The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Klaus-Olaf Zehle”

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 Klaus-Olaf Zehle.

Klaus-Olaf is a German ADR practitioner based in the northern part of German.  His activity focuses on mediation, moderation of meetings and workshops and coaching.  A qualified industrial engineer, Klaus-Olaf spent 20 years in leadership positions at local and international IT consulting firms. He also sat on the board of a public telecommunication and outsourcing provider.  In 2004, he started a second career as mediator, coach, moderator and leadership trainer with a natural special focus on customers from technology and engineering.  He is a Certified Mediator from the International Mediation Institute (IMI), Den Haag and qualified as Certified Mediator according to German law. In addition to the CPR Panel of Neutrals, he is also on the panel of mediators for commercial disputes and an arbitrator for IT conflicts at the Hamburg Chamber of Commerce.  Klaus-Olaf is very active in mediation in and around Hamburg where he lives: he teaches mediation in the Masters in Programme Management at the International School of Management and Networking & Network Building in the Masters in Corporate Management at the Business and Information Techology School.  He speaks and practices in German and English.

Klaus-Olaf has kindly agreed to contribute to our series and give us his insight on his mediation practice:

How did you get your start as a neutral?

Before any education on mediation, I got my first experiences as an Executive in a company by solving conflicts between departments which had different targets.

Who is your dispute resolution hero/heroine?

Gary Friedman and Jack Himmelstein from the Center for Mediation in Law are my mediation heroes. Not only did I benefit from two practitioner trainings with them, but they have also influenced the German mediation scene from the early days of mediation in the country. Nearly all of my coaches in mediation had undertaken their first education in mediation from Gary and Jack.

Their concentration on the power of understanding characterizes the way in which I now personally conduct mediation.

From Germany my mediation experience was mainly influenced by Stephan Breidenbach and Jutta Lack-Strecker.

What advice would you give to the younger generation looking for a first appointment as neutral?

Do not expect to be the neutral that all parties in dispute are waiting for.

It takes a long time to build a reputation. Networking in local and nationwide mediation associations is helpful. There, you can get experience from other neutrals.

Also, local events are very important; you should try to make presentations or speeches about the benefits of mediation and other dispute resolution processes at such events. It’s all about educating your potential clients.

Short articles or essays about dispute resolution in local newspapers or journals also can be of help.

Were you ever the first in doing something?

Yes, on many occasions, I was an innovator or early adopter. In my profession as a consultant, I was one of the first to offer mediation. A lot of my colleagues followed me in this specialization.

Together with three colleagues, we developed a specific consulting concept for disputes within a corporation, which is based on the principle of disputes resolution by a neutral dispute. We named this concept equidistance consulting.

We also developed a new methodology called Congruation (Congruence & Integration).  This process refers to the need to show the differences in the positions and interests of the various members of a team or a board in order to solve latent conflicts.  This is a paradigm I learned from coaching by Gary Friedman and Jack Himmelstein,

What makes your conflict resolution style unique?

While I am conscious that it is not – from a purist point of view – part of a neutral’s role or acceptable, I sometimes switch from a mediator role to that of an experienced person with an outside view of the situation and provide advice and ideas on how to resolve the conflict. I always do this with the prior full consent of all parties involved.

One example: During a mediation process with several partners of a law firm and relating to managing issues, I switched my role at some point and reported to them on best practices that I teach in leadership courses. These best practices are intended to give the parties the possibility to learn from each other.  The parties are free to decide together whether they want to follow this kind of best practice or an adjusted version of the same.

What has been the most difficult challenge you have faced as a neutral?

I mediated a team conflict, which after some discussions resulted in there being one person opposed to nearly ten colleagues. I was convinced that even in this specific setting the conflict could be resolved by mediation. During the process, the significant imbalance of one against ten became more and more obvious, and I started to feel inclined to support the one-person party. I therefore recommended that they reduce the number of participants in the group of ten persons. This proposal was not accepted, and we stopped the mediation process.

What is the most important mistake you see counsel make?

Counsels who insist on prolonged discussions after a clear getting to “yes” phase. They should accept that their client does not need additional reasons or to reopen the discussion.

I sometimes have the feeling, that counsels like to make themselves valuable by showing that their view – when it is different from the negotiated agreement – is still the only right way.

If you could change one thing about commercial arbitration, what would it be?

Mediation should be mandatory before going to court or arbitration.

Now let’s turn to a specific topic: what is your approach to cybersecurity and data protection in international dispute resolution?

Online mediation is one of the most efficient ways to resolve disputes among parties who are located far away from each other. The current discussion on security risks of some platforms should be addressed at the beginning.  The benefits should be balanced against the risks of confidentiality. All parties have to agree on the video conference platform to be used. Those documents that contains material worthy of protection could be shared in encrypted form via a separate communication channel and parties should be instructed not to share such material on screen during the video conference.

In your view, what makes CPR unique? 

During my master studies in mediation, I learned about CPR in conjunction with the CPR pledge. I liked this idea and based my master thesis on this topic. The CPR pledge is for me still one of the key elements to dispute resolution.

Do you have any concluding remarks or an anecdote you would like to share?

My 2005 published master thesis on “Enhancing the acceptance of Alternative Dispute Resolution (ADR) practices between corporations through voluntary commitment, considering the example of the CPR Pledge and its transferability to the German market” was included in a PWC Study on ADR, which has had a lot of impact in establishing a series of conferences on ADR in Germany. Out of these conferences a round table of large corporations was established which now developed a pledge for Germany. CPR has indirectly influenced the acceptance to ADR in Germany.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Mladen Vukmir”

The CPR European Advisory Board (EAB) continues its series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents this Q&A with Mladen Vukmir.

Mladen is the founder of Vukmir & Associates based in Zagreb, Croatia https://www.vukmir.net/.  He has a background in intellectual property and is both a patent and trademark agent, admitted to practice before the Croatian State Intellectual Property Office (CSIPO) and the European Patent Office.  He has been appointed by the Croatian government to serve as a member of the Board of Appeals for Patents and Topographies.  In addition, he is an arbitrator on the panel of domestic disputes at the Permanent Arbitration Court at the Croatian Chamber of Commerce, a panelist on the UDRP Domain Name Panel at the WIPO Arbitration and Mediation Center and a distinguished neutral on the CPR Panels of Neutrals and at the INTA PON as well as being an IMI certified mediator.

How did you get your start as a neutral?

I have always thought that the adversarial process is not properly aligned with the interests of the disputants.  During the second year of my traineeship, back in the Eighties, I attended a hearing in a divorce proceeding where I realized that I was not helping my client very much by bringing in legal expertise and positional thinking.  Although I was well educated, I was not equipped to deal with the human aspect of the challenge faced by my client, captured in a protracted lawsuit.  While it is a great anecdote, I will not retell it here beyond this summary.

As I am professionally involved in intellectual property, as soon as I became aware of the WIPO efforts in the mediation field, I joined its mediation education course in San Francisco, back in May of 2000 and immediately afterwards continued with the advanced trainings.  A couple of years later, I participated in a full USAid mediation training held in Croatia by US instructors, followed by the first batch of International Trademark Association (INTA) international trainings as well as some CEDR organized trainings for the local judge mediators.

I clocked up my first practical experience (as a volunteer mediator) through a pilot, court-annexed program initiated by the Croatian ministry of Justice. This was followed by more international trainings and commercial mediation in various settings

Who is your dispute resolution hero/heroine?

My biggest mediation hero is Judge Srđan Šimac of the Croatian High Commercial Court, who started independently from me the very same year, through a judges’ exchange program in Canada. Since 2000, he has succeeded in bringing Croatia into the group of countries considered to have a developed mediation scene.  A remarkable achievement.  Since he took over the Croatian Mediation Association (HUM), he has turned it into a highly professional and experienced mediation hub, with an established mediation center and various training programs.

One of my early international trainers, an Italian mediator, Carlo Mosca, is also someone whom I remember as being a big influence.  It was Carlo who first told me as a trainer during an INTA international training that a mediator is not responsible for the outcome of the process but is primarily responsible for the process itself.  I think this is a very important insight for young mediators.

I should also mention my early trainers Bill Marsh, the late Colin Wall, and David Richbell, as well as Robert Mnookin and Gary Friedman. In addition, I would also like mention Jack Himmelstein, who was not my teacher but whose video on joint meetings strongly influenced me in accepting the importance of the joint mediation sessions relative to caucusing.

What is the one piece of advice that you would want to give to the younger generation looking for a first appointment as neutral?

Take any mediation that becomes available to you in order to find out how you function in the role of a mediator.  It is important to find out as early as possible your own ideal balance between the knowledge you have acquired through mediation trainings, which helps to form you as a mediator playing her/his role and your own authentic self.  Finding this balance is important in order to be able to build a deeper rapport with the parties.  Secondly, do not hesitate to push much of the content typically dealt with during the opening phase into the preparatory phase of a mediation.  This will make running the process with maximum efficiency much easier and, again, deepen your rapport with the parties.

Were you ever the first in doing something?

I was among the very first in my country to become interested in mediation back in 1999. This, in itself, was a pioneering step.  However, I think even more important is the fact that since 1986, I have been very aware that the role of law will change in our societies.  After many centuries of the increasing importance of law as a central axis of social organization, we are now faced with the prospect of law shifting away from its central role as a tool of social organization.  To make myself clear, I do not think that law will vanish in any way, rather, I believe it will morph and shift to a different position in our societies, in a way similar to the path feudalism took previously.  It did not disappear, but transformed into today’s role of constitutional monarchies bound by law.

Before the legal profession was ready to discuss this type of issue, back in 2004 I published an article, entitled “Embracing the Negative to Achieve the Positive” in The European Lawyer magazine, pointing out what was perceived as wrong with the system (https://www.academia.edu/19744783/Embracing_the_Negative_to_Achieve_the_Positive)This preceded, by some four to five years, thinking about the limits of the legal profession such as those elaborated in the fascinating book The End of Lawyers by prof. Richard Susskind.

What makes your conflict resolution style unique?

I strongly believe that every individual has a unique mediation style and that every mediation will further influence it.  Each mediation is unique, just as snowflakes are and a good mediator understands that.  Every mediator is bound to be unique because if a mediator is true to himself or herself he or she will approach any problem in his or her own, unique way.  For example, because of my countercultural background, some street-smartness gained on the rock and roll scene, lengthy education in different countries and my legal family background, my own blend of introvert and extrovert characteristics, will certainly result in me having some individual approaches and ideas!

What has been the most difficult challenge you have faced as a neutral?

In retrospect, all of the challenges seem just like a learning process, whereby one gradually matures.  Certainly, one of the most unexpected for me was a situation that occurred early on in my career.  It happened in a business mediation and developed from a simple request by the parties to turn on the air conditioning in the room where we were meeting.  It was an unfamiliar setting for all of us, we were in a hastily adapted apartment that was being used on a temporary basis by the Mediation Center.  Not knowing where the AC controls were in this old apartment, I scanned the walls, looked under the windows and around the AC machines, as I did so I heard noises behind me.  When I have turned around I saw the parties on their feet pushing the table at each other.  The chairs which they had been sitting on soon started tumbling to the floor and then the shouting started. I managed to calm the parties sufficiently for them to pick up the chairs and sit around the table but I was not able to get the conversation running again or otherwise remedy the harm to the process that had occurred.  The parties decided to proceed with arbitration as per the dispute resolution clause that was applicable.

Back then I was a very young mediator and I have since learned a great deal about the importance of the environment, which I have used to great benefit in some difficult subsequent mediations.  For example, when faced with a serious impasse, it can be helpful to stand up and move away from the table, allowing the parties to regain space and start behaving partially out of the scope of authority of the mediator.  This technique can encourage parties to be more assertive achieving transition to the phase of ventilation more quickly thus breaking the impasse choking the process.

Besides this single example that I have selected here, in general, I still find it rather demanding to deal with ethically questionable episodes that are revealed in some mediations.

What is the most important mistake you see counsel make?

I generally see counsel that approach the mediation process with good faith and the utmost effort to sustain it.  Having said that, I can provide an example of a situation where a counsel sent me through the roof, figuratively speaking.  I will never know if it was a result of counsel not understanding the process or a deliberate attempt to undermine it.  The situation arose when I was engaged by an important international mediation center as a convener, as they could not convene the parties themselves.

I spent a couple of months getting familiar with the matter and building trust with the parties, only to see a representative of one of the parties defeat all that effort with a single letter, drafted against my advice which I had provided based on my understanding of the issues behind the refusal to mediate.  Instead of sending a carefully drafted, emotionally balanced and deferential communication, counsel decided to send out just another one of the positional threats that sounded impersonal and legalistic.  I am not sure that his client was consulted, or even informed about my efforts and recommendations.  The letter was not well received by the party that previously refused to mediate and it derailed the process.

My lesson here was that I might have had focused too much on the party that wished to avoid mediation and not enough on the party that was nominally willing to mediate. Regardless, it was really disappointing to see a colleague unable to contribute to, or even possibly intentionally undermine the rapprochement between the parties – by clinging onto the positional threats and impersonal communication.  Having said that, my overall experience is that counsel are very helpful to the mediation process in general.

If you could change one thing about commercial arbitration, what would it be?

I never look at arbitration and mediation as belonging to the same group of ADR methods.  Arbitration is a position-based process and mediation is not.  Arbitration has a third person deciding on the outcome, rather that the parties achieving the settled outcome.  I therefore, make a clear distinction between the two.  I serve in both processes, but largely refrain from presiding as an arbitrator because I feel that the energy I spend is not proportional to the degree of service I can bring to the disputants.

However, since I do serve as a wingman from time to time, I can say that in my experience, some arbitrations are indeed more burdensome for the parties than litigation is, in terms of costs, complexity and duration.  Because it is essentially a legal process, I think that the emphasis of the legal aspects in arbitration is not ideal in the ADR context.  Equally, mediation is not free from its downsides.  One of my early mediation trainers and a very experienced mediator himself said some twenty years after we have met and after he went through a mediation as a disputant for the first time, that he found the experience very difficult and much worse than he expected.  He felt the process was painful and his feeling had apparently nothing to do with the mediator, or with the other party making it difficult, it was just simply difficult to go through the mediation.

Admittedly, his experience was based on the personal dispute, not a business one. Nevertheless, in order to prevent such experiences, I would like to assist the disputants in feeling as good as possible in the mediation setting and I think that one of the ways of doing this is actually not to focus only on the process itself.  Of course, given the expectation of businesslike focus on the issue in dispute and the process itself, a mediator that departs from such focus risks appearing unprofessional.  In other words, what I would like to help disputants do is peel away layers of the professional masks we wear all the time and be themselves to a greater degree even in commercial mediations.

Now let’s turn to some specific topics:

  • What is your approach to cybersecurity and data protection in international dispute resolution?

I was always familiar with technology as I have worked with the IT industry early in my career and have myself been an eager early adopter.  I think that one should neither completely rely on the technology nor fear technologies’ weaknesses. All software is bound to have some security issues, but that is not a reason not to go digital.  Data can be lost and or compromised in the physical domain as well.  Parties must set the standard of security they wish to achieve jointly and the mediator needs to adjust to their decision.  As I am generally in favor of high transparency standards, I don’t have a personal urge to overprotect, but I will, depending on the circumstances, strive to adapt even to the highest security standards available.

  • Preliminary / early decisions: do you attempt to identify and decide potentially dispositive issues early in the case?

Generally, yes.  I think that “slicing the salami” in an arbitration has the potential to be very productive but I should say that identifying dispositive issues early does not necessarily mean that they will be decided early in most of the cases.  I just think that identifying them is likely to be beneficial and deciding on them needs to be determined based on the legal and factual considerations of each case.

  • Taking of evidence in arbitration: are you IBA Rules or Prague Rules?  And why?

I have studied law in both civil and common law systems and do not favor either one on principle.  I am mindful of the fact that procedurally, arbitration is often complex and it can sometimes be a burden for less sophisticated parties.  I therefore agree with the attempts of the Prague rules drafters to bring increased efficiency into the arbitral proceedings.  My general view is that it is best for the parties to settle in an interest-based proceeding, rather than to conduct a high-end position-based process to its end.

As I have mentioned above, I do participate as an wingman arbitrator but generally not as a presiding arbitrator because I believe that as a presiding arbitrator focusing on the positional legal process, I am not helping parties in the best most constructive manner.

What do you see as the next “big thing” in global dispute prevention and resolution?

Parties’ empowerment.  It is already happening and the parties who take responsibility for their contribution to the dispute and who ramp up their communication skills will successfully retake control of their disputes.  Parties that are skillful in recognizing all involved interests clearly and communicating properly about them are likely to diminish the overall number of unresolved disputes significantly.  Therefore, ubiquitous, everyday application of the advanced communication techniques by the parties themselves is going to make a sea change in the dispute resolution field.

For which types of conflicts would you recommend ADR?

All, and I do not say that lightly, I have come to that conclusion based on my experience that regardless of the nature of the dispute, joint efforts to resolve issues are successful in any arena when the parties put in genuine effort.  In some fields, the percentage of success might be lower, but communicating properly will continue to be of the utmost importance.

In your view, what makes CPR unique?

For me, CPR will remain unique as it was one of the first globally reputable mediation centers I was associated with.  This happened at the time of cooperation between CPR and INTA while Peter Phillips was still involved, back in the mid Nineties.  The degree of conviction in the strength of mediation that I have witnessed at CPR impressed me a lot and the great skills of the mediators associated with the Center has had a lasting impact on me.

Do you have any concluding remarks you would like to share?

It was Peter Phillips, whom I have mentioned above, who welcomed me warmly and took me for lunch during my first visit to the CPR offices.  It was immediately after an INTA meeting where Peter spoke with strong conviction and unabashed emotion about the benefits of mediation.  As someone with a background in rock culture, I was pretty much persuaded that this type of personal attachment to the cause is superior to the distanced ways so many of our colleagues choose to adopt.

The CPR European Advisory Board Presents: “Meet CPR Distinguished Neutrals Based in Europe: Jennifer Kirby”

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 Jennifer Kirby.

Jennifer is the founder of Kirby in Paris, France.  She acts as counsel, party-appointed, sole arbitrator and chairman in arbitration proceedings under a variety of arbitration rules.  Her experience spans a wide variety of industry sectors.  In addition to CPR’s Panel of Neutrals, Jennifer is listed on the panels of many other international arbitration institutions around the world.  Prior to creating her own boutique arbitration firm, Jennifer was a partner at a large law firm (2008-2010), the ICC Deputy Secretary General (2005-2007), ICC Counsel (2002-2004) and an associate with large U.S. law firms.

Jennifer kindly agreed to grant us an interview.  Here are her insights:

1. How did you get your start as a neutral?

When I went to law school at the University of Virginia, there were no classes in international arbitration.  And if there had been, I probably would not have taken them.  I never took any international law classes or even had any interest in anything with the word “international” in it.  A more provincial American law student would have been hard to find.

On my first day as an associate at Simpson Thacher, the assigning partner told me he was putting me on an international arbitration with Jack Kerr.  I said, “What’s an international arbitration?”  He said, “You’ll figure it out.”

As I began working on my first arbitration, it was not too different from working on my domestic litigation cases.  As an associate, I was doing pretty much the same work – e.g., drafting briefs (but they were called submissions), preparing affidavits (but they were called witness statements), reviewing documents as part of discovery (but it was called disclosure).  There was, however, one thing I could do in arbitration that I could not do in domestic litigation: live in Paris. 

It was this realization that prompted me to seek out as much international arbitration work at the firm as I could.  After about three years, I spoke with Rob Smit and told him that (1) I wanted to work exclusively in international arbitration and (2) I wanted to live in Paris – neither of which were possible at Simpson at that time.  I asked Rob if he could help me find a job.  He said, “Maybe you could get a job at the ICC.”  I said, “What’s the ICC?”  He said, “You’ll figure it out.”

All told, I spent six years at the ICC – first as Counsel and then as Deputy Secretary General.  It was at the ICC that I really learned the ins and outs of international arbitration.  The ICC is to arbitration what SEAL training is to combat.  The learning curve is steep, and the work is demanding.  But by the time you leave the institution, you know how to handle pretty much any situation an arbitration can throw up.

I received an appointment as co-arbitrator from the LCIA not long after leaving the ICC to rejoin private practice.  At that point, I had already been working exclusively in international arbitration for about ten years and was a known quantity to people at all the major arbitral institutions.  While some institutions require you to have had a case before they will give you one, others are open to giving new arbitrators their first opportunity.  Thankfully, the LCIA was willing to take a chance on me.

2. Who is your dispute resolution hero/heroine?

Robert Briner.  Dr. Briner was the chairman to ICC Court during most of the years I worked there.  I had the pleasure of seeing him regularly and working with him quite closely for about five years.  That he was a giant in the field cannot be gainsaid, but saying this understates his significance to me, which is more personal.  He combined integrity, intelligence, practicality and diplomacy in a way that made him not just an inspiration, but a kind of guiding light.  To this day, when faced with a particularly tricky situation, I ask myself, “What would Dr. Briner do?” 

3. What is the one advice you want to give to the younger generation looking for a first appointment as neutral?

Once you have some meaningful experience as counsel under your belt, meet with arbitral institutions and let them know that you want to start sitting as arbitrator.  CPR, as well as the ICC and the LCIA take a keen interest in raising the next generation of international arbitrators and giving new people a shot.  As more senior people become increasingly oversubscribed, this is essential.

4. Were you ever the first in doing something?

Given that I am young (by arbitration standards), I doubt that I am the first to do anything.  Everyone in my generation necessarily stands on the shoulders of those who came before us.  Having said this, I believe that when I started my own boutique arbitration practice in 2010, I was among the first people to do so. 

At that time, clients were especially cost-conscious in the aftermath of the 2008 financial crisis.  How to Reduce Time and Cost became the prevailing theme at arbitration conferences around the world.  I started my boutique to offer top-flight arbitration expertise for smaller disputes where it would not be cost effective to engage a large firm. 

What surprised me, though, was how many arbitral appointments came in.  At that time, I was focused on acting as counsel and it had not occurred to me that this would happen.  But I’m glad it did.  For me, sitting as arbitrator is an honor, a privilege and a passion. 

5. What makes your conflict resolution style unique?

I make a point of knowing the file well from the beginning of the case through the award.  This allows me to manage the case proactively and efficiently and to take correct decisions quickly from beginning to end.  This may not be unique – indeed, I hope it is not – but (sadly) many lawyers have told me that it is rare.

6. What was the most difficult challenge you faced as a neutral?

I am often appointed in cases that promise challenges even many experienced arbitrators would have trouble managing.  So much so that, at this point, it is probably fair to say that I specialize in difficult cases.  The challenges I have faced are so numerous and varied that I cannot say which has been the most difficult.  Nor would I want to try, as describing the situations would necessarily entail disclosing circumstances that would be identifiable at least to the people involved and perhaps others.  Instead, I will simply make an observation. 

In 2009, Global Arbitration Review held a roundtable discussion in Paris on The Dynamic of Time and Cost.  At that event, Emmanuel Gaillard said that two attributes arbitrators should have are the “ability to anticipate” and “courage”.  As an arbitrator, it is not enough to keep up with a case.  You need to be thinking several steps ahead – anticipating the parties’ likely next moves and what will be coming down the pike.  And when the moment arrives for you to take a decision, you have to have the guts to take the correct one – come Hell or high water.  Unfortunately, too many arbitrators lack the courage to do so. 

7. What is the most important mistake you see counsel make?

Counsel in my cases are generally superb.  One of the great pleasures of sitting as an international arbitrator is seeing excellent advocacy.   In my experience, mistakes are rare – and important mistakes are even rarer. 

Having said this, I have occasionally had counsel who try to capitalize on the due process paranoia that at times seems more rampant than the coronavirus.  I am, however, immune to that particular disease.

8. If you could change one thing about commercial arbitration, what would it be?

I would have far more cases decided by sole arbitrators instead of three-member arbitral tribunals.

In 2009, I challenged the prevailing party preference for having three-member tribunals in my article With Arbitrators, Less Can Be More: Why the Conventional Wisdom on the Benefits of Having Three Arbitrators May Be Overrated.  There, I contended that, from a systemic perspective, having three arbitrators as opposed to one does not generally improve the quality of the arbitral process or the award and may actually do the opposite.  Any increased confidence parties have in the arbitral process from having three arbitrators is accordingly misplaced.

I wrote that article before I had ever served as arbitrator based on my experience at the ICC, where I participated in the administration of approximately 3000 international arbitrations and read and critiqued over 1000 draft arbitral awards.  Since then, my more granular experience sitting as arbitrator has only confirmed my views.  Given parties’ attachment to having party-nominated co-arbitrators, however, I do not have high hopes that the preference for three-member tribunals will abate any time soon.

9. Some specific topics:

a) What is your approach to cybersecurity and data protection in international dispute resolution?

CPR and FTI Consulting have developed a superb series of training modules on cybersecurity and data protection.  They explain the nature of the threats that currently exist, the duty arbitrators have to mitigate the risk they pose, and the practical steps arbitrators can take to do so depending on the particular circumstances of their practice.  I have found this series to be invaluable. 

And I can’t see the word cybersecurity without immediately thinking of Stephanie Cohen.  Steph is my go-to guru for all matters related to cybersecurity and data protection.  She is as practical as she is knowledgeable.  I cannot overstate how much I have benefitted from her expertise and guidance.   

b) Taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?

IBA Rules.  The IBA Rules reflect the prevailing consensus with respect to the taking of evidence in international arbitration.  In Procedural Order 1, I typically note that I may refer to the IBA Rules for guidance in the conduct of the proceedings and no party has ever objected to this or suggested that I should refer to the Prague Rules instead. 

In all events, however, I am not sure that the two sets of Rules would be as different in practice as one might think.  This is because the differences seem to me to be more matters of emphasis than fundamentals. 

Both the IBA Rules and the Prague Rules give arbitrators ample discretion to craft solutions that make sense in light of the circumstances of the particular case.  Does a reference to one set of Rules as opposed to the other lead arbitrators to exercise their discretion in a materially different way?  Maybe.  But if I had to guess, I’d say, “Probably not.”  Unless and until the Prague Rules gain greater currency, however, it’s hard to know.

10. What do you see as the next “big thing” in global dispute prevention and resolution?

I will be interested to see how expedited rules may come to affect arbitral rules more generally.  Many institutions now have expedited rules that provide for streamlined proceedings.  These rules are often designed with smaller cases in mind, but it may be that they ultimately point the way to making arbitral proceedings more efficient across the board. 

11. For which types of conflicts would you recommend ADR?

I am usually hesitant to suggest ADR to parties appearing before me.  In the cases where I sit, the parties and counsel are almost universally sophisticated and experienced.  I figure that they are aware of mediation and other forms of ADR and have considered those options.  If they have not gone down that route, there is usually a good reason. 

Having said this, I have on rare occasion had cases where I have suggested mediation at the outset.  These cases typically concerned situations where the parties had an ongoing relationship that it would be to their mutual advantage to preserve and the dispute seemed to arise from a breakdown in relationships between key individuals.  In short, they were textbook examples of the types of situations that can often be successfully mediated. 

In these circumstances, I suggested that the parties might want to consider mediation and explained why – not because I thought the parties had failed to consider it, but to clear my own conscience.  I just didn’t feel comfortable moving ahead with the arbitration without disclosing to them that I thought mediation might well allow them to reach a more constructive outcome more quickly and more cheaply.

12. In your view, what makes CPR unique?

CPR is a think tank that general counsel created 40 years ago to find ways to prevent disputes and promote the efficient resolution of any disputes that do arise.  Through CPR, in-house counsel, practitioners, neutrals and academics collaborate to find innovative solutions to some of the field’s most vexing problems.  It is CPR’s members who develop its rules to ensure that they are always in sync with users’ needs.

13. Do you have an anecdote you would like to share?

My decision to leave New York and go to the ICC was more fraught than one might initially assume.  While I wanted to move to Paris and specialize in arbitration, it also required me to step outside my comfort zone.  Apart from a college year abroad at Cambridge, I had never lived outside the US.  My French was rusty (to put it mildly).  Since law school, I had only ever worked in large law firms.  Leaving Big Law in New York for the ICC would mean leaving all my friends.  It would also mean taking a hefty pay cut. 

As it came time for me to take my decision, I started getting cold feet and felt unsure about what I should do.  I called Hans Smit to talk things over.  He listened patiently as I explained my fears and reservations and then said, “Jennifer, will you please just go and lead an interesting life.”  Thanks to Hans, that is what I’ve been doing ever since.

The CPR European Advisory Board Presents: “Meet CPR Distinguished Neutrals Based in Europe: Catherine Peulvé”

The CPR European Advisory Board (EAB) continues its series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A, with Catherine Peulvé, a commercial lawyer and mediator, CPLAW Paris, France.

  1. How did you get your start as a neutral?

I can date my start as a Neutral to the opening in Paris (France) of my law boutique CPLAW in 2007. Indeed, after several years with UK and US law firms (Freshfields Bruckhaus Deringer LLP/Cleary Gottlieb Steen & Hamilton LLP), including practicing abroad, I realized that despite being a lawyer and having gained a huge amount of experience as a litigator, I did not know so much about negotiation and mediation.

2. Who is your dispute resolution hero/heroine?

Charles-Maurice de Talleyrand, he is said to be the “Prince” of negotiators.  He is known for excellent preparation, obtaining and exploiting the necessary information, winning concessions and using lobbying strategies at private receptions: all principles that are still prevalent both around and outside the negotiating table.

3. What is the one piece of advice you would want to give to the younger generation looking for a first appointment as neutral?

“Give me six hours to chop down a tree and I will spend the first four sharpening the ax, ” said Abraham Lincoln, former president of the US. Thinking about this sentence, my advice to the younger generation would be learn how to learn and improve before doing. In other words, they must be well prepared. You can work hard as a neutral during sessions, but the magic happens when you have spent time preparing, structuring the process and perfecting your skills.

4.   Were you ever the first in doing something?

–     First women president of the Association for Business Lawyers (ACE) – Paris Section
–     First lawyer in my family
–     Winner of the Freshfields – Les Echos prize that launched my international career
–     Major of my student promotion at the Master’s Degree in Business and Economic, University of Panthéon Sorbonne Paris (1990)
–     Head of list of the ACE business lawyers for the election of the French National Council of Bars (CNB)

5. What makes your conflict resolution style unique?

I have been described, when appointed in a major, long-lasting, multi-dimensional mediation concerning a conflict that had been made public by the other side, as an outstanding mediator that managed the whole process in an extremely efficient manner, both in terms of ensuring the overall tone of the mediation and keeping the mediation on track over time.

My style is facilitative and I combine self-confidence with a sound command of the mediation framework, techniques and tools.

I invest time in training, keeping abreast of new tools that may enrich my practice.

6. What was the most difficult challenge you faced as a neutral?

The absence from the mediation table of a key family member in a complex inheritance and partnership dispute involving a real estate company. One of the sisters was  represented by her husband.  There was an uncomfortable atmosphere (the sister was kind of a “ghost” in the mediation), and I felt like the sessions were being recorded but I could not raise this issue upfront.

7.   What is the most important mistake you see counsel make?

Pleading their case rather than adopting a less adversarial style.

8.   If you could change one thing about commercial mediation [please chose one], what would it be?

Compulsory mediation: the French law of 23 March 2019 which reformed the justice system, introduced two new rules for amicable ADR: the principle of compulsory prior mediation in certain disputes and the possibility for any judge, in any matter, to order the parties in dispute to meet with a mediator. While the second option is a potentially interesting path, I regret the inclusion in our legislation of the first option (compulsory mediation), even on an experimental basis, for a number of reasons. It is inconsistent with the principle that the parties must be willing to mediate, particularly in commercial disputes, bringing them to the table before they are ready is unlikely to be beneficial.  Compulsory mediation undermines the principle of confidentiality which is the backbone of the success of mediation.  It is for the parties alone to determine the application of confidentiality obligations to their process, including with respect to the content and the outcome of the mediation as well as its existence. Making mediation compulsory obliges the parties to make the existence of their process public.  The new requirement could be counterproductive: for example, if the parties do not reach an agreement, it will obviously be very difficult to convince them to go to “real” mediation.

9.   Some specific topics:

What is your approach to cybersecurity and data protection in international dispute resolution?

Data security is important in all matters, including in dispute resolution. With respect to international dispute resolution, one must not only be cognizant of the requirements under the European General Data Protection Regulation but also of requirements in territories other than Europe and how the two sets of requirements operate (or not) in combination. As far as cybersecurity is concerned, we need to be attentive to protecting the confidentiality of information shared (arbitration and mediation, plus caucus confidentiality in mediation) and to choose the right tools to achieve that. So far as I am aware, CPR has been at the forefront of several pioneering initiatives in the field of cybersecurity and data protection over the past few years. 

10. What do you see as the next “big thing” in global dispute prevention and resolution?

The impact of the Singapore Convention on international business mediation.  I would like to share links to an abstract of an article I contributed to recently with other lawyers (French, Italian, Lebanese, Greek) on this subject : https://www.actualitesdudroit.fr/browse/civil/procedure-civile-et-voies-d-execution/26916/the-impact-of-the-singapore-convention-on-the-international-business-mediation

http://giustiziacivile.com/arbitrato-e-processo-civile/approfondimenti/limpatto-della-convenzione-di-singapore-sulla-mediazione

11. For which types of conflicts would you recommend mediation?

I think there are several good reasons for opting for mediation in business disputes:

–     Long term relationships can generally be maintained
–     Confidentiality is preserved
–     Offers an exit from a deadlocked situation
–     Helpful if the legal background is complex or there is a lack of proof
–     The financial consequences of the conflict would be too high to risk in litigation
–     It is a matter of urgency

There are also good reasons for NOT initiating or stopping a mediation process :

–     Bad faith of one of the parties
–     A third party is missing (ex. insurer)
–     A third party does not want to change its position/demand
–     A judicial decision is needed (Public order, precedent, publicity…)

12. In your view, what makes CPR unique?

Before I joined, I was impressed by CPR’s reputation and amazed by its detailed and accurate communications on several ADR issues worldwide. Since joining, I have been convinced that CPR possesses the appropriate skills, tools and talents for being a major ADR Center and I have been impressed with its reactivity to the Covid-19 crisis.  In particular, with the training webinars, information sharing, messages to Neutrals to stand together and find solutions.

CPR = energy + information + sharing + adaptability

13. Do you have an anecdote you would like to share?

I was once asked by a mediation Center to draft a default report because one of the parties refused to enter into the mediation process.  I was able to transform the situation into a fruitful and effective mediation, that ended with a successful and long term agreement between the companies.

I have been asked sometimes to give my tips on how I achieved this turn around. Although it is quite difficult to answer that question, I can share the following : (i) I urged the party not wishing to enter into the mediation process to be present at this meeting, and to be represented by one of its top guys; (ii) I was careful to ensure my attitude was very optimistic when meeting with the parties; (iii) I started to explain the rules and purpose of a mediation process.  Finally, the top guy, who made the effort to come and who had spent some time listening to what a mediation process entailed, probably understood that it was worth trying. Once we had reached that stage as part of the same meeting, I was meticulous about structuring the process (number of meetings /topics on the agenda / topics per meeting / participants and experts per topic…) and the rocket was launched to go for exploration.

The CPR European Advisory Board Presents: “Meet CPR Distinguished Neutrals Based in Europe: Piotr Nowaczyk”

The CPR European Advisory Board (EAB) continues its series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A with Piotr Nowaczyk.

Piotr is based in Warsaw.  In addition to being a CPR Distinguished Neutral, he is a chartered arbitrator, advocate, the former president of the Court of Arbitration at the Polish Chamber of Commerce, a former member of the ICC International Court of Arbitration and a member of the VIAC Advisory Board. https://whoswholegal.com/piotr-nowaczyk

How did you get your start as a neutral?

In 1998 I was included on the roster of VIAC arbitrators and at around the same time I was appointed by the Court of Arbitration at the Polish Chamber of Commerce and recommended by the ICC Polish National Committee.  I believe my background as an ex-judge, advocate admitted in Poznan, Paris and Warsaw, partner at Salans (legacy firm of Dentons) and polyglot with an international background was helpful and has led to over 350 arbitration appointments in the last 20 years.

Who is your dispute resolution hero/heroine?

Pierre Karrer, Robert Briner and Eric Schwartz. 

Starting with the youngest (Eric Schwartz):  In 1991 I came to Paris, having been invited as a visiting lawyer by the Law Offices of S.G. Archibald.  Eric Schwartz was leading the arbitration practice there, together with Sarah François-Poncet.  He was an arbitrator in the dispute over the Egyptian Assuan Dam.  For me, a newcomer from Poland, it was my first introduction to a large-scale arbitration.  Later, our paths crossed many times.  Eric became Secretary General of the ICC Court of International Arbitration.  He wrote, together with Yves Derains, a Commentary on the ICC Rules of Arbitration.  About 12 years later I became a member of the ICC Court.  Eric became a partner at Salans Herzfeld & Heilbronn, where I was also a partner.  I organized his meetings and lectures in Warsaw.  To this day, I admire his calmness and composure.  He always speaks quietly and calmly about the most difficult matters.

Pierre Karrer was my favorite colleague among the members of the ICC Arbitration Court.  We usually sat side by side around the oval table at the court’s monthly plenary sessions.  I admired his comments on draft awards.  They were always light, accurate, often witty, and at the same time positive, even if critical.  We served as arbitrators on a few occasions and he gave me some practical advice.  For example, he advised me to separate the parties’ submissions.  He put the claimant’s submissions into the green file (“because, as at the pedestrian crossing, the claimant always wants to go forward”), and the respondent’s submissions into the red file (“because the respondent usually tries to stop the proceedings”).  The papers produced by the arbitral tribunal and the arbitral institution he assembled in a yellow binder.  In his house, he showed me specially designed shelves on wheels.  Each of them contained binders of documents regarding a particular case.  He moved them easily across the floor.  The files were bound in soft binders (“because they don’t damage the inside of the traveling suitcase”).  He gave me a lot of good advice. He said, “Piotr, if I have one dollar and I give it to you, it will be your dollar, not mine anymore. However, if I give you an idea or give you a thought, it will be mine and your thought, mine and your idea”.  He shared countless ideas and thoughts with me.  His famous multilingual Glossary of Arbitration and ADR was developed and expanded in Warsaw to include arbitration terminology in Czech, Polish and Russian.  It was my idea, his idea, our idea, my thought, his thought, or our common thought.

Robert Briner was the President of the ICC Court when I became a court member for Poland. He was one of the giants of international arbitration, a man of slightly old-fashioned ways, a gentleman always holding fast to his principles.  His three full terms of office making nine full years as president of the world’s biggest court of arbitration had left an indelible stamp on this institution.  He was an elegant, distinguished man, sparing in word and gesture.  He was ready to advise anyone who asked for his advice, in the simplest way possible, discreetly and briefly, sometimes in one sentence.  When the Polish National Committee put forward my candidacy for the ICC Court membership, I asked Robert Briner what he thought of it.  He looked me in the eye and asked: “Why hesitate?”  It’s difficult to forget that conversation which took place many years ago in a very unusual setting. We were both watching a pair of koalas in an Australian eucalyptus wood during a break at the annual congress of the Union Internationale des Avocats.

What is the one piece of advice you would want to give to the younger generation looking for a first appointment as neutral?

It is not easy to start out as an arbitrator.

Arbitrators are late starters.  At first, you have to establish yourself as a barrister, solicitor, judge, academic, diplomat, businessman, politician or expert.  So, it is only later in life that you would typically become an arbitrator.  Young legal eagles tend to champ at the bit, eager to get their first case.  A rude awaking often comes at the first interview when they have to field these brutal questions: “How often have you acted as arbitrator?” “How many awards have you made?” “What is your experience with arbitration?

The young hopefuls are stumped for an answer.  Imagine a patient asking a budding orthopedic surgeon eager to perform his first knee operation: “How many knee operations have you conducted, doctor?”  If the flustered doctor says, “Not even one, but I’d love to make a start,” the patient will go to see a real specialist, preferably one with more than 100 knee operations to his name.

There is no clear recommendation on how to get the first appointment.  David Rockefeller published the book “How to make a million dollars”.  In the preface he stated: “from this book you will learn how to make the second, the third or the fourth million…”.  I would rather not mention his advice on how to get the first million!  Young people are often attracted to arbitration because it offers the opportunity to publish articles, go to conferences and take part in the Vis Moot.  Many of the famous arbitral institutions sell modular training courses scaling up from introductory to advanced, from domestic to international and so on.  I would caution aspiring young arbitrators, completion of such courses does not necessarily mean that appointments will automatically follow.  Young lawyers can include an arbitration clause in every contract drafted and act as a counsel or administrative secretary.  One day, someone will offer an appointment as an arbitrator.  Currently, we have more participants in arbitration conferences than there are arbitration cases on this continent.  Telling young people “under 40” that they are well prepared and will replace us all one day is only partly true.  Parties still prefer experienced arbitrators who have earned their reputation with years of impeccable professional activity.  The patient prefers an experienced surgeon, not a young one, who is eager for the first surgery in his life.

Were you ever the first in doing something?

Yes, I was the first Polish advocate admitted to the Paris Bar back in 1993.

What makes your conflict resolution style unique?

I would like to think it is my intuition.

What has been the most difficult challenge you have faced as a neutral?

Initiating disciplinary proceedings against three young counsels who were intent on seizing my personal bank account to cover their fees in case they lost the arbitration case.

The counsel were defending the family business of one of them.  I was an arbitrator nominated by the claimant.  From the beginning, the counsel treated me as their number one enemy.  They also tried to seize the chairman’s bank account.  We learned about their activities in the middle of the proceedings.  At the hearing, we informed the claimant because we were concerned that doubts may be raised as to our impartiality and independence.  We completed the arbitration and passed a fair award, mostly in favor of these rogues.  We initiated disciplinary proceedings immediately after the award was delivered.  It lasted 5 years and resulted in discontinuation due to the statute of limitations.  The young counsel made friends with the dean of the local bar council. They became his friends and helpers, to the point of becoming members of the local bar council.  They became almost untouchable.  Time went by, and the bar members, including the dean, acting as disciplinary prosecutors dragged out the proceedings to such an extent that the claim ultimately became time barred.

What is the most important mistake you see counsel make?

Typically, they file too many documents and charge too many billable hours!

Now let’s turn to some specific topics:

  1. What is your view on the duration of arbitration proceedings?

Arbitration is like a pregnancy.  It should not be aborted or last longer than 9 months.  Every dispute can be managed within 9 months. It all depends on the energy, proactivity, devotion and dedication of the arbitral tribunal.  One of our roles is to combat delays provoked by counsel.  Unfortunately, counsel want to have as much time (billable) as possible and produce endlessly long submissions.  Counsel for the conflicting parties are able to agree on a highly extended provisional timetable, and then want to impose it on the arbitral tribunal.  Weak arbitrators spread their hands and say: “It is the parties who are the hosts of the dispute. We have to accept their joint proposal”.  I ask the co-arbitrators then: “If they are the hosts, then who the hell are we, the arbitrators? Guests?”

2. With respect to the taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?

Prague Rules are much simpler and tailor made for Eastern and Central Europe.

What do you see as the next “big thing” in global dispute prevention and resolution?

The big problem is arbitrators’ safety.  It is time to think about arbitrators’ immunity and an international convention to grant it.

For which types of conflicts would you recommend ADR?

I think you can use ADR for all types of conflicts, with very few local exceptions.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Fatos Lazimi”

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.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Bart Neervoort”

bart

The CPR European Advisory Board (EAB) continues its series, “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its fourth Q&A, with Bart Neervoort, from the perspective of a mediator.

Bart is an international trial lawyer turned full-time mediator and arbitrator, based in the Netherlands.  Over the last ten years he has handled disputes in diverse areas including construction, shipbuilding, professional negligence, medical malpractice and shareholder disputes.  He has been an arbitrator for NAI, ICC (Paris), UNUM (Rotterdam), LCIA (India) and CIETAC (China).  These days his practice focuses on mediation and he is a certified mediator for MfN, IMI, ICC (Paris), CEDR (London) as well as a CPR Distinguished Neutral. 

How did you get your start as a neutral?

As a committed litigator I was skeptical when the High Court in London suggested mediation in a case I was involved in before the case actually went to trial. I was more than surprised that the case settled in a day!

Who is your dispute resolution hero/heroine?

Among many others, I would say David Hoffman and Michel Kalepatis. David’s teaching at Harvard’s Summer School left me and other experienced mediators in awe as he demonstrated how to overcome the most challenging of deadlocks and keep the most difficult people at the table. And Michel is simply the Godfather of mediation in Europe!

What is the one piece of advice you would want to give to the younger generation looking for a first appointment as neutral?

Don’t be too keen as a mediator on reaching resolution. When you start mediating, you tend to think settlement is your success and failing to reach agreement is your failure. My experience has been that one can overstretch your skills if you are too eager. Let the parties do the work. It is their process. You are there to guide them. Keep in mind, it is their resolution, not yours and their problem if they do not resolve their dispute.  Finally, don’t boast about your success rate.  Remember, you are there for the parties.

Were you ever the first in doing something?

Yes, I was the first Dutchman to do an ICC mediation (between a UN Body and a Greek party).

What makes your conflict resolution style unique?

I would like to think, that showing my own vulnerability to the parties works well.  Also, my sense of optimism about the outcome of the dispute and, of course, humor always helps!

What has been the most difficult challenge you have faced as a neutral?

Mediating between two very stubborn 88 year old shareholders!

What is the most important mistake you see counsel make?

They often fail to realize that in order to reach settlement at mediation it is extremely unhelpful to position oneself as the “opposing side.”  Settlements are reached together.

If you could change one thing about commercial mediation, what would it be?

I would make mediation advocacy compulsory in lawyers’ training programs.

Now let’s turn to a specific topic: what is your approach to cybersecurity and data protection in international dispute resolution?

I believe the dangers are currently underestimated and neutrals should have proper protection in place and be accountable for that to the parties.

What do you see as the next “big thing” in global dispute prevention and resolution?

Dispute prevention being recognized for what it’s worth in all layers of the business community. Resolution of disputes by the parties themselves being recognized by lawyers as something that is really beneficial for their clients.

For which types of conflicts would you recommend ADR?

I believe you can use ADR for almost any commercial or corporate dispute.

In your view, what makes CPR unique?

The way in which it has been able to mobilize both the corporate and legal US communities to draw up Dispute Resolution Pledges and offer a forum for ADR. If only CPR could reach the same standing in Europe!

Do you have an anecdote you would like to share?

A Greek almost tragedy that ended well! In an international mediation between a German and a Greek party, the latter and his lawyer made it difficult for the other party and the mediator. The lawyer, when asked in caucus what his client’s BATNA was, said he had no idea and saw it as his task to bring forward his client’s arguments as if in litigation, not to advise on a possible outcome of a court case. His client rejected what was on offer, said “no” and closed his folder. He said “no” a second time, putting his file in his briefcase and repeated his position a third time as he left the room. Finally, in an improvised caucus in the hallway the client made a counter-proposal with only minor changes, which was acceptable to the other party. Multicultural mediation. I love it.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Mauro Rubino Sammartano

183The CPR European Advisory Board (EAB) continues it series “meet CPR’s Distinguished Neutrals in Europe” and today it presents its third Q&A with Mauro Rubino Sammartano.

Mauro Rubino Sammartano (pictured) is a partner in the Italian law firm Law Fed based in Milano.  Mauro sits as an arbitrator in commercial and investment arbitrations. His wide experience includes advocacy in Italy and in Paris, being an associate tenant of a London set of Chambers for many years, and a Recorder and Deputy Judge in Italy.  He has been involved in arbitration for about 30 years more recently, in mediation.  Mauro is also chair of the European Court of Arbitration and the Mediation Centre of Europe, the Mediterranean and the Middle East.  He lectures on arbitration and mediation and is the author of several textbooks and articles on topics of international arbitration.

Mauro kindly agreed to grant us an interview for the third blog piece of our series profiling CPR Neutrals in Europe.  Here are his insights:

How did you get your start as a neutral?

I have come to arbitration by acting as counsel in large international construction projects. I enjoyed arbitration and started studying it. I had been involved in construction matters for some time when I received my first appointment as arbitrator in a construction dispute.   I really liked it; I saw similarities with my prior activities as Recorder and then as a Deputy Judge in Italy.

Dealing with ADR, I realized that the top priority for litigants is to avoid or at least to narrow the scope of a litigation. I therefore started to deepen my knowledge of mediation, I have now become a trainer in mediation and the chair the Mediation Centre for Europe, the Mediterranean and the Middle East.

Who is your dispute resolution hero/heroine?

Hans Smit, Columbia University, for having handled an arbitration proceeding extraordinarily fast, which remains a rare example in commercial arbitration.

What is the one advice you want to give to the younger generation looking for a first appointment as neutral?

Study international arbitration and write about it.  It will transpire from your conduct whether you practice in this field because you like it, or it is just a business opportunity for you.

Were you ever the first in doing something?

Probably I was the first (i) to introduce in 1997 in the rules of the European Court of Arbitration, sections providing for an appellate arbitral tribunal in commercial arbitration and (ii) to stress the duty of an arbitrator to act “with humanity and humility.

What makes your conflict resolution style unique?

I have noticed, through my various contacts on the international level, that a frequent complaint against arbitrators is that they remain distant from the parties, do not always know the file well and seem willing to spend the least possible time on the dispute. To me, the duties of an arbitrator are exactly the opposite: the arbitrator must be available to the parties, study the file well and devote to it all the necessary time. This approach amounts to acting in a spirit of service. My approach to arbitration is this one.

What was the most difficult challenge you faced as a neutral?

In my early days, to my great surprise, I had to refuse a top appointment because the appointor was clearly expecting that the party-appointed arbitrator would act for it.

Another difficult challenge to me is that there is not always enough discussion within the panel, each arbitrator tending to go his/her way. Discussions and even better, a very frank discussion, seem to me essential for the arbitrators to reach the best possible solution.

What is the most important mistake you see counsel make?

The most important mistake which in my opinion too many counsels make, is to keep repeating themselves in all their pleadings and/or discussions. This is likely to produce the risk that the arbitrator does not read at length all the passages in which he/she finds a clear repetition and sometimes in the middle of such repetition there could be anew sentence or word which might have helped that party’s case.

Another mistake is to insist on a hopeless argument. In general, counsel should not ignore what transpires from the conduct of the arbitrators and the opposing party and adjust – if needed – his/her line of defense.

If you could change one thing about commercial arbitration, what would it be?

A frequent negative view of commercial arbitrators is that they concentrate on showing how good they are and on writing a brilliant piece of legal literature.

Another very negative aspect for the image of arbitration consists of frequent appointments made just because of the “esprit de copinage”.  This leads some arbitrators not to share their position fully with the other members of the panel by fear of making them unhappy and jeopardizing the possibility that they could appoint him/her on other occasions in the future.

In your view, what makes CPR unique?

What to me makes CPR unique is the message that it conveys: it shows that CPR has neither a self-serving nor a commercial purpose and its Rules illustrate its goal of understanding the needs of the parties and to find way to address and accommodate them.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Tsisana Shamlikashvili

Tsisana Shamlikashvili

The CPR European Advisory Board (EAB) continues its series, “Meet CPR’s Distinguished Neutrals in Europe,” and today it presents its second Q&A, with Professor Tsisana Shamlikashvili, centering around the theme of “Mediation in the 21st Century.”

Tsisana is a Moscow based, international expert in ADR.  She focuses on mediation and was responsible for initiating and supporting the institutionalization of mediation in Russia, founding the Center for Mediation and Law in 2005.  Her mediation/neutral practice covers a wide range of cases from complicated cross-border commercial disputes to family conflicts, as well as intellectual property, workplace, financial, personal injury and medical malpractice disputes.  She is currently president of the National Organization of Mediators (NOM), academic chair of the Federal Institute of Mediation, founder of the Scientific and Methodological Center for Mediation and Law, Chair of the Subcommittee on ADR and Mediation in the Russian Association of Lawyers, founder, publisher and editor-in-chief of the magazine “Mediation and Law”, and head of the Mediation Master’s Program at MSUPE. [https://mediacia.com/en/founder/]

By Kathleen Fadden (consultant with AMGEN) and Vanessa Alarcon Duvanel (King & Spalding LLP) 

How did you get your start as a neutral?

It has been a lifelong journey towards mediation which perfectly synthesized my professional background and experience.  Understanding how imperfect traditional ways of addressing conflict are and how much harm we can avoid using mediation as a preventive approach made me start the journey.

Who is your dispute resolution hero/heroine?

I strongly believe that each person who finds enough courage to step into a dialogue with his/her opponent has to be supported and professionals who assist in these complex situations are heroes and heroines too.

What is the one piece of advice that you would want to give to the younger generation looking for a first appointment as neutral?

To be consistent and persistent, to stay humble and maintain curiosity.  Always be ready for the unexpected.  Be surprised about what won’t happen!

Were you ever the first in doing something?

Yes, indeed.  Development of mediation and its institutionalization in Russia was initiated by me, as was ADR implementation generally.

What makes your conflict resolution style unique?

Each mediator is unique and each mediation is unique.  My preference is to facilitate parties in their efforts to resolve the conflict, to find an exit out of dispute which will provide the parties with a mutually acceptable future.  This means possessing the ability to use different models of mediation in each case or even a blend of the models to achieve the best result.  The main thing is to follow the key principles of mediation as a modern tool to address the conflict and to develop conditions so that the parties in the conflict are empowered.

What has been the most difficult challenge you have faced as a neutral?

There are difficulties and dilemmas in almost every case.  Ethical dilemmas are often the most complicated to resolve.  For example, how should a mediator behave when he/she holds information crucial for settlement of the case but one party does not want to share the information with counterparts and does not wish the mediator to do so either or even have any direct discussion about the topic?

What is the most important mistake you see counsel make?

The biggest mistake counsel can make is to fail to give the represented party a real voice, view or opinion at the hearing.

If you could change one thing about commercial arbitration, what would it be?

It would probably be the introduction of a two to three hour compulsory informative session regarding mediation and the requirement to include a mediation clause in most contracts.

Now let’s turn to a specific topic: what is your approach to cybersecurity and data protection in international dispute resolution?

We have to be very attentive to potential vulnerabilities caused by the use of technology and indeed follow all data protection rules in every context, domestic and crossborder.

What do you see as the next “big thing” in global dispute prevention and resolution?

I think one of the next “big things” is the wider use of mediation.  Citizens, societies, corporations and states developing a real culture of dialogue to prevent conflict when disputes occur.  We should deploy all possible efforts to make that happen.  Thinking about new trends in dispute resolution, ODR deserves a mention.  It is necessary in a global digital world. Today there is an increasing demand for ODR in the court environment.  Hopefully, in time, the private sector in B2B / B2C transactions will understand the benefits of such tools not only in e-commerce and not just in the cross-border context. In recent weeks we’ve already witnessed a growing demand for ODR and mediation using tech platforms. Mediation will be one among other preventive tools in times of crisis for disrupted businesses.

For which types of conflicts would you recommend ADR?

In most cases, ADR and specifically mediation, offers parties more advantages and opportunities to resolve disputes with the best possible outcome because control is in the hands of the parties.  ADR can be used in commercial cases, IP cases, construction/development, insolvency, medical malpractice, personal injury etc.  There are very seldom cases when mediation cannot be used and of course, sometimes, it can be combined with other ADR modes.  For instance, recently there has been growing interest in hybrid procedures such as MED-ARB/ARB-MED.

In your view, what makes CPR unique?

CPR is one of the oldest organizations, established to change the dispute culture and promote ADR in business/economic environments as well as in society as a whole.  CPR is trying to approach and involve all stakeholders even if they have conflict of interests.  The CPR pledge for corporations and law firms was one of the key factors which increased awareness of ADR and spawned a demand for use of ADR.  Last, but not least, CPR has gathered the most experienced ADR professionals/neutrals.

Do you have any concluding remarks you would like to share?

The contemporary world needs dialogue and inclusion at all levels of society now more than ever in human history. In times of crisis and total threat to fundamental human rights, interference with private life, radical shifts within social life and familiar modes of communication, mediation can empower individuals, make their voices heard in a constructive way by others, especially by decision-makers.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Bernardo M. Cremades Sanz-Pastor”

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Bernardo M. Cremades Sanz-Pastor

The CPR European Advisory Board (EAB) is proud to introduce its new CPR Speaks blog series: “Meet CPR’s Distinguished Neutrals in Europe.”  CPR’s panel of neutrals contains many experienced and skilled Neutrals, acting as arbitrator and/or mediators in dispute resolution around the globe.  Through a Q&A, covering some of the main and hot topics discussed in the world of international disputes resolution, this new blog posts series offers you an insight into the views of some of Europe’s leaders in the field. 

Bernardo M. Cremades Sanz-Pastor is the first Europe-based CPR Distinguished Neutral to have answered our Q&A. Enjoy the read and please feel free to reach out to the featured Distinguished Neutral or the authors of these posts for any questions.

By Kathleen Fadden (consultant with AMGEN) and Vanessa Alarcon Duvanel (King & Spalding LLP)

Bernardo Cremades is the founding partner of Spanish law firm B Cremades y Asociados based in Madrid.  He is without doubt a pioneer in the field of international arbitration and enjoys world-wide recognition.  His experience includes international commercial and investment arbitration.  He regularly acts as arbitrator in Spanish domestic and international disputes relating to commercial contracts and investment protection.  In addition, Bernardo regularly speaks at conferences on topics of international arbitration around the world.  As a commercial lawyer was involved in some of Spain’s most important M&A transactions.

Bernardo kindly agreed to grant us an interview for the CPR EAB blog series profiling CPR Neutrals in Europe.  His insights are a must read for anyone regardless of the level you find yourself in your career. We thank Bernardo Cremades for his honesty and the time he has dedicated to sharing his experience and insights.

  1. How did you get your start as a neutral?

When I was young, I lived a very quiet life dedicated exclusively to university teaching and research.  Despite my youth, the Court of Arbitration of the International Chamber of Commerce nominated me to preside over an arbitral tribunal in Vienna, in the proceeding known by its Parties NORSOLOR v. PABALK.  It was a commercial dispute regarding a purchase-sale and technical assistance contract between a Turkish and a French company.  As the arbitration was taking place in the city of Vienna, and no contractual provision gave the arbitral tribunal further powers, we had to arbitrate in law. The contract did not specify the applicable law, so the option of applying French or Turkish law was not possible as we would have reached diametrically different conclusions depending on which one was selected. This was not satisfactory. We thought the best solution would be to apply the general principles of law, invoking the Lex Mercatoria. Once the arbitration award was issued, one of the parties appealed for the annulment of the award before the Austrian courts, eventually reaching the Supreme Court. The argument in support of the annulment was that a tribunal, which was obliged to render a decision in accordance with the law, had used the general principles of law. In the challenging party’s opinion, this converted an arbitration in law into an equity decision. The Supreme Court understood that, in international law, the general principles are a source of law and, therefore, considered that our arbitration decision was correct. When one of the parties subsequently attempted to execute the award in Paris, the same problem arose: the argument was that our decision converting the arbitration into one in equity violated public order. It reached the Court of Cassation, which reiterated the doctrine admitted by the Austrian Supreme Court: the application of the Lex Mercatoria did not transform the arbitration; it remained de jure due to the legal nature of the general principles of International Law [Soc. Pabalk Ticaret Ltd Sirketi v. Soc. anon. Norsolor, Cour de Cassation (1re Ch. Civ.), 3 October 1984′, Journal of International Arbitration, (© Kluwer Law International; Kluwer Law International 1985, Volume 2 Issue 2) pp. 67 – 76]. Our decision sparked numerous doctrinal opinions and generated a lively debate. My quiet, academic life transformed into an active professional life dedicated to the world of arbitration.

  1. Who is your dispute resolution hero/heroine?

In an arbitration between the company FIAT and the Government of Spain in which the future of the SEAT car factory was discussed, I was fortunate to work with a co-arbitrator who would mark my arbitration conduct in the future. I am referring to Berthold Goldman, who can undoubtedly be considered the father of modern international arbitration. After the different hearings we held with the parties, the tribunal deliberated at length. Berthold Goldman defended with passion the claims of the FIAT company until the President tipped the balance in favour of my views. From that moment, Professor Goldman’s enthusiasm became an example of chivalry as he took me by the arm through one of the halls where we were deliberating and told me: “you have won, and you can rest assured that the arbitration award is going to be issued by unanimity.” This is an example that I have always remembered when faced with the temptation to issue a dissenting opinion.

  1. What is the one advice you want to give to the younger generation looking for a first appointment as neutral?

Join a team and learn the profession of arbitrator, acting as secretary to the tribunal, or as counsel under the direction of an experienced arbitrator. Time will make you an arbitration expert, able to consider flying solo.

  1. Were you ever the first in doing something?

 The award mentioned above in response to the first question where we invoked the Lex Mercatoria as the applicable law opened a wide discussion and generated controversial points, especially in the debate between arbitration experts of Anglo-Saxon and continental law.

In the ABBOTT vs. BAXTER dispute, under CPR administration, we based our decision on good faith when the applicable law was that of Ontario (USA) [Baxter Int’l Inc. v. Abbott Labs., 540 U.S. 963 (2003)]. This is what we understood from an international litigation on trademark law and the award was ratified by the US Supreme Court.

In the HESHAM TM AL WARRAQ arbitration against the Republic of Indonesia [Hesham T. M. Al Warraq v. Republic of Indonesia, UNCITRAL, Final Award, 15 December 2014], we used as a basis to accept jurisdiction, the ICO (Organization of Islamic Cooperation) Treaty, the second largest intergovernmental organization. Our decision set a precedent for numerous subsequent arbitrations.

In the world of investment arbitration, the LANCO case against the Argentine Republic opened the door to investment protection arbitration in cases where the arbitration agreement consisted of the public offer for submission to arbitration by the receiving State of the investment, and for the legitimate investor to initiate an arbitration proceeding for the alleged breach of the treaty by the receiver of the investment [Lanco International Inc. v. The Argentine Republic, ICSID Case No. ARB/97/6]. In this arbitration, different issues were raised that will later be the subject of numerous awards, such as the principle of attribution of responsibilities to the State regarding breaches of intra-State public entities.

The SALINI arbitration against the Kingdom of Morocco extended the concept of investment to administrative concessions [Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4]. Investment protection arbitration had been specially designed with a view to litigation derived from investments related to natural resources. After SALINI, the concept of investment protected by arbitration grew.

In the LUCCHETTI arbitration against the Republic of Peru [Empresas Lucchetti, S.A. and Lucchetti Peru, S.A. v. The Republic of Peru, ICSID Case No. ARB/03/4], arbitration protection was questioned when corruption was involved in making the investment, on the grounds that those whose hands are stained should not be subject to any international protection, including arbitration.

  1. What makes your conflict resolution style unique?

As in any profession, I believe that it is most important to be well educated and then to devote many hours to preparation. The arbitrator must read all the submitted documents carefully and be able to respond to the parties’ requests. There is nothing worse than storing the documentation and only dealing with it when the time comes for the hearing. Many arbitrations are unnecessarily lengthy because the arbitrators do not know the substance of the matter sufficiently well to make decisions as proceedings progress.

  1. What was the most difficult challenge you faced as a neutral?

The main challenge of the arbitrator today is to expedite the proceeding.  Today arbitration has ceased to be the artisanal activity it was many decades ago. We are facing a large arbitration industry.  To prevent that the proceedings be excessively long, the arbitrator must coordinate the agendas of the parties and their lawyers; respond promptly to excessively large document discovery requests; and try to minimize the duration of the hearings. The theatricality of certain “cross-examinations” should also be interrupted when deemed unnecessary and the abundance of witnesses and experts is sometimes unnecessary.

  1. What is the most important mistake you see counsel make?

In the written phase, counsel can write excessively long and repetitive documents, when they should perhaps concentrate their efforts more on writing an executive summary for ease of reading. In the oral phase, counsel often forgets that his or her main mission is to convince the arbitrators and not to be so aware of the transcript or the client present in the meeting room.

  1. If you could change one thing about commercial Arbitration, what would it be?

Every effort should be made to reduce the duration and the excessive costs (that can sometimes be scandalous) of arbitration proceedings.

  1. Some specific topics:

    a) What is your approach to cybersecurity and data protection in international dispute resolution?

 The requirements of cybersecurity and data protection in arbitration require both lawyers and arbitrators to strengthen the technological infrastructure of their firms. Before, during and after the arbitration there are security and protection rules that must be firmly maintained as arbitration frequently deals with very sensitive topics requiring strong guarantees.

b) Taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?

The IBA Rules emerged – and I can testify to this since I was part of the drafting team of the first version – as a result of a real need to unify criteria between common law and continental law jurists. It is rare to see an arbitration proceeding today without, at least, a reference to the IBA Rules, which have become a true customary international procedural law. In fact, there is much talk about the Prague Rules in conferences and colloquiums, but I have never seen them applied or invoked in arbitration proceedings. The authors of the Prague Rules wanted to draw attention to the excessive costs and duration of the arbitration proceedings and they can serve as a wake-up call in the daily life of our arbitrations or even be taken into account when modifying the IBA Rules in the future, giving greater space to criteria from civil law legal systems. The message of the Prague Rules is very interesting, but in practice its application should be questioned, simply by analysing the fourth paragraph of its first article when it states that “At all stages of the arbitration and in implementing the Prague Rules, the arbitral tribunal shall ensure fair and equal treatment of the parties and provide them with a reasonable opportunity to present their respective cases.”  If the aim with these rules was to avoid the due process paranoia, different articles of these rules, such as the aforementioned article, question their effectiveness – which is why arbitrators are reluctant to use them. It cannot be forgotten that the purpose of the IBA Rules was limited to the taking of evidence, while the title of the Prague Rules is “Rules on the Efficient Conduct of Proceedings in International Arbitration”.

  1. What do you see as the next “big thing” in global dispute prevention and resolution?

An important event in the world of dispute prevention and resolution is the emergence of third-party funding. Many arbitration proceedings are initiated today because the claimant and possibly the defendant have funding to undertake costly arbitration proceedings and subsequent court proceedings. Third-party financing is acquiring a very important dimension and is introducing the system of syndicated foreign currency loans to the financing of large litigations. Litigation has become a financial asset, and funders monetize their financing activity with the outsourcing of parts of the financing. Litigation and especially arbitration awards are bought and sold. A true secondary market has been created for the financial assets that arbitrations have become.

  1. For which types of conflicts would you recommend ADR?

I consider that ADR is recommendable for particularly personalized disputes. In terms of investment protection, it is unthinkable to reach agreements with sovereign states, which would undoubtedly be analysed in the country in question under the inquisitorial magnifying glass of corruption. I believe that disputes with consumers or those that occur in family businesses are very suitable for resolution through ADR. Equally, agreements between companies whose directors have full powers are good ADR candidates, since the positive result of a conciliation or mediation is only possible when those acting on behalf of the companies have sufficient decision-making capacity to reach a negotiated agreement. In construction disputes and, in general, disputes in which many awards are discussed, dispute boards are highly recommended. The periodic presence of the dispute board members from the beginning of the construction solves many problems that are not intelligible over time.

  1. In your view, what makes CPR unique?

Its speed. Arbitration administration centres have become excessively bureaucratic institutions, with internal policies regarding the appointment of arbitrators which are not always in the best interests of the parties to the dispute. Arbitration administration centres are service companies and as such they must compete with others; their speed of action is probably the most attractive asset to their clientele.

  1. Do you have an anecdote you would like to share? 

There is much talk about the clash of cultures in international arbitration and it is undoubtedly greatly exaggerated. I remember many years ago at the meetings of the former ICCA, the representative of China, the famous and much-loved Professor Tang, insisted that I should participate in arbitrations in China to learn the difference between how arbitration proceedings are run in different cultures. I was appointed arbitrator under CIETAC to resolve a dispute between a French car company and its distributor in China. Professor Tang presided over the tribunal and from the first day he tried to get the parties to reach agreements under his mediation. On the third day, after seeing that the President’s attempts to mediate between the parties were unsuccessful, both parties formally told us that if they had gone to CIETAC it was precisely for us to resolve their differences in arbitration, and could we please set aside the conciliation and mediation attempts – which we did. It was a good lesson for me that maybe the much talked-about cultural differences are not so true in practice. A good and experienced president of the tribunal should know when he or she can help the parties to reach an agreement and when the limits of arbitration prevent it.