights into critical topics regarding possible ISDS reforms, their feasibility and alternatives.

What’s in this book:

The contributors represent points of view ranging from academia to private practice to governmental entities, addressing such topics as:

• the possible consequences of wholesale replacement or elimination of the current ISDS system;

• the creation of a multinational investment court or appellate review mechanism;

• an early dismissal mechanism to eliminate meritless claims;

• issues regarding arbitrators, including their appointment and ethical obligations;

• whether investors may retain their right to pursue claims for violations of investment protection following termination of an ISDS agreement;

• a State’s right to assert a counterclaim against an investor-claimant;

• the role of ISDS in promoting and protecting renewable energy production;

• the liability of State-controlled entities;

• the effects and implications of third-party funding;

• the duty to mitigate damages in the light of excessive damages awards; and

• improvements and issues relating to post-award enforcement, duration, and cost of ISDS.

This book analyses and considers various proposals and reforms under consideration by UNCITRAL’s Working Group III. It provides insights into how several geographic regions and economic cooperation areas have sought to address the question of reform of the ISDS system, including the European Union, the Middle East, and the new United States-Mexico-Canada Agreement.

Further information about the book may be found here.

https://lrus.wolterskluwer.com/store/product/the-investor-state-dispute-settlement-system-reform-replace-or-status-quo/

Policy Lessons from Catastrophic Events, Bennett Institute for Public Policy, University of Cambridge

Ben Beaumont and Matthew Finn of FICA recently were involved in the working group looking at Policy Lessons from Catastrophic Events by the Bennett Institute for Public Policy, University of Cambridge. The workshop report has now been published and can be accessed from the following link.

Preface

We did not need the coronavirus pandemic to teach us that in the interconnected, technically complex modern world it is easy to make policy mistakes and hard to act on lessons from the past. Still, the current crisis makes it more pressing than ever to consider why it is so hard to learn and apply the policy lessons from past catastrophes and crises.

In crisis response, such as the current context in so many countries, decision-makers face a torrent of often-conflicting advice from different areas of expertise, not synthesised, and sometimes developed in readiness for a different kind of context. One of the elements making for policy responses that later seem clearly inadequate is the regulatory framework. This sits alongside other areas affecting decision-making such as the adequacy of advance planning, information flows, the institutional context and political considerations.

Regulations in technically challenging and safety-critical domains, such as construction, power generation or mining, have accumulated piecemeal over many years. This is often the result of policy reactions to specific events or perceived needs in complex environments. A common criticism is that this accumulation of regulation does not achieve its intended aims, while imposing a large regulatory burden, just as the proliferation of advice in a crisis imposes a large attention burden. This suggests more effective regulation with greater efficiency might be possible, but there are substantial barriers to change. These barriers are high enough, in fact, that there has been a failure on the part of policymakers and regulators to learn and implement the lessons from successive crises – such as fires in tower blocks of the kind that tragically consumed Grenfell Tower in west London in 2017. And, as Bennett Institute research affiliate and former Ofcom board member Steve Unger has written for us, it is hard to sustain attention on such issues in government, once an immediate crisis has passed. A combination of optimism bias and the limitations of attention for complicated issues militate against sustained policy focus on them.

This constant failure means there is an abiding need to think more systemically about regulating and managing complexity, and yet – despite major catastrophes like the Deepwater Horizon explosion or the Grenfell Tower fire – this imperative is not being addressed. And research into policy and policy failures tends to focus on analysis rather than implementation and enforcement. The Bennett Institute was therefore pleased to host with Gill Kernick of JMJ Associates an ESRC-funded workshop bringing together people from different domains of safety practice and research backgrounds to discuss the challenge. Could an interdisciplinary group with different kinds of experience start to identify the barriers and even generate some ideas for shifting them? The challenges the group discussed have only become more urgent in subsequent weeks.

One starting point is accountability. Persistent failure to learn appropriate lessons from all sorts of previous tragedies seems to have been a problem for several decades. For instance the Institute for Government’s 2017 report on public inquiries found that of the 68 public inquiries that had taken place since 1990, only six had been fully followed-up by select committees to see what government did as a result. Checking whether inquiry recommendations have been implemented seems an obvious starting point.

Our day of discussion led to several areas of consensus, concerning both the failure to learn and ideas for ways forward. For example, organisational cultures may focus on satisfying regulations rather than delivering outcomes. In some policy environments there is a ‘blame game’ for political or legal reasons. Experts and decision-makers lack cognitive diversity, tending to come from similar social and professional backgrounds. Rule by rule decision making is unsuited to increasingly complex social and technical environments.

The participants’ views about potential ways forward, including building in following up on recommendations, are also summarised in the overview. Some of those who took part in the workshop have contributed more detailed perspectives, with suggestions for how we might learn lessons from the past. This is a debate we intend to sustain and take forward in the post-pandemic environment, building on the workshop; and we hope to hear from others who would like to contribute.

https://www.bennettinstitute.cam.ac.uk/media/uploads/files/REPORT_Policy_Lessons_from_Catastrophic_Events_-_FINAL_005.pdf