The CPR European Advisory Board (EAB) continues it series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A, with Fatos Lazimi.
Fatos is a partner at Optima Legal and Financial based in Tirana, Albania. He is an expert in international arbitration law and has participated in several international arbitration cases. He is also a member of the ICC Court of Arbitration in Paris. Please see http://optimalaw.al/2016/11/03/fatos-lazimi/
How did you get your start as a neutral?
It all began back in 2015 when I was a party appointed arbitrator in a domestic case and at about the same time I was handling an ICC FIDC based case. I was appointed as an Arbitrator by a well known company based in Albania but with foreign control. The case was very complex as it dealt with a commercial transaction in the mining industry with a State party. The proceedings lasted longer than expected due to the involvement of many accountant experts and witnesses of facts.
Who is your dispute resolution hero/heroine?It is very hard to pick just one hero or heroine in the dispute resolution arena, but I am deeply inspired by three esteemed gentlemen arbitrators:
- Sigvard Jarvin
- G. Bunny
- Christofer C. Seppala
Sigvard Jarvin: I have been lucky to be local counsel in proceedings where Mr. Jarvin was an Arbitrator (mainly FIDIC Contract based disputes). He is extremely skilled in the management of proceedings and he demonstrates an insightful analysis of the cases before him. His patience and thoughtfulness are very impressive.
Nal G.Bunny: I have not been so lucky to be involved in proceedings where Mr. Bunny has served as an Arbitrator but I have admired him from a distance. He has an encyclopedic knowledge of FIDIC contracts and his Awards – which I have been able to examine – are always well reasoned.
Christofer C. Seppala: I have been honored and privileged to be in close contact with Mr. Seppala while being Member of ICC Court of Arbitration in Paris. On the one hand, he could be characterized without any hesitation as a mentor of interpretation and implementation of ICC Rules. On the other hand, he is an excellent and unique interpreter of FIDIC concepts which are mirrored in many ICC FIDIC based cases.
What is the one piece of advice you would want to give to the younger generation looking for a first appointment as neutral?
They must recognize that they have to live with their cases so they must make their best professional endeavors to ensure the legal process is full of integrity, independence and impartiality.
What makes your conflict resolution style unique?
I encourage the parties in dispute to try and find the things they have in common and I insist on this as part of the process.
What has been the most difficult challenge you have faced as a neutral?
Probably having to consider and then make a decision on a procedural issue which was requested by one party after the proceedings were declared closed. I remember a case where the Claimant asked that the proceedings be reopened more than a year and a half after they were declared closed. It was a very difficult decision to make because the circumstances which triggered the request to reopen were rather exceptional. In particular, evidence had come to light but for state reasons it was classified as highly confidential. The particular difficulty I was faced with was a lack of applicable legislation covering the confidentiality matters and their reflection in arbitration proceedings.
What is the most important mistake you see counsel make?
Devising dilatory tactics and unethical conduct. I have witnessed cases where the parties’ counsels engage in dilatory tactics. For example, filing numerous applications seeking permission to postpone decision making and deferring the time for making a draft award. I view these strategies as harmful for the parties which counsel represents and for the proceedings in their entirety. They have the potential to undermine a party’s position in the eyes of the Tribunal and this may prompt the latter to make adverse inferences. In the long run, such delay tactics decrease the advantages of arbitration as a method for resolving disputes
If you could change one thing about commercial arbitration/mediation [please chose one], what would it be?
Adoption and enforcement of strong conflict rules, i.e. procedural controls on appointments so that the parties do not abuse the right to nominate arbitrators.
What is your approach to cybersecurity and data protection in international dispute resolution?
Data protection and cyber risks are becoming more and more important aspects in administration of arbitration proceedings. I would support a revision of the various institutional rules e.g. ICC, ICSID, LCIA etc. so that they address these issues in stronger terms and impose penalties for breach of the applicable data protection rules.
In preliminary/ early decisions: do you attempt to identify and decide potentially dispositive issues early in the case?
Yes. It is very important in terms of efficiency of the arbitration proceedings to identify the potential areas of dispute, in particular, those which are fundamental to the whole process, like jurisdiction matters, validity of arbitration agreements, bifurcation of proceedings on liability and quantum etc.
With respect to the taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?
Given my professional background and personality I support a more proactive approach in administration of arbitration proceedings and I would therefore opt for the Prague Rules.
What do you see as the next “big thing” in global dispute prevention and resolution?
Extending arbitration to disputes arising from the Belt & Road Initiative. This initiative is likely to spawn many disputes and ADR could be beneficially deployed.
For which types of conflicts would you recommend ADR?
If I had to pick one, I would say labor disputes.
In your view, what makes CPR unique?
Its philosophy and policy of conducting disputes. I think CPR has unrivalled experience in procedural approaches and adopting final workable solutions.
Do you have an anecdote you would like to share?
Arbitration is the key but not the open door.