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*Miguel Waltoo and Konstantinos Stergiou What is justice? Procedural justice entails that the judicial procedure is carried out properly. However when you consider that theoretical justice involves fairness, how is it fair that in a dispute, only one party, if any, will gain all of the benefits, while the other party must pay for the winning party’s benefits.[1] Is it fair to consider that in the majority of the cases,  one party is 100% righteous and the other 100% at fault? Plato, in his first book, “Republic”, describes his view of justice. Summarizing his point about justice:[2] Justice binds a community together and protects it from civil strife. Even a gang of thieves must have some measure of justice if it is stable and not riven with dissension. Justice gives to individuals and to groups what is due to them. Justice as a virtue of individuals is fed by, and also nourishes justice in the community. Justice entails freedom; justice is not maintained by physical or psychological force but rather by the attractive power of justice itself. Having said that, justice in a community should be shared, not enforced. This is exactly what is happening with the current legislation. Justice is served by securing the freedom of people to make a free choice and seek Justice in a community that shares the same measures of justice as them and thus keeps the balance between the two sides. ADR gives the choice to pursue justice under the perception of the individual whilst allowing him to pursue justice as perceived by the community if the former fails. Equality before the law is an international human right; is litigation a satisfactory way of securing that? In our opinion that is not the case. Litigation should be considered as the last resort in a wide range of cases. An average person in their pursuit of justice is most likely to consider a variety of factors which are going to determine whether they are going to pursue justice for his case or not. They will try to balance the reward (sense of justice and remedies) with the costs and the risks. Is going to court in theory as easy as going in real life? It is our view that the stress of going to court, the legal fees, the uncertainty of the outcome, the time-consuming process, the potential break between the two opposing sides deter many people from pursuing a remedy for the injustice they felt. As not many people have been in a courtroom in their lives, it is only logical to feel anxious about entering one. However, in ADR this factor is almost eliminated as a private session in a room with a few people is much more similar with other experiences they might have had in their life (professional meetings, etc). In terms of the cost, ADR is incomparably more affordable compared to a trial and the outcome, particularly in mediation, is much more equitable. Additionally, in ADR, the two parties do not simply exchange blows, but instead participate in a mutual procedure, cooperating in finding a resolution to the case. A standard trial could last for weeks, months, or even years in contrast with ADR. Is achieving justice simply a pros and cons list? Is ADR just better only on instances where going to trial just seems too risky or too stressful? Is it about how more affordable ADR is compared to going to trial? Our answer is an emphatic no. ADR, and especially mediation, allows the two sides to participate in the resolution of the case, meaning that the parties would achieve an outcome not based on what the law says but based on their own personal view of what would be a fair result. It offers the feeling of personal justice. It gives a feeling of control over the situation, a level of control that allows the two sides to make choices and feel responsible for the outcome. ADR is not just a legal procedure but a path of civilised dispute resolution. A path of understanding the opposing side which is essential because we humans are complex beings with equally complex problems that cannot be boiled down to one side being awarded and the other side being not. How does ADR solve these issues? ADR provides a platform for all parties to set out their issues in a controlled environment, that facilitates the process and ensures that an optimal agreement is reached, which can not only resolve whatever issue is taking place, but also carries the possibility of mending relationships, preventing further grievances and issues. This is because of its ability to de-escalate the issues at hand, by taking a flexible approach to dispute resolution than would be afforded to the parties involved in typical litigation procedures in which there is either one winner, or no winners due in part to the fee shifting provisions.[3] According to Givins (2019), the fee shifting provisions make it so that the party who does not win, must pay all of the legal fees of the party that does win.[4] Givins (2019) argues that this serves as a deterrent to frivolous claims.[5] However, what about in situations where both parties are right? The litigation process aims to award the party that is ‘most right’. This paints a simplistic picture of a much more complex system, which encourages future issues between the parties through the resentment that might ensue, ultimately escalating the problem on a personal level. This is one of the arguments of Givins (2019) in favour of mediation being the preferred process in resolving disputes involving special education.[6] Where else can ADR be used? As argued by Givins (2019), the litigation process does not foster good relationships between the parties involved and maintains an adversarial atmosphere during and after the litigation period has ended.[7] This is one reason why mediation serves as a much better means of resolving disputes than litigation for situations in which the parties involved will continue to

*Saurabh Gupta In family disputes, there is a high probability of parties resorting to dispute resolution informally. This may assume the shape of discussion amongst family members, sometimes with the help of a third party. There are a number of ADR mechanisms that use third parties for reaching a mutually agreeable resolution, mediation being one of these.  Mediation, being a mediated negotiation, is not an adversarial proceeding,[1] and a mediator facilitates collaboration. India has had a long history of informal dispute resolution akin to various ADR mechanisms that we see operating today. Of late, their importance seems to have plummeted, while court litigation has become the norm. However, there is a difference between dispute adjudication and dispute resolution.[2] I argue in favour of using mediation in family disputes in India, making a case for dispute resolution over adjudication. Furthermore, I look at certain indigenised models of mediation to specifically deal with family disputes in India. Mediation as an Alternative to Court Litigation There is a multitude of benefits associated with using mediation over court litigation in family matters. First, mediation ensures greater respect for parties’ privacy.[3] Family matters may involve sensitive information, which may lead to reputational loss if publicly shared. The fear of leakage may even cause the parties to be hesitant from disclosing complete information during litigation, leading to suboptimal decisions. However, in mediation, the relative informality and better confidentiality of the process can ensure that the parties speak more freely. As rightly put by Schmitz,[4] mediation helps in ‘not airing the family’s dirty laundry in public’. This may especially be a consideration in matters involving family elders (often the case in succession disputes), as they usually accord family reputation high priority. Furthermore, privacy can protect interests of those parties that live or operate business as a family. This is especially true for Hindu Undivided Families (HUFs) who often indulge in joint family business. So, a dispute resolved through mediation can protect the interests of multiple stakeholders within the family. Second, mediation is an effective form of dispute resolution in cases where the proverbial emotional quotient runs high (family matters).[5] For instance, in a property dispute relating to division of an estate, there may be an emotional rivalry between two siblings, often caused by mere miscommunication/misunderstanding. Mediation, being more informal and flexible, deals with both the legal and emotional issues, thus making it better suited to dealing with family disputes. Litigation is limited to the legal questions, and treats the parties as adversaries. Third, mediation can help preserve family relationships,[6] in addition to dispute resolution. Mediation involves open communication between the parties, with an aim to understand the concerns that each side may have. The approach is to develop a willingness to work together in order to reach a mutually agreeable and beneficial agreement. This again is especially important for an HUF operating a shared business. Fourth, mediation aims at mutually beneficial outcomes.[7] Whereas, court litigation will necessarily lead to one party winning at the cost of the other. In family disputes, parties may have non-legal interests that cannot be identified in courts. For instance, in a dispute between two siblings over a piece of property, maximum satisfaction would be guaranteed if they mutually divide the property as per their needs (with due consideration to the non-legal interests). Basing decisions solely on economic value (practice in courts) leads to suboptimal resolutions. Fifth, use of mediation can divert some of the burden of the courts. In India, where the courts already face a huge backlog of cases,[8] this becomes all the more imperative. Admittedly, this benefit is not exclusive to the use of mediation, and accrues from all ADR mechanisms. However, since mediation is a collaborative process, mediated settlements are more likely to not be litigated upon. This ensures that the court burden remains low, not only during mediation, but also post-mediation. All of these benefits highlight why mediation should be preferred to litigation, especially in family disputes. However, this analysis is incomplete without presenting the other side of the coin. Power imbalance between the parties can wreck mediation. Such a power imbalance can favour anyone, depending on the family dynamic. In India, where familial hierarchy is quite prominent, power imbalance is common. In such cases, the mediator’s role becomes all the more important, and difficult. There are two alternatives with the mediator. One, the mediator can ensure that the power imbalance is not reflected in the settlement by ensuring the process involves utmost transparency, free flow of information, mutual respect and collaborative agenda. The second alternative is to advise parties against pursuing mediation. However, the second alternative should be employed if the imbalance is obvious and likely to hinder an impartial settlement. The choice has to be made by the mediator on a case-to-case basis. Better training can better equip mediators to deal with such situations. The Question of ‘Mediability’ In Booz Allen,[9] the Supreme Court propounded a test for arbitrability based on whether the right to be enforced was ‘in rem’ or ‘in personam’. The former could not be arbitrated for, while the latter could be. In Vimal Kishore,[10] the Court has further extended the bar on arbitrability to certain other matters. The reasoning has been questioned in some other judgements, and alternative tests have been suggested. Booz Allen and others become important since it is argued by some that the test on arbitrability extends to other modes of private adjudication as well, and thus covers mediation. However, I would like to offer a two-pronged response to the above contention. A distinction needs to be drawn between dispute adjudication and dispute resolution here. The latter is a wider term, and includes within its ambit, adjudication and certain collaborative modes like mediation too. Mediation is not a mechanism where a third party ‘adjudicates’ the dispute. Thus, a bar on arbitration, which is a private adjudication mechanism, must not extend to a dispute resolution mechanism which is fundamentally different. This becomes all the more important since mediation can

Osaheni B. Ezomo* With the increase and growth of commerce and trade in Nigeria, it has become expedient to utilize more convenient and efficient methods for resolving disputes. The law has made it possible to seek redress through the traditional court system via litigation. Although effective, there is a whole spectrum of other methods to approach disagreement and conflict resolution. These methods become more attractive in a jurisdiction like Nigeria, where the adversarial system is clogged with several bureaucratic hurdles, delays, technicalities, and more often than not, significant cost. These methods are generally referred to as Alternative Dispute Resolution (ADR), which conceptualizes practices and techniques aimed at permitting the resolution of legal disputes outside of court. Among some of the popular methods are; arbitration, mediation, negotiation, and conciliation. Academic scholars and professionals have admitted that these methods have several benefits, like being faster, more disputant friendly, in most situations less costly, available for high-volume disputes, flexible, and informal.[i] Bearing in mind the multifaceted dimensions of dispute resolution, the writer would only be laying emphasis on the rudiments of commercial arbitration in Nigeria. Arbitration is the process of resolving disputes privately, in an adjudicatory and judicial manner, by a neutral third party elected by the parties themselves or through a procedure generally agreed upon by the parties.[ii] It is the voluntary submission to the decision of an impartial tribunal agreed to by the disputants. Commercial arbitration can surface in two main settings. The first and simplest is when parties to a contract (creating a business relationship) specify that in the event of a conflict, parties would resort to arbitration before an agreed arbitrator at the time of the dispute. While the second setting deals with trade associations or groups. Disputes between the members (and in some cases non-members doing business with the particular association) are settled by the arbitration mechanism set up by the group, which could be voluntary or compulsory.[iii]  This could exist either on a domestic or international level. The former involves parties having their business in Nigeria. The latter involves a scenario where one (or more than one) party has their place of business in another country and a part of the agreement involves performance outside Nigeria, or where several countries are brought together by the subject matter of the agreement.[iv] Some of the renowned arbitration organizations recognized for the resolution of commercial disputes under Nigerian law are: the International Court of Arbitration of the International Chamber of Commerce (ICC)[v], London Court of International Arbitration[vi], Regional Centre for International Arbitration – Lagos[vii], Lagos Court of Arbitration[viii], Chartered Institute of Arbitrators (Nigerian Branch)[ix], International Centre for Arbitration & Mediation – Abuja[x], and Janada International Centre for Arbitration and Mediation.[xi] It is also noteworthy that the principal legislation governing arbitration in Nigeria is the Arbitration and Conciliation Act[xii] (henceforth called ACA), which is a federal law. Some states have enacted their own arbitration law, such as the Lagos State Arbitration Law (henceforth called LSAL)[xiii]. The UNCITRAL Model Law on International Commercial Law 1985 was a model for the ACA. An amendment of the UNCITRAL Model Law was made in 2006. The amendment recognized the need for updated provisions to adapt to the modern trends in arbitration and international trade, including provisions on the forms of the arbitration agreement and interim measures.[xiv] These amendments have not been acknowledged in the ACA, leaving this federal law inexhaustive. However, efforts are being made, as a bill is currently before the Legislature to incorporate the amendments made in the UNCITRAL Model law into the federal law. Currently, Common Law and the Doctrine of Equity compliment the provisions of the ACA, where necessary.[xv] Common Law is an unwritten body of laws drawn from the decisions and judgment of old English Courts. They were rigid in nature and sometimes worked hardships on parties in dispute. It gave rise to the doctrine of equity. The doctrine of equity focused on the administration of justice guided by the principles of ‘fairness, natural justice and good conscience’.  It came into being to mitigate the harshness of common law.[xvi] These principles are operative in Nigeria as persuasive authorities and fill the lacunae of the ACA, supplemented by the agreement of the parties.[xvii] It is important to note that the amendment made to the UNCITRAL Model Law has been incorporated in the LSAL, bringing it to uniform international standards in terms of substance and procedure. On the substantive procedures for arbitration, it is imperative that while selecting an arbitrator, the process remains devoid of bias and the selected arbitrator displays a high level of professionalism. Parties to the contract can resolve to choose a named arbitrator of their choice or may resort to specialized institutions that render arbitral services coupled with their specific rules and procedures. The agreement between the parties to a dispute to arbitrate is the basis upon which a valid arbitration is built.[xviii] There are certain criteria that have to be fulfilled to amount to an effective and binding agreement, which are stipulated by the ACA. The statute makes it mandatory that the agreement must be in writing.[xix] The agreement may be a separate agreement or a clause in the main contract. The end product of the settlement, which is the decision of the arbitrator(s) is known as the award and is binding on the parties.[xx] The award can be challenged if bias is present, if appropriate procedures are not adhered to, or if the time limit for challenging the award has not expired.[xxi] The statute mandates that the arbitral award must also be in writing and signed by the arbitrator(s).[xxii] Where there is more than one arbitrator and an arbitrator fails to sign, a reason as to the non-signatory is to be specified by the non-signing arbitrator. The date and place for the award must also be specified. The need for there to be equal treatment of the parties cannot be overemphasized here.[xxiii] The ACA also contains arbitration rules that limit parties to be represented by

Gursimran Bakshi*        I.            Introduction Recently, in 2019 the Chartered Institute of Arbitration (Singapore) issued its Guidelines for Witness Conferencing in International Arbitrations (The Guidelines).[1] These guidelines come post the amendment of the Delhi High Court in the Delhi High Court (Original Side) Rules, 2018 to recognize witness conferencing as a method to cross-examine expert witnesses. [2] Hot-tubbing or Witness Conferencing, formerly known as ‘Concurrent Expert Evidence’ is an emerging mechanism of cross-examination in international arbitration. It is a technique that allows the two witnesses to face each other on the adverse/concurrent testimonies. For instance, usually in a common-law system, a witness gives its direct testimony and then is cross-examined by the opposite counsel. However, in witness-conferencing, two adverse witnesses (one from the claimant and other from the respondent) are cross-examined simultaneously. This method finds its specific mention under the International Bar Association (IBA) Rules on Taking Evidence in International Arbitration, 2010 (IBA Rules).[3] They are a set of international principles that regulate evidentiary proceedings in international arbitration.[4] The IBA Rules are permissive in nature and allow flexibility persuaded by factors, including the goal of resolving disputes effectively and efficiently. The author in this blog post has made an attempt to discuss about nuances of evidentiary proceedings in international arbitration from the context of UNCITRAL Arbitration Rules, IBA Rules, and Prague Rules. Further, the author has discussed about an emerging mechanism of cross-examination that is Hot-tubbing and its advantages and disadvantages in an arbitration proceeding. Cross-Examination in International Arbitration The UNCITRAL Arbitration Rules allows parties to engage in the testimonies of the witnesses, including expert witness, if required. [5]The tribunal under its mandate can also allow oral testimonies of the witnesses; as well as the cross-examination, production of documents, and exhibits, as provided by the parties. The witnesses are supposed to go through two kinds of examinations namely, Direct and Cross-examination. The party who brings the witness before the tribunal performs the direct testimony, and the opposite counsel performs the cross-examination respectively.[6] Cross-examination traditionally a part of the common-law system has gradually taken its place in international arbitration as a valuable tool in weighing and understanding the evidence of the witness. It intends to establish the unreliability of a particular witness or simply exposes a narrative unique to such a witness. However, due to the civility in the system of arbitration, the process of cross-examination rather than being aggressive requires a polite tone before the civil lawyers. Under the IBA rules, testimony of an expert witness makes the whole process complex for the tribunal as well as for the parties. Under the direct testimony, an ordinary witness gives evidence that is strictly limited to the facts within his personal knowledge concerning the dispute at hand. This general rule doesn’t strictly apply to an expert witness who is called on questions on which expert evidence is admissible.[7] However, the complexities involved in the testimony of an expert witness appointed by the parties can be resolved through an instruction report submitted by the expert witness before appearing to give its testimony. Instructions are required on the part of an expert witness for the convenience of the parties and the tribunal as the subject an expert witness is dealing with is often technical and needs explanation.[8] Moreover, an expert report is required on the part of the tribunal-appointed arbitrators under Article 6(4) of the IBA rules. [9] A new development has taken place with the introduction of Inquisitorial Rules of Taking Evidence in International Arbitration 2018 (Prague Rules) that focuses on the civility of the arbitration proceedings.[10]It talks about the proactive role of the tribunal in taking evidence or expert reports.[11] Moreover, the rules allow tribunal to request the parties to relevant evidences through a suo moto action.[12] Witnesses under the rules are divided into Facts and Expert witnesses. If a party wants to introduce a fact witness, it must explain the tribunal on how the witness would prove the circumstance relevant to the issue under Article 3.2(i).[13] The examination of the witness shall be conducted under the order and direction of the tribunal that will also be responsible for imposing other restrictions such as time-check or relevancy of a question. [14] The conflict between the common-law and civil law system in terms of taking evidence in international arbitration has become apparent in the last few years. The preamble of the Prague rules does not intends to side-line the IBA rules, however, its hints towards the civil approach on taking evidence is apparent. The common-law system is adversarial and depends on a lot on documentary evidences, and that is why Prague rules are more cost-effective as it does not rely on the extensive use of documentary evidences, fact witnesses and party-appointed arbitrators.[15] Further, the tribunal under the Prague rules play a much more proactive role, and allows the tribunal to amicably settle the dispute with the consent of both the parties.  Understanding Witness Conferencing as a tool for Cross-Examination The technique of witness conferencing owes its origin to Australian Courts,[16] and Wolfgang Peter, the noted Swiss Arbitrator is credited for developing this technique in a systematic manner, fit for International Arbitration.[17] Witness conferencing helps the tribunal to understand the agreement between the witnesses, the areas of disagreement, and helps to gain contextual understanding of individual statements as the testimonies are concurrent and that makes it easier to point out the contradiction.[18]  It finds its mention specifically under Article 8(3) (f) of the IBA Rules.[19] Under the evidentiary proceedings, the tribunal may allow direct testimonies of the witnesses as requested by the tribunal or the parties. Subsequently, the opposition may question such witness in order as determined by the tribunal (cross-examination). Notably, the tribunal upon the request of the parties or taking a suo moto decision may vary the order of the proceedings including the arrangement of testimonies in such a manner that witnesses be questioned at the same time and in confrontation with each other. Thus in this manner, the tribunal may

Gabriel Garcia Suarez* The distinction between internal and international arbitration is a familiar concept to most legal systems. It is logical for states to establish an international arbitration system that is more flexible and welcoming towards foreigners rather than submitting parties seeking private justice to unfamiliar and often more restrictive laws applicable to local arbitration. The access to international arbitration is, however, contingent upon the fulfilment of certain conditions which are in turn defined freely by each state. In the majority of countries these conditions assume the form of legal criteria such as residence, nationality, company registry, etc. which determine if the concerned parties fall upon the international regime. Although the merits of this effective and systematic approach to the classification of cases are clearly established, the benefits of the alternative, namely the economic criteria, are often explored under the lens of criticism. Nevertheless, its use under the French international arbitration system has contributed in part to the country’s global success as a seat of arbitration. A core principle in French arbitration is the choice of an economic criterion as a means to determine the international nature of arbitration. This principle finds its origins in the early XXth century (du Besset v. The Algiers Land and Warehouse Company Ltd.)[1]. In accordance to article 1504 of the French civil code, international arbitration is defined as being directly concerned by international commerce, or simply put a transboundary economic flux between parties. In other words, the nature of the arbitration is not necessarily dependent on the intrinsic qualities of the parties but rather on the scope of their interaction.  Although the principle itself would not be integrated into positive law until the 2011 reform on arbitration, its pertinence has never been the object of serious contestation. Despite being subject to criticism in several legal systems because of its broadness and lack of specificity, the merits of the economic criterion are perhaps best highlighted by the French legal system. In fact, its long-lived prevalence is indicative of the particularly liberal vision upon which French international arbitration was founded. A closer examination of the French system not only illustrates the logic within this choice, but it is also revealing of a competitive, universally accessible system of arbitration. One of the advantages that the economic criterion presents is a broader, more global appreciation of business operations in the context of arbitration. For instance, when confronted by a chain of contracts, French arbitration law appreciates the ensemble of operations in order to evaluate if a cross-border economic exchange effectively takes place. While the legal criterion might exclude internationality if both parties find themselves residing in the same location or on the basis of a subsidiary company being registered in the same country, the economic criterion benefits of a larger scope that disregards factors such as residence or nationality in favour of a simple international economic exchange. In this sense the economic criterion, at least as applied in the French system, seems to favour the access to arbitration whilst limiting the possibility for parties to build an argument based on misclassification. This pragmatic approach places a particular significance on the will of parties in the sense that once having agreed to submit a case to arbitration, they are tightly bound to this agreement. As confirmed by French case law, the classification of a conflict is not bound by the nomenclature used by the parties, in fact the Cour d’Appel or Court of Appeal must always reevaluate the classification of a case when presented with a demand[2].  The French international arbitration system holds an important relationship with the lex mercatoria. The former is seen by national doctrine as the natural form of dispute resolution to conflicts in international commerce. Furthermore, it consecrates a series of notoriously liberal rules such as the validity of non-written arbitration clauses and even the assignation of the lex mercatoria itself as the governing law for a given dispute.French case law has even gone so far as to designate any arbitral award as independent from national jurisdictions and autonomous in their existence as stated in the famous case Putrabali v. Rena Holdings[3]. It is under this logic that the choice of an economic criterion becomes not only logical but essential to the function of international arbitration. It extends the possibility to escape the restrictions normally set forward by state jurisdictions to any merchant under the sole condition of pertinence in relation to international commerce. While the legal criterion might be intentionally altered or modified by legal actions in order to avoid international arbitration, the economic criterion, due to its broadness of scope, often renders such acts irrelevant for even if one of the parties were to undergo a mutation in its nationality, headquarters or registry, the interaction itself cannot. However, even if the economic criterion isn’t affected by the intrinsic qualities of the parties, it is susceptible to its own problems. On the famous the famous case Tapie v. Société de Banque Occidentale[4], French jurisdictions excluded the internationality of the case arguing that even though the facts indicated an international economic flux, a document in which one of the parties agreed to limit the affair to its internal elements was signed. Because the remaining point of conflict was purely internal, the international qualification was therefore excluded. Judges of the Cour de Cassation argued that the internationality should be appreciated at the moment of arbitration which entails the possibility for the case to evolve or change therefore affecting the ultimate qualification regardless of its initial state. Although this case has to be appreciated under a very particular political and financial context, it indicates the need for celerity in order to avoid or effectively undertake the legal maneuvering necessary to use internationality or lack thereof as a valid argument. Ultimately, parties seeking to escape the restrictions set forward by state jurisdictions will find French international arbitration to be on the liberal far-end of the spectrum. To this end, the determination of internationality by way of an

*Shravani Shendye Introduction Mediation, a form of Alternate Dispute Resolution, is still at a nascent stage of development in India. It is starting to gain popularity as a successful dispute resolution mechanism with the Supreme Court furthering its use to solve various kinds of disputes in the country,[1] but there is one area where the use of mediation is still unexplored, i.e. cases pertaining to insolvency law under the framework of the Insolvency and Bankruptcy Code, 2016 (IBC). The IBC was introduced to tackle the issue of Non-Performing Assets (NPAs) and increasing bankruptcy cases in the country in a time-bound manner. It aims to consolidate and streamline laws relating to reorganisation and insolvency resolution.[2] The Preamble of the Code states the intent of the Code as “reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders.”[3] Additionally, the Code sets up National Company Law Tribunal (NCLT) and the Debts Recovery Tribunal (DRT) as Adjudicating Authorities to resolve insolvency and bankruptcy disputes via litigation. However, the IBC at present does not have a mechanism for out-of-court settlement of disputes related to insolvency and bankruptcy. In this context, this article aims to explore the scope of insolvency mediation and study its efficacy as a dispute resolution mechanism under the IBC. The article supports the proposition that speedy redressal as envisioned under the IBC can be better achieved via mediation—a time and cost-effective, consensual as well as collaborative process of dispute resolution. Advantages of Insolvency Mediation Debtor Rehabilitation The primary advantage of insolvency mediation is that it promotes rehabilitation and reorganisation of the corporate debtor under the insolvency resolution process. The Code encourages a fresh ‘earned start’ for the debtor which can fruitfully be attained through mediation.[4] The consensual approach of mediation can allow the debtors to exercise certain control over their assets while also curing their over-indebtedness. Thus, mediation is an excellent dispute resolution tool for creditors and debtors who aim to ensure repayment of debt as well as sustainability of the business enterprise.[5] Development of Holistic Resolution Plan Mediation allows parties to come up with creative out-of-the-box solutions that incorporate the common interests of all parties to the mediation. This contributes to the possibility of development of a holistic resolution plan that is financially beneficial for all creditors—financial as well as operational.[6] Such a resolution plan would provide impetus to rehabilitation and resolution of the corporate debtor rather than purely serve as a debt recovery mechanism. Time and Cost Efficiency Under the IBC, the corporate insolvency process is ideally stipulated to be completed in 270 days.[7] However, due to practical difficulties, this deadline is usually extended.[8] Mediation, a time-efficient mechanism, can help not only in easing the burden of cases on courts but also ensuring a time-bound resolution process as envisioned under the Code. Additionally, mediation reduces the procedural complexity of the process and makes it a cost-efficient alternative. This is economically viable for the parties and helps in maximizing the value of assets as envisaged under the Code.[9] Thus, mediation helps both the debtor and creditor to avoid long-drawn court proceedings and reduce expenses in terms of time and money. Consideration of Common Interest The corporate insolvency resolution process (CIRP) under the IBC is collective in nature where debts of all creditors are sought to be settled.[10] Mediation can help facilitate a process that accounts for the needs and interests of all stakeholders—the financial creditors, the operational creditors, the corporate debtors and the new investors. Preserving Reputation and Relationships The private and confidential nature of mediation ensures that the reputation of the insolvent corporate debtor is not damaged beyond repair. The goodwill of the corporate debtor is preserved as financial information about the corporate debtor is confined between stakeholders. Thus, mediation ensures that the credit history of the debtor is not impacted in a detrimental manner and the debtor avoids the stigma[11] associated with insolvency. Additionally, the inclusive and cooperative nature of the mediation ensures that the relations between the creditors and debtors are preserved for future collaborations. The debtor may have an incentive to make a higher offer to creditors as the resources exhausted in court procedures are saved, benefitting creditors and improving the creditor-debtor relationship.[12] A possible drawback of insolvency mediation can be the absence of a formal binding decree as given under court proceedings. Insolvency proceedings are proceedings in rem[13] and affect multiple stakeholders like employees, creditors, workmen etc. who should be assisted with equitable treatment under a binding decree. This can make it unsuitable for large insolvency cases involving multiple stakeholders. However, taking everything into account, mediation has preponderant advantages that can help in successful implementation of the insolvency resolution process envisaged under IBC. Insolvency Mediation in Comparative Jurisdictions USA USA has a robust mediation mechanism under Chapter XI of the Bankruptcy Code.[14] Insolvency mediation is either court-ordered or initiated at the instance of a party. It has been successfully used in various high-profile cases such as the Lehman Brothers case where out of the 77 proceedings that were finally mediated, only 4 were terminated.[15] Singapore In 2018, the Singaporean Ministry of Law accepted insolvency mediation for dispute resolution as suggested by the Committee to Strengthen Singapore as an International Centre for Debt Restructuring.[16] The approved recommendations pertaining to use of insolvency mediation in the following cases include the resolution of individual creditor disputes with a debtor in a multi-creditor restructuring, management of multiple creditor disputes of the same nature, and achieving consensus in the restructuring plan between a debtor and its creditors.[17] Netherlands The Bankruptcy Act, 1893[18] is the formal statute that governs mediation in restructuring, liquidation, insolvency and bankruptcy matters if agreed to between the parties. In a 2012 report by the District Court of Amsterdam, in over 70% of the cases, insolvency mediation proved to be a successful solution for the disputes.[19] European Union

Alexis Choquet*           International arbitration and climate change. You might be asking yourself, “why such a heavy topic to start our series of articles on Alternative Dispute Resolution (ADR) mechanisms”? As a fearless young team, we are of the opinion that we should face the crucial topics from the start. Climate Change is a major issue nowadays, which is bound to impact not only our lives, but also our way of dispensing justice, including ADR mechanisms[1]. That being asserted, the object of this article is to gather the various mentions and potential evolutions of environmental considerations representation in either substantive or formal aspects of arbitration.           Substantively, international arbitration can be divided between investment and commercial arbitration. The field that shows the most environmental related evolutions, until today, is investment arbitration.           First of all, it is not rare that investment cases have an issue related to the environment. Indeed, foreign investments are usually prominent projects that usually materialize with a significant carbon footprint and territorial alteration (creation of a bridge, mine, solar panel farms, etc.) which explains why the environmental question is not new in that field. However, it was missing a true legal concretization.           To address this issue, Annette Magnusson, Secretary General at the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), launched the Stockholm Treaty Lab Competition[2]. This initiative is aimed at drafting a multilateral investment treaty project through crowdsourcing – this needs to be remarked for being a modern and inclusive method of international lawmaking. The main focuses of this treaty are to encourage sustainable investments, and discourage former and new unsustainable investments while ensuring a just transition to sustainable development. Besides, it contains a dispute resolution clause which specifically states that an investor or investment may not submit a claim or dispute if the investor or investment has “caused serious environmental damage”. Yet, the implementation of such a revolutionary stipulation would raise the question of who is going to assess the environmental damage, and how investors would have certainty over the evaluation process. Nevertheless, closing the doors of the arbitral tribunals is indeed one of the better ways to urge investors to comply with national regulations. Even though this treaty is not yet part of international law, allowing states to have an example of eco-friendly treaty is already part of the evolution for a better adaptation of international law to current issues.           Bilateral Investment Treaties (BITs) constitute another tool to put environmental considerations at the center of investment arbitration. Recent evolutions have to be remarked. For example, the 2016 Morocco-Nigeria BIT[3], or the 2012 Model BIT of the United States[4], expressly mention the environment or corporate responsibility. Additionally, the 2015 Canada-Ivory Coast BIT[5] regards “sustainable development” in the treaty objectives settings. These are the first BITs that have a clear wording regarding environmental issues. Despite the unproved efficiency of these provisions, it surely could help an eco-friendly interpretation if ever the Vienna Convention was to be applied.           When it comes to precedents, Gabrielle Kaufmann Kohler perfectly expresses that even though the Tribunal is not bound by previous decisions of ICSID tribunals:  “it should pay due regard to earlier decisions of such tribunals. […] Unless there are compelling reasons to the contrary, [the Tribunal] ought to follow solutions established in a series of consistent cases, comparable to the case at hand, but subject of course to the specifics of a given treaty and of the circumstances of the actual case. By doing so, it will meet its duty to seek to contribute to the harmonious development of investment law and thereby to meet the legitimate expectations of the community of States and investors towards certainty of the rule of law”[6].” Accordingly, observing other cases’ reasonings is relevant for environment-related future cases. In various recent investment arbitration awards, an evolution of outlook is perceptible. Indeed, environmental considerations are becoming increasingly present and important in Tribunal’s reasoning such as in David Aven v. Costa Rica[7] and Cortec v. Kenya, where part of the outcome was grounded on environmental arguments[8]. For instance, in the Cortec tribunal’s own words, environmental considerations were of “fundamental importance”[9]. It is evident that through a multilateral treaty, bilateral treaties or precedents, environmental considerations progressively find their way to their real effectivity in investment arbitration.           While the UN is currently negotiating a multilateral convention on Corporate Social Responsibility, which could eventually compel multinational companies to respect environmental obligations with, in the best scenario, actual binding rules upon them, it is clear that integrating environmental issues into commercial arbitration will not be done instantly.           However, some encouraging developments are still noticeable. First and foremost, arbitration is one of the most flexible dispute resolution mechanisms. Indeed, the party that is affected by an environmental damage can nominate an arbitrator who is perfectly conscious of those questions, and who can outline through his/her questioning and intervention the tremendous consequences arising from climate change and environmental devastation. Furthermore, arbitration offers a substantially wide range of enforcement options, which is an effective tool for the implementation of environmental obligations. This, nevertheless, collides with a lack of transparency. Indeed, commercial arbitration is confidential and awards are not published like in investment arbitration. Therefore, the influence of precedents is reduced[10]. The global push for increased transparency in commercial arbitration will hopefully result in an increased publication of awards, which might allow interested parties to follow the treatment of environment-related considerations in commercial arbitration more easily and closely in the future[11]. This would probably lead to an increased use of this mechanism.           Another tool to be considered is the compliance with the law and regulations of the host state. As for investment arbitration, denying the access of parties to arbitration regarding internal environmental policies could lead to a better execution of the parties’ contractual obligations- for example, non-compliance with reporting requirements about gas emissions.[12] Indeed, “non-compliance with such reporting requirements could result in breaches of common commercial contractual provisions, such as conditions precedent or warranties

A.J. Jawad* Mediation received statutory recognition in India in 2002, when the Code of Civil Procedure was amended to include section 89 which mandated the referral of pending civil cases to any of the five Alternative Dispute Resolution mechanisms mentioned therein. Even prior to section 89, there did exist a reference to mediation under section 30 of the Arbitration and Conciliation Act, 1996, though it was only recommendatory in nature. Section 89 would have also been a dead letter but for the judgment of the Supreme Court in what is commonly known as the Afcons’ Case which created a strong framework for referral to ADR. The conundrums that existed in the wording of section 89 were also clarified by the Supreme Court in this case. Starting from 2005, court-annexed mediation centers started coming up in various High Courts. Lawyers were trained in mediation through experts both foreign and domestic. In 2005 the Supreme Court of India formed a committee called as the “Mediation and Conciliation Project Committee” (MCPC) which started aggressively promoting the use of mediation as part of the case management process in courts and organized training programs in the High Courts and District Courts. Guidelines were framed for 40-hour mediation training programs and indigenous trainers were trained and entrusted the job of conducting the training programs. The Afcons’ case in 2010 gave a much-needed impetus to the use of mediation under the court-annexed programs. While court-annexed mediations have become ubiquitous in many High Courts and some District courts, mediation in the pre-litigation stage still remains a distant dream in spite of the sprouting of private institutions offering mediation services. New legislations such as the Commercial Courts Act, 2015, which was amended in 2018 to include section 12A mandating pre-litigation mediation, did not have the desired effect. Provisions under the Companies Act, 2013, recommending mediation remain ineffective and there are hardly any referrals by the National Company Law Tribunals. The Ministry of Corporate Affairs created a pool of mediators by conducting its own training programs. But their services remain mostly under-utilized, if not un-utilized. The amended Commercial Courts Act came with its own drawbacks. Apart from the failure of most courts to operationalize the pre-litigation mediation mandate, the provision itself suffers from some inherent lacunae, primary being the entrustment of the mediation exclusively to the National and State Legal Services Authorities who do not have the resources. More importantly, such a mandate does not fit into their raison d\’être. Pre-litigation mediation, notwithstanding its distinct advantages like time and cost effectiveness, is yet to gain the traction and acceptability as a go-to option before resorting to the conventional, time and cost intensive systems like litigation or arbitration. The reason is obvious – mediation is yet to be professionalized in India. For pre-litigation mediation to become the go-to system of first resort, there is a need to have a pool of professional mediators whose skill and qualifications would be impeccable. Unfortunately, India still suffers from a lack of understanding of the fine nuances and skills that go into the mediation process. To understand how mediation is perceived, notwithstanding the various developments that have taken place in India, we can, for instance, have a look at Rule 4 of the Companies (Mediation and Conciliation) Rules, 2016 that prescribes the qualification of panel of mediators and conciliators to be constituted under section 442 of the Companies Act: Rule 4. Qualifications for empanelment.— A person shall not he qualified for being empanelled as mediator or conciliator unless he — (a) has been a Judge of the Supreme Court of India ; (b) has been a Judge of a High Court; or (c) has been a District and Sessions Judge ; or (d) has been a Member or Registrar of a Tribunal constituted at the National level under any law for the time being in force; or (e) has been an officer in the Indian Corporate Law Service or Indian Legal Service with fifteen years’ experience; or (f) is a qualified legal practitioner for not less than ten years; or (g) is or has been a professional for at least fifteen years of continuous practice as Chartered Accountant or Cost Accountant or Company Secretary; or (h) has been a Member or President of any State Consumer Forum; or (i) is an expert in mediation or conciliation who has successfully undergone training in mediation or conciliation.(emphasis supplied). Even the rules framed by the High Courts suffer from the same lacuna. Rule 5(1) of The Tamil Nadu Mediation Rules, 2010 for instance is almost in pari materia with the Rule 4 ibid. and states under Rule 5(2) as follows:  (2) A person other than those specified in sub-rule(i), for being a person, empanelled as a mediator, should have undergone the training in the Centre or shall be a member of any institution recognized by the High Court as experts in mediation and training mediators. It can be seen from the above that the qualification of “training and expertise in mediation” is given the least priority for empanelment as a mediator. This shows a lackadaisical approach to mediation based on the erroneous premise that it is only an ad hoc process that can be conducted by any one, even without any training in the process skills. Such an approach to mediation is also evident from the Supreme Court ruling in Salem Advocate Case where it was held that it is not necessary for lawyers and judges to undergo training in mediation. It is a paradoxical situation where, on the one hand court-annexed mediation training programs are conducted with great gusto and on the other, the regulatory framework pays scant regard to the need for training and process expertise in mediation.  THE WAY FORWARD: There is a crying need today to recognise and accord the status of a distinct profession to mediation instead of treating it as a tack-on to the legal profession. In order to professionalise mediation, what is first required is to prescribe the qualification. Entry to

Zeyad Abouellail*   Paris Court Of Appeal, CCI, Pôle 5 – Chambre 16, 25th Of February 2020: N° 19/07575, N° 19/15816, N° 19/15817, N° 19/15818, N° 19/15819   The newly established International Commercial Chamber of the Paris Court of Appeal recently rendered its first – and much anticipated – decision in setting aside proceedings against an international arbitral award. This decision, constituted of a series of judgments rendered on the same day and in the same case, gives important precisions on the control of arbitrators’ independence and impartiality and clarifies the extent of their duty of disclosure.   The Case   Three Brazilian companies were involved in an offshore oil project in Brazil (Dommo, Barra, and Enauta[i]). In view of the realisation of this project, the companies were members of a Consortium governed by a joint operating agreement. A dispute arose in connection with the execution of the project and Dommo was later excluded from the Consortium. This exclusion prevented Dommo from selling its stake to a third party.   Dommo initiated an arbitration before the London Court of International Arbitration (LCIA) against Barra and Enauta (respondents). The arbitrators transmitted their respective declarations of independence in November 2017. Once constituted, the arbitral tribunal, sitting in Paris, rendered an interim award on bifurcation and then rendered five interim and costs awards (the Awards) between February 2018 and January 2019.   In the course of proceedings, Barra added a new lawyer to its team of counsel. This arrival of a new lawyer forced the arbitrator appointed by the respondents to update his declaration of independence in November 2018. Subject to his updated declaration, Dommo requested clarifications from the co-arbitrator. In his clarifications, the latter stated that he was counsel from 2012 to 2015 (around two and a half year before the start of the arbitration) at a Saudi firm, itself affiliated with the law firm of Barra’s new lawyer, whose clients are two of Barra’s majority shareholders.   In light of these elements, Dommo filed a challenge against the co-arbitrator with the LCIA, which was rejected in February 2019. Accordingly, it was in the context of the applications to set aside the Awards before the Paris Court of Appeal that Dommo reiterated its concerns on the respondent-appointed arbitrator’s independence and impartiality, as the set aside proceedings were initiated on the ground that the arbitral tribunal was irregularly composed[ii].   The Annulment Proceedings   Dommo argued that the arbitrator’s failure to disclose the link between him and a firm whose clients are Barra’s shareholders was sufficient to cast doubt on the arbitrator’s independence and impartiality from the point of view of a \”reasonable observer\” (¶ 25). Dommo also alleged that its challenge was not premature since the information was not easily accessible and refuted the presumption of public knowledge as it claimed that the presence of the information in question on the internet didn’t necessarily mean that it was easily accessible. It asserted that the “duty of curiosity” (devoir de curiosité), which is imposed on the parties at the start of arbitration, requires only that due diligence be performed, the parties not being required to carry out in-depth research.   In response, Barra and Enauta argued that the information was public knowledge. As such, Dommo did not fulfil its duty of curiosity when it could have easily accessed the information. The respondents asserted that the immaterial and indirect nature of the links existing between the arbitrator and Barra was not of a nature such as to create a reasonable doubt in the minds of the parties as to the arbitrator’s independence nor affect his judgment.   In summary, the allegations of the parties related to (i) the alleged publicity of the information in question and whether the arbitrator should have disclosed them and (ii) whether the links between the arbitrator and the party in question were likely to influence the arbitrator’s independence and impartiality.   The Court’s answer was twofold: in light of the evidence presented, (i) the Court finds that the information was not public and that the arbitrator had a duty to disclose such information that can give rise to doubts about his independence. Nonetheless, (ii) the Court rejected the setting aside of the Awards as it found that the links between the arbitrator and Barra are unsubstantiated and do not influence the arbitrator’s independence nor affect his judgment.   How Did The International Commercial Chamber Analyse The Alleged Publicity Of The Information?   Under French law, an arbitrator must disclose any circumstances that could give rise to a reasonable doubt regarding their independence or impartiality[iii]. The Court explained that the duty of disclosure must be assessed in the light of both the publicity of the criticised situation and its reasonably foreseeable influence on the arbitrator’s judgement (¶ 43), confirming prior case law[iv].   In regard to information subject to disclosure, it is generally considered in French jurisprudence that only information linked to the dispute are in principle concerned[v]. This approach is shared by other jurisdictions, as a German court considered that in principle, an arbitrator must not disclose all information but only the relevant circumstances which in the view of the parties can reasonably cast doubts about his independence and impartiality[vi].   French law notably exempts the arbitrator from disclosing what is publicly known (exception de notoriété)[vii]. However, it is in deciding what constitutes “public” information that resides the main difficulty. Even if prior case law admitted the public character of information available on the internet[viii], this decision reinforces the uncertainties of this affirmation, as not all information available on the internet is mechanically easily accessible[ix].   The Court adopted a very pragmatic approach in its decisions to admit that the information was not public knowledge and that it should have been disclosed by the arbitrator (¶. 52), even though available on the internet. The Court concretely analysed the necessary operations to access the information in question. It noted that access to this information is only possible “after a