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.

Invitation for an Open Dialogue

A letter and invitation from CPR President & CEO, Allen Waxman

Dear CPR Members and Distinguished Neutrals:
Like many of you, we are frustrated, concerned, angry and sad: because of the grotesque inhumanity evidenced in the death of George Floyd; because the names of George Floyd, Breonna Taylor and Ahmaud Arbery are just the latest in a terrible list of fellow human beings who have had their breaths tragically snuffed out; because of the destruction with which some have responded to that inhumanity; because of the evident and understandable pain of so many; because we are so disconnected; because we haven’t earned that connection. Yet, as a community, we also believe that conflict must breed resolution, and resolution must reinforce our purpose. Our purpose has to be to combat racism, discrimination, implicit bias and injustice. We must commit to the small steps reflected in our initiatives to recruit, promote and select diverse neutrals. And, we must also commit to the giant leaps of trust, courage and sacrifice necessary for change to become reality.  Let us remember the observation that Andrew Young shared with our community in his 2018 keynote address at CPR’s Annual Meeting:  “…in every conflict there is a streak of humanity.”  

This Friday, June 12th, at 12:30 ET, via Zoom, let us come together and connect our humanity. No agenda just a safe space. Let’s open a dialogue together to share.  Our conversation will be moderated by Judge Timothy Lewis, CPR neutrals Erin Gleason Alvarez and Gail Wright Sirmans, and CPR board members: Bayer U.S. General Counsel Scott Partridge, Winston & Strawn partner Taj Clayton, and Debevoise & Plimpton partner John Kiernan.                

For CPR Members and Distinguished Neutrals Only
Contact Richard Murphy at rmurphy@cpradr.org for your registration link

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.

10 Reasons Arbitration Beats Traditional Litigation

Janice_NewBy Janice L. Sperow

  1. Faster

Parties usually get to hearing within a year of filing and even quicker for simpler and expedited disputes whereas a court case will often wend its way through the system for two to five years before trial depending on the jurisdiction. Now add the backlog of closed courts, reduced public funding, criminal case priority, and pandemic-related lawsuits, and arbitration becomes significantly quicker than the court system. Even the decision-making process can be swifter. Most arbitrators render an award within thirty days of closing the hearing, whereas an overworked judge or appellate court may require months to issue a final decision. Traditional litigation’s delay becomes even more troubling when the parties consider the ticking of the pre or post judgment interest clock.

  1. Flexibility

Parties can schedule discovery, c10 Reasons Arbitration Beats Traditional Litigationonferences, deadlines, motion practice, and hearings around their schedule, not the beleaguered, overcrowded court docket. Most arbitrators will accommodate scheduling conflicts and personal plans, whereas the courts expect the parties to work around their calendars. Parties can also narrow the scope of the issues presented to the arbitrator for resolution without the need for a summary adjudication process.

  1. Confidentiality

Parties can ensure confidentiality. Only participants can attend the arbitration because the proceedings remain private unlike traditional litigation open to the public. Even the arbitration filings remain private while anyone can access court filings. Parties may also like the non-precedent setting nature of arbitration, especially if they have similar cases coming behind this dispute.

  1. Affordable

Faster hearings mean lower costs. Instead of the litigation expense mounting over years of protracted conflict, the parties can curtail the amount of discovery, conferences, motion practice, and time to hearing and thereby significantly reduce their attorneys’ fees and costs.

  1. Choice

Parties typically select their arbitrator. They agree upon the decisionmaker of their choice instead of the random assignment of a court judge or the jury pool in traditional litigation.

  1. Expertise

Parties can also choose an arbitrator with specific subject matter expertise, skill, or experience. Especially in highly technical cases, the parties can save a lot of time, expense, and effort when their jurist already understands the landscape. Some parties choose to forgo expert testimony because, unlike the jury, the arbitrator has the specialized knowledge to follow the presentation of evidence without an expert’s explanation.

  1. Simpler

Parties can schedule a quick call with the arbitrator to settle a discovery dispute or email a subpoena request; they do not have to file a costly motion with proper notice. Most arbitrators relax the rules of evidence and eliminate burdensome procedures.

  1. More Predictable

As every seasoned litigator knows, no one can predict how a jury will decide. Arbitrators, however, pride themselves on following the law, applying it to the facts, and eschewing emotional appeals. They remain far less susceptible to sympathy than a jury.

  1. Control

Parties can control the arbitration process either through their arbitration contract or by post-dispute agreement. They decide how much discovery to afford, what law will apply, which procedural rules will apply, where the dispute will be heard, how the dispute will be heard – in person, video conference, telephonic, or documentary – and much more. The arbitrator will implement the parties’ choices as long as they agree. In fact, the parties can amend, modify, or reject most arbitral rules of the forum if they want.

  1. Finality

Parties can only appeal arbitration awards on limited grounds. Accordingly, they can put their dispute to rest and get back to business quicker, faster, and cheaper – something we all want to do as soon as the pandemic permits.

________________________

Janice Sperow is a full-time arbitrator and mediator. She serves as a neutral for the San Diego Superior Court (where she also sits as a Judge Pro Tem), American Arbitration Association, the International Institute for Conflict Prevention & Resolution, the Financial Industry Neutral Regulatory Authority, the World Intellectual Property Organization, the National Futures Association, and the Better Business Bureau. www.janicesperow.com

 

 

 

The views expressed in this article are those of the author(s) and do not necessarily reflect the views of The CPR Institute.

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.

A Letter from CPR President & CEO, Allen Waxman

It has been a month since my last update to you, and certainly much has happened during this strange and challenging time. I hope that you are finding ways to tend, not only to the health of your businesses and professional lives, but also to yourselves personally. While honoring our responsibilities to our companies and clients/customers, I believe it is of paramount importance during this time also to be gentle with ourselves and each other. If it feels difficult, it is because it is difficult! We are trying to take the same counsel at CPR.  Our staff has all been working remotely, and finding ways to connect with each other over diverse platforms.  I now know the look of the kitchens, living rooms or guest rooms of each of my colleagues.  That takes us to a whole new level!

At the same time, I am so very proud of our staff in being true to our mission – managing conflict to enable purpose.  We have continued to offer insightful programming on how to prevent and resolve disputes most effectively during this time while also providing our dispute resolution services.  Your engagement and support (financial and otherwise) for us is more important than ever to enable us to pursue our mission.  Thank you.

I thought I would take this opportunity to review with you some of our activities over the last month.

CPR DISPUTE RESOLUTION REMAINS OPEN FOR BUSINESS

CPR Dispute Resolution continues to operate seamlessly, offering our full suite of dispute prevention and resolution services. Given the backlog in the courts, the time for ADR is now.  DRS’ services, rules and protocols, and Panel of Distinguished Neutrals can help resolve matters efficiently and effectively.

Arbitration – For parties in disputes during COVID-19, you may want to consider converting a pending court case to a CPR Administered Arbitration, or entering (with the other party) into an arbitration clause more appropriate under the circumstances. In both cases, you will need to enter into an arbitration submission agreement with your counterparty. Model language for doing so can be found HERE.

Mediation –CPR’s Mediation Services are also available to assist businesses in these difficult times. You can find more information on these services HERE. In addition, CPR has just announced the upcoming launch of a new COVID-19 Flat Fee Mediation Program, in collaboration with Legal Innovators and FTI Consulting, to resolve disputes below $5 million. That program is being kicked off with a free May 13 webinar.

Dispute Prevention – We have launched a new Dispute Prevention Panel, comprised of neutrals who have the experience to facilitate resolution of a dispute before it becomes a legal conflict.  You can find more information HERE.

Because our offices remain closed, new filers should continue to submit electronically at cprneutrals@cpradr.org, and all payments should be made via credit card or wire transfer (please specify in your cover email how you would like to pay); paper filings cannot be accepted. To send files via Voltage encrypted email, please email herickson@cpradr.org to be authorized.

NEW PROGRAMMING

We recently hosted one of many programs that are part of our COVID-19-related focus, titled “Stability in the Pandemic: Personal, Professional and Global Targets.” This webinar featured renowned academics Lela Love, Professor of Law and Director of the Kukin Program for Conflict Resolution at Cardozo Law School, and Sukhsimranjit Singh, Assistant Professor of Law and Practice and Managing Director of the Straus Institute for Dispute Resolution at Pepperdine University Caruso School of Law. The speakers discussed holistic methods to approach conflict while social distancing, touching on key mediation strategies and self-care techniques to create a positive and conflict-free living and work space. A recording will be available soon and can be found in our “ADR in the Time of COVID-19” section, along with numerous other resources, HERE, and I encourage you to explore and check back often for updates.

SOCIAL DISTANCING – BUT STILL SURGING AHEAD ON ALL FRONTS

CPR continues to forge ahead and grow in numerous other ways I am delighted to share with you.

New Partnerships – CPR recently announced a strategic partnership with the International Association of Defense Counsel (IADC), through which IADC named CPR as a recommended ADR services provider. The IADC will be promoting CPR membership, DRS services, and arbitration and mediation rules to its 2,500 members, which in turn will gain access to valuable CPR benefits, resources and discounts, including CPR membership and other joint programming opportunities. And this collaboration is bearing almost immediate fruit, in the form of our upcoming joint webinar, “Resolving Legal Disputes in the Era of COVID-19.”

Support for Remote Video Arbitrations – Ever responsive to the changing legal landscape, CPR quickly convened a task force that created an Annotated Model Procedural Order for Remote Video Arbitration Proceedings. The model order puts into one, user-friendly document the best practices that the arbitration community needs to navigate remote video hearings. This new model procedure is a perfect example of what CPR can do and does regularly – harnessing the rich insights and vast experience of its membership to create timely and cutting-edge resources that both benefit users and enhance the capacity for ADR, in general.

The Drive for Diversity Continues – Since my last update, CPR also took a further step toward promoting diversity in alternative dispute resolution (ADR) by launching a new clause to be used by parties who wish to pre-commit to a diverse panel of neutrals in a future dispute to be resolved by arbitration. Read the full press release HERE.

New Data Security Resources – CPR continues to take steps to help parties and neutrals address the challenges of maintaining data and cybersecurity in ADR matters. In our new website section, you will find information relating to communicating with CPR on case-related matters, cybersecurity in arbitration and other ADR proceedings, data protection and the CPR online dispute resolution platform, as well as other technology tools and member discounts for e-filing services.

Networking for Neutrals – CPR has continued its role of providing service to the ADR community by convening three Neutrals Forums in different time zones to provide a space for the exchange of questions, learning and best practices for remote proceedings during the time of COVID-19. Participants were able to discuss issues that have arisen or are anticipated to arise in such proceedings such as the potential for witness coaching and the handling of exhibits during such procedures. The CPR Annotated Model Procedural Order was circulated to attendees and several of its provisions highlighted. Neutrals, please watch your email inbox for future invitations.

A RICH SCHEDULE OF UPCOMING PROGRAMMING

Our events calendar continues to be as relevant as it is robust. Upcoming virtual events include:

New events are scheduled regularly, so be sure to check our website Upcoming Events section regularly for new offerings.

STAY SAFE AND STAY STRONG

This has been a trying but also a productive time.  Keep engaging with us as we navigate this new normal together.  We in the CPR community are a resilient and resourceful bunch, and I am confident that, with generosity and patience, we will continue to overcome these challenges together.

As always, please let us know if you have any questions or concerns, or just let me know how you are doing. (Instead of hitting reply, please drop me a note at awaxman@cpradr.org to make sure I see your message quickly.)

Warm regards,

Allen Waxman

Supreme Court Declines To Hear Arbitration Case on ‘Equal Footing’

The U.S. Supreme Court this morning declined to hear an appeal in an Oklahoma arbitration case on the so-called equal-footing principle—the idea that the Federal Arbitration Act prevents courts and legislatures from targeting rulings and laws to arbitration agreements, and instead requires  them to place arbitration on an equal footing with other contracts.

The Court denied cert on Tamko Building Products, Inc. v. Williams, Daniel, et al., No. 19-959 (case documents including party briefs available on Scotusblog at https://bit.ly/3dcPrn7).

The Oklahoma Supreme Court case declined to enforce an arbitration agreement between homeowners and shingle manufacturers where the arbitration agreement was “printed on shingle wrapping viewed only by contractors and then discarded.”

Tamko, a Galena, Kansas, building supply company, contended that the Oklahoma court’s decision violated the principle in the Supreme Court case of Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017) (available at https://bit.ly/2YvMji9), which held that the FAA couldn’t be held to higher standards than other contracts.

Tamko, according to its reply brief filed last month with the Court, contended that the Oklahoma Supreme Court “found an agency relationship that empowered contractors buying shingles to bind homeowners to the terms of sale concerning matters such as price and delivery, but not arbitration—because of the importance of the jury-trial right.”

But, it continued, “That decision blatantly violates the FAA’s equal-footing principle.”

As a result of the cert denial, the Oklahoma Supreme Court’s decision that the homeowners “never had an opportunity to make a knowing waiver of access to the courts,” stands, along with its reversal of a trial court order remanding the case for trial.

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.

CPR’s Arbitration Committee Tackles ADR Video Conferencing 

By Michael Hotz

The International Institute of Conflict Prevention and Resolution’s Arbitration Committee  hosted an online event early this month to tackle questions from neutrals and advocates designed to help them properly use video conferencing to conduct alternative dispute resolution hearings remotely.

The event was a continuation of a series of discussions hosted by the CPR Institute examining remote mediation and arbitration practices and addressing issues neutrals are encountering conducting remote hearings.  For a roundup of earlier CPR events, see this April 2 CPR Speaks blog post. The CPR Institute’s information clearinghouse on the virus and its effects can be found on its website at the link for ADR in the Time of COVID-19.

The April 7 teleconference was moderated by White & Case New York partner Jennifer Glasser, who is vice chair of the CPR Institute’s Arbitration Committee. Three panel members included: Daniel González, a Miami-based partner at Hogan Lovells; Samaa Haridi, a partner in Hogan Lovells’ New York office, and Jorge Mattamouros, a partner in White & Case’s Houston office.

Mattamouros began by discussing his video hearings experiences. The case he explored was a hearing in a large Brazilian M&A dispute. The hearing was mostly conducted in Portuguese, but also had English language witnesses. It began before the COVID-19 pandemic, so the process had to change in response to the health and safety measures implemented internationally.

Transitioning to remote hearings was made easier, Mattamouros explained, as the parties already had established a protocol for electronic conferencing. First, the parties conducted the opening presentation, and fact witnesses’ examination and cross examination, before travel bans in the United States and Europe.

Then the parties returned home and the hearing continued online using Zoom for the examination of the expert witnesses. Mattamouros noted that platforms like Zoom have chat functions that, if not turned off, allow the witnesses to receive messages during examination. Other neutrals, the panel noted, have used WebEx or other remote conferencing platforms.

The key benefit to being able to use telecommunication services to do arbitration was the ability to conduct hearings across the globe. This is especially relevant for smaller matters, as the amount disputed doesn’t necessarily merit traveling internationally.

Panelist Samaa Haridi discussed how technology allowed her to conduct an arbitration as tribunal chair remotely from New York, despite time differences, with the parties and co-arbitrators in Dubai and London. The timing was a key issue, as it required that the parties coordinate and that the arbitrators arrange a schedule that didn’t impose too great of a burden on any one party. In her hearings, Haridi explained, it often required that she start her day earlier than usual.

Glasser observed that remote hearings may require shorter hearing days but more total hearing time, both to accommodate time differences with parties across the globe but also because it is more difficult to keep the arbitrators and parties engaged when interacting virtually.

Haridi agreed that it was harder to keep people focused when they weren’t conducting in-person meetings. This required the neutral to adjust expectations of what could be accomplished each day.

In one semi-remote hearing Haridi participated in as arbitrator, the parties  were together in one location, and two of the arbitrators were in different cities. And while the third arbitrator was located in the same venue as the parties, he sat in a separate room to maintain an appropriate balance considering the virtual participation of the other tribunal members.

To ward off potential challenges to the award on the basis of perceived lack of neutrality or unequal access to information by the arbitrators, Haridi recommended having the neutral participate in a separate room from the parties in cases such as hers where not all of the arbitrators are able to sit together with the parties in one location. This maintains the appearance of impartiality.

Daniel González stated that he has participated in remote hearings for many years, such as examining a witness by video while the neutral and parties are together in another location.  While remote hearings in the age of Covid-19 present the new challenge of all participants joining remotely from different locations, and technology is rapidly evolving to meet this challenge, it is the human factor and interaction that has not changed over time and must be carefully considered as it will present special issues for the arbitrators, the cross examiners and the witnesses on how they can carry out these virtual hearings.  For example, one challenge the program panel members agreed on is the ability to use and assess body language.

For example, during cross examination, it is difficult for the lawyer to gauge the tribunal’s reaction or for the witness to know if they are effectively conveying information to them.

Hogan Lovells’ Haridi mentioned that the lack of body language also made it harder to evaluate the credibility of a witness. This is one critical issue that led Jorge Mattamouros to state that in-person meetings were still preferable.

Another issue the panelists discussed was the sharing of documents. Remote hearing technology allows for the presentation of documents through the video conference platform.  This feature was used in all of the remote hearings conducted by the panelists.

The panel then discussed how to ensure the efficient presentation of evidence in document intensive cases that are being heard remotely.  Mattamouros commented that he combined all of the exhibits into one master PDF so the parties, tribunal, and witness could easily navigate to the relevant document and page number being referenced without losing time to find and toggle between different documents.

González noted that vendors that handle the organization and presentation of the record in conventional settings were available for virtual sessions as well. Using a third party alleviates the burden on counsel to manage the technology and document presentation.  He argued that it was best to use whatever method the tribunal was comfortable with.

The participants then discussed fairness in arbitration.

Samaa Haridi commented that the use of online hearings could create additional challenges in enforcing an arbitration tribunal’s award. A party who dislikes the ruling could challenge the award by claiming there was no due process.  It remains to be seen how courts deal with such challenges.

White & Case’s Jorge Mattamouros noted that the party’s lack of consent didn’t always establish a lack of due process. That would be determined on a case-by-case basis.

The discussion noted that there is broad leeway granted to arbitrators and mediators when establishing a fair process. Acquiring consent is a simple way of reducing the likelihood that a party can challenge the outcome successfully, but it is not the only one.

Moderator Glasser concluded by asking for the panel’s views on the future of remote hearings after the Covid-19 crisis.  The panel agreed that remote hearings are likely here to stay in some form, such as convening initial case management conferences by video rather than meeting in person.

They also agreed, however, that human interaction is a critical part of a hearing and that in-person hearings will not become a vestige of the past.  Ultimately whether to hold a remote hearing will be a fact-specific inquiry depending on the circumstances at hand.

Glasser brought up the problem that, as more arbitration is moved online, newer attorneys may get fewer stand-up opportunities to make oral argument or cross-examine witnesses. In a standard face-to-face processes, the attorney in charge can allow the novice lawyer to take control more often, as they are still in the room and provide correction and assistance instantly. In the online forum, they do not have that ability, making it much less likely that anyone would be willing to risk their case to give the newer attorney some experience.

* * *

After the discussion of the benefits and issues with virtual arbitration procedures, CPR Institute Senior Vice President Olivier P. Andre discussed the need for those using document transfer or other communication platforms to ensure that they comply with relevant privacy laws.

Without proper cybersecurity, the process can leave parties’ documents vulnerable and potentially subject the neutral to lability. He recommended consulting the CPR/FTI Consulting Cybersecurity Training, the draft ICCA-IBA Roadmap to Data Protection, and the International Council for Commercial Arbitration-New York City Bar Association-CPR Institute Cybersecurity Protocol for International Arbitration. These resources are designed to provide guidance on how to manage the risks associated with cybersecurity and privacy regulations.

* * *

CPR Arbitration Committee Chair Hagit Elul, a partner in New York’s Hughes Hubbard & Reed, announced that the committee was planning on creating an industry-specific project by corroborating with other CPR Institute industry committees such as the pharmaceutical, finance, energy, and construction committees.

The committee also discussed the CPR Institute’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings, a new best-practices document for navigating arbitration hearings electronically.  The document was since released by CPR on April 21, and the details can be found on CPR’s website here.

 

Michael Hotz is a CPR Institute 2020 Spring Intern. His account relies on post-session comments from the participants.