Tag Archive | "Alternative Dispute Resolution"

DU’s Foreign Direct Investment Moot Team Travels to Argentina To Compete

Photo Credit: The Himalayan Times

Photo Credit: The Himalayan Times

The Foreign Direct Investment (“FDI”) International Arbitration Moot competition this year was in Buenos Aires, Argentina at the stunning Facultad de Derecho at the Universidad de Buenos Aries. Four students from the University of Denver Sturm College of Law (“SCOL”) competed in this event as one team.

The FDI Moot competition was created in 2008 with a specific focus on investor-state disputes that “involve not only vast sums, but also a panoply of rights, duties, and shifting objectives at the juncture of national and international law and policy.” The FDI Moot is an arbitration for resolving a fictional international investor-state dispute. It is a complicated and intricate field of law—I assure you. Investor-state dispute settlement (“ISDS”) is fast becoming a widely-known mechanism (even in the public sphere, in light of the controversial Trans-Pacific Partnership Agreement) for resolving disputes between a foreign investor and a sovereign state. In fact, ISDS is the theme of the upcoming Denver Journal of International Law and Policy volume 45.2.

The SCOL team began its journey in adjunct Professor Todd Well’s International Investment Arbitration course in Spring 2016. While waiting for the official problem to be released, the class scratched the surface of this interesting world of ISDS arising from Bilateral and Multilateral Treaty breaches. In the months following the official release of the problem in March 2016, the SCOL team was selected, and the real challenge began. First, the team had to organize research, topics, ideas, and concepts and create two Memorandums—one for the Claimant and one for the Respondent—in the fictional dispute between Peter Explosive, an arms producer, and the Republic of Oceania. The Memorandums were 16,000 words maximum, which we quickly learned required serious condensing skills. Then, the oral advocacy work began until October 27th, when the team left the U.S.A. to compete.

Three of the four SCOL team members attended the FDI Pre-Moot competition in Sao Paulo, Brazil from October 28th-30th, and all four attended the FDI competition in Buenos Aries, Argentina from November 3rd-6th. The Pre-Moot competition was held at the beautiful Headquarter Office of TozziniFreire Advogados. We were welcomed with both hospitality from TozziniFreire’s brilliant attorneys, and fierce competition from the learned opposing counsel. We met people from all over the world who participated in the Pre-Moot. We saw our new friends again in Buenos Aries for the Global Orals. In BA, 57 teams from 31 countries participated in this international competition. The Paris Bar School won at UBA, and Harvard Law School came in 2nd. The Universitas Gadjah Mada, Faculty of Law was the highest ranked (written & oral) team. As for team SCOL, we exceeded our expectations, surpassed personal goals, and met established practitioners and scholars in this growing field.

This short article cannot encompass every emotion, triumph, breakdown, and vast improvement that each team member felt at different points of this six-month-long effort. But, I can tell you this experience, which tested the limits of each team-member’s sanity, was well-worth it.

Ashley Lloyd is a 3l at the University of Denver Sturm College of Law, and the Business Editor with DJILP. She participated in the Foreign Direct Investment International Arbitration Moot competition this year in Buenos Aires, Argentina.

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An International Convention on the Enforcement of Mediated Agreements?


Photo Credit: Dunya News

There is a growing use of mediation in international commercial disputes. Many have pointed out that mediation is ‘the new arbitration’, because arbitration has become increasingly formalized, costly, lengthy and adversarial in nature. Others argue that mediation cannot take the role of arbitration, and one of the reasons is that it lacks an international system for enforcement of mediated agreements like that of arbitration awards in the New York Convention of 1958. This has spurred ideas on creating such a system to further promote mediation as a way to solve international commercial disputes. Following a proposal by the US in July 2014, United Nations Commission on International Trade Law (UNCITRAL) is currently investigating the possibility, desirability and best design of an instrument, such as an international convention, on the cross-border enforcement of international mediated agreements (referred to by UNCITRAL as settlement agreements resulting from conciliation), similar to the New York Convention for arbitration.

In international business, the main ways to settle disputes are adjudicative, namely through arbitration and domestic court litigation. Mediation has many advantages compared to those methods. By being an informal and private form of dispute settlement, it takes significantly less times and involves considerably less costs than arbitration and litigation. It also has the potential of producing savings in domestic administration of justice if some in-court litigation is avoided. In contrast to arbitration, the parties have control over both the decision to settle and the terms of any settlement, which in turn enables creative solutions where business considerations and common interests can play a key role. Finally, mediation helps preserve ongoing commercial relationships, which can be especially important in joint ventures or long-term supply contracts; by comparison, an adjudicative process is per se disruptive. However, many of these benefits of mediation in international commercial disputes are dependent on the finality of the mediated agreement, i.e. that parties are bound to comply and unable to bring the dispute anew. The possibility of cross-border recognition and enforcement of mediated agreements is therefore vital in promoting meditation, facilitating international business and mitigating social costs.

Currently, countries have various ways to enforce international mediated agreements. Some provide for enforcement of mediated agreements as court judgments. However, that is often limited to court-sponsored mediation or cases first filed in court, and enforcing such court judgments across borders is often difficult. Other countries allow arbitral tribunals to convert mediated agreements into awards on agreed terms, also referred to as ‘consent awards’, thus enabling the agreements to be enforced as arbitral awards. However, as with court judgments, this often requires that the disputes started as arbitration cases. In many other countries mediated agreements are treated as ordinary contracts, which means that a party must file a normal suit claiming breach of contract in order to obtain enforcement. This entails normal burden of proof rules and no res judicata effect from the mediated agreement.

On the international level, UNCITRAL has previously attempted to enhance the use of mediation and other conciliation methods through its Model Law on International Commercial Conciliation of 2002. However, the Model Law leaves the matter of enforceability to the individual state. It has therefore been widely criticized for doing no more than merely restating the obvious. The New York Convention potentially allows arbitral tribunals to convert mediated agreements into consent awards. However, since the Convention only governs arbitrations arising out of “differences,” it is unclear whether it can be used for differences that did not exist at the start of an arbitration process; with a prior mediated agreement there are arguably no differences to be arbitrated. Parties wishing to use mediation to settle there disputes are therefore presently advised to include an arbitration clause, or a hybrid clause such as Arb-Med, in their contract and to convene an arbitral tribunal before commencing mediation, in order to ensure enforcement under the New York Convention. Even so, this creates unnecessary costs and delays for convening arbitrators and attorneys etc. In addition, most arbitration rules allows consent awards only if the arbitrators themselves agree to it and it is not certain that arbitrators would agree to merely rubber-stamp mediated agreements.

It is therefore clear that there is a need for a new international instrument that ensures enforceability of international mediated agreements, and the current proposal discussed within UNCITRAL should be encouraged and accelerated. As to how such an instrument should be designed there are some key issues to agree on, for example the form of the instrument, coverage of non-commercial disputes, conditions for the mediation process and the mediator, enforceability also of agreements to mediate, enforcement of non-monetary or otherwise complex agreements, and grounds for refusal of enforcement.

The existing political momentum should be utilized. Having the US, the major player in international business, as its number one proponent makes the convention more likely to be accepted by a critical number of countries. In addition, in a recent survey of members of the international legal and business communities the vast majority of the respondents believe that a convention on the enforcement of mediated agreements would be very useful for international business. Their views are valuable in convincing countries of the merits of a new international instrument. The fact that there are many different domestic systems for enforcing mediated agreements could make agreement on a new convention more difficult, however, the situation was similar for arbitration when the New York Convention was agreed upon, and, presently, rules on enforcement of mediated agreements is at a developing stage in many countries. Moreover, if based on the structure of the New York Convention, the new convention would already be familiar to countries, making it easier to reach agreement.

The relevant Working Group of UNCITRAL will meet in Vienna, 12-23 September 2016, and hopefully an ambitious timeline for the preparation of a convention will be agreed upon.

Matilda J. Brolin is currently a fellow at the World Bank, Washington D.C., and holds an LL.M. from Harvard Law School focused on international law and dispute resolution, as well as an LL.M. from Uppsala University.

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