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Dr. G. V. Loewen* “…we must remember this, that the art of understanding adversaries is an innovation of the present century, characteristic of the historic age. Formerly, a man was exhausted by the effort of making out his own meaning, with the help of his friends. The definition and comparison of systems which occupies so much of our recent literature was unknown, and everybody who was wrong was supposed to be very wrong indeed.” (Dahlberg-Acton 1906:202 [1895]). The great challenge of our own age, that which imagines itself as verging upon post-historical, remains a historical challenge. The shock of the other, her very existence, both promotes this challenge into an orbit that appears dauntingly distant, but also demotes the value of taking up this challenge as something unworthy of our collective efforts. For the other is at first no friend. And yet the stakes could not be higher. Even in Lord Acton’s period, which is still very much our own as modulated from imperial colonialism to economic neo-colonialism, from biopower presumed to biopower desired, from sex to gender, from race to ethnicity, from labor-based classes to those status-based and so on, people were well aware of the historical cost, not so much of misunderstanding, but of deliberate disagreement for the sake of political opportunism and messianistic adoration. Like moving to the relative minor from the nineteenth century’s dominant major key, our own time has been modulated by these structural forces so that the otherness of the other is much more apparent to us, and much more troubling. There no longer is a ‘white man’s burden’, and if anything, fashionable discourse says to us the opposite: that the white man has imposed a burden upon the world that reaches out from beyond his own recently dug grave. Yet it was this very personage who invented the concept of understanding, after many painstaking millennia. Almost all of our philosophical ideas which aid us in coming to both the understanding of the other and what is also of the utmost, one’s own self-understanding, emerge from the ethics of the West, authored and thought out loud by the best of what is often considered a bad lot. If this sounds apologetic in any way, it is because abandoning this discourse means that we are thrown back over into a pre-modernity that is too sure of itself; its religious beliefs, its sense of social order, its political reason, its morality. The Enlightenment, the penultimate fruit of the tree of reason that was first planted some twenty six hundred years ago in Greece, is the source of historical understanding and also that ethical, for it goes beyond the sense that tolerance alone is a good enough showing to otherness as a principle, just as it makes larger the compassion that was to be shown, in Christian ethics, to the other as an individual. This is one of the reasons why Acton refers to understanding the other as an ‘art’. Art simultaneously participates in the universal and the individual. It brings the cosmos to the person without presuming to personalize it. It allows the intimate to experience the infinite without aggrandizing what occurs between persons into a universal force. Similarly the art of self-understanding, which too must attain a new intimacy in the face of an overwhelming and anonymous world, let alone the incomparably larger cosmos. If this is an ideal, let me suggest that before one can attain art, one must task oneself with the more modest act. The act of understanding the other is a beginning, but in our own day, even this appears to be often absent. We hear popular writers speaking of ‘reaching out’ to one another, of tolerance, compassion, even acceptance, but are any of these, or can any combinations thereof, truly generate an authentic understanding of the other as a vehicle for otherness? Here, I am using the term to connote neither the untoward nor the uncanny as such. Yes, both are present in the encounter with the other insofar as the first may be the case if we fail to understand something of her – she may end up presenting a threat to our own parochialism, which is not necessarily a bad thing in and of itself – and the second occurs simply because of the shock of realizing that another human being can in fact be so different from me that I am stretched to recognize her as human. The untoward is what we seek to avoid, but the uncanny cannot be expunged. We simply have to accept this in ourselves through the other as part of the act of understanding. For otherness also resides within, from the metaphoric rhetoric of the unconscious life, to the role stress and conflict that occupies our waking hours. It is quite enough most of the time and for most of us, to nod again to Acton, to ‘make out our own meanings’, oft enough without any help at all, from either friend and certainly not from foe. Just so, just now, we see that friend and foe are becoming all too clear, so much so that if one is not the one, one is the other. This is the very essence of pre-modernity in all of its diverse organizational forms. From hunting and gathering, through horticulture and agrarian means of production, the stranger could not be one of us. It is a long-germinating resonance of the second Great Awakening period (c.1790-1840) in the USA that American politics – ironically heralded as the most ingenious, reasoned and liberating if experimental dynamic in world history by De Tocqueville at the very moment it was about to turn inward and fold back upon itself – has seemingly regressed into a bipolar pre-modernity; one is either friend or foe and there is nothing, and more importantly, no one, in between. The art of understanding is the culmination of a series of acts which direct themselves toward a sense of self-recognition, thence further, toward a more

Shreya Gajbhiye* Introduction A growing popularity of multi-tiered clauses has resulted in its own array of issues and nuances which arise in practice. This paper focuses on the practical implication brought by an ambiguous position of law, particularly with respect to the practical implications of arb-med-arb clauses. In the event that the parties happen to reach a settlement within the mediation window provided between the arbitral proceedings, an award on the agreed terms can be issued by the tribunal upon request by the parties, provided that the tribunal finds no objections therein.[1] The motive behind such an award, also termed as a consent award, is to give an identical status and effect on the merits of the case to the MSA as any other award. Many arbitral institutions contain rules which permit the recording of a settlement agreement as an arbitral award in a dispute which would otherwise be within the subject matter of arbitral proceedings.[2] The parties to arbitration hence are incentivized to settle amongst themselves. However, consent awards are well-known to be strategically used as a tool to avail the benefits of the enforcement mechanism under the New York Convention (NYC) for the MSAs.[3] The initiation of arbitration proceedings under multi-tiered clauses, particularly arb-med-arb, are done only to move on to the mediation window, and bring the resultant MSA within the garb of an arbitral award.[4] The intention of the parties behind the very commencement of the process was to suspend it, and in case the mediation does not result in settlement, the arbitration can be resumed. However, certain issues arise out of the question of enforcement of MSAs as Arbitral awards have been flagged – the most significant of which arguably being subjecting the outcome of a facilitative process (which is essentially a contract) to standards of an order resultant of an adjudicatory process. Unspecified time of ‘differences’ between the parties One concern with this common strategy is that the extent of the application of the NYC on mediated or conciliated settlement agreements recorded as consent awards is unclear. When a settlement agreement has been formulated already, and the parties subsequently attempt to record it as a consent award through either [1] entering into an arbitration agreement or [2] invoking a prior agreement appoint an arbitrator for the same, the NYC may exclude it. The reason for this is that several jurisdictions require the subsistence of a dispute atleast at the time of the appointment of the arbitrator, based on the reference made by the NYC to awards coming out of “differences” amid the parties to the dispute.[5] The jurisdiction of the arbitrator would fail otherwise, and the arbitration agreement would be rendered invalid for the purposes of the resolution of the differences. For example, the consent award arising out of the process entailed in the hybrid med-arb clause can be possibly problematic. The arbitration procedure intended to record the award, having begun after the parties had settled the dispute, could not be considered to potentially settle the “differences between the parties”.  Article I(1) of the NYC mentions the term ‘difference’[6] but omits to mention when exactly this ‘difference’ should have arisen and subsisted, with respect to the arbitrator’s appointment. Thus, no express bar exists on an award given after the settlement of the dispute by the appointed arbitrator. The other provisions of the Convention also do not seem to expressly bar the enforcement. The enforcement may be objected to by the country where it is sought, due to the fact that the appointment of the arbitrator took place after the settlement, Even in this case, it has been noted that “such a legal difference ought not to rise to the level of being contrary to such a fundamental public policy of any country as would preclude enforcement of such an award under the public policy exception of Article V(2)(b) of the Convention”.[7] Arbitrability vs ‘Mediatability’ The procedure entailed in the multi-tier arb-med-arb clause is initiated only after invoking arbitration and subsequently, suspends in the favour of mediation by the order of the tribunal. Hence, the initial ‘gate’ of the process needs to be unlocked by fulfilling the standards of arbitrability, only after which a chance of mediation would be available. Many jurisdictions, including India have an exhaustive criteria of which disputes can be referred to arbitration. However, such a corresponding threshold is not found in mediation. The illegality of a non-arbitrable dispute in an arb-med-arb process would adversely affect the mediation process as the illegality would transfer from the initial arbitration. For instance, mediation and conciliation is encouraged in labour disputes and consumer disputes in India, however, these have been established to be non-arbitrable. Further, it is common practice for parties to discuss future relationships and make future plans within a mediation process, which would fall outside the scope of the initial dispute referred to in the agreement. These characteristic outcomes of an ordinary mediation process would fall out of the ambit of the arbitral award and hence suffer from being subjected to a standard tailored for arbitration. Conclusion It is seen that multi-tiered clauses are an opportunistic and strategic mechanism to gain the advantages of the expanse of the complementary and co-inciding nature of arbitration and mediation. But similar to any up and coming practice, it is not free from its fair share of concerns. The ambiguity surrounding the exact ‘time’ that the dispute should have had arisen has led to much uncertainty regarding its validity. Admittedly, it is subject to the jurisdiction that the claim is sought to be enforced in, however, any clarity or test regarding the time of the dispute in reference to the time of the appointment of arbitrator would go a long way in clearing the muddy waters. Conversely, a separate and robust mechanism specific to MSAs will simplify and solve the concerns once and for all, creating its own enforcement regime tailored to its own requirements. An analysis of the intended use, nature, formulation and importance that the

*Carlos Vera Quintana[1] Con los negocios transnacionales aterrizando en casa país, con los países suscribiendo constantemente acuerdos internacionales que usualmente imponen normas supra constitucionales y con plataformas de cooperación y comunicación que no se afectan porque barreras fronterizas, es obvio pensar en un sistema de alianzas globales para la mediación que permita hacer uso efectivo de sus beneficios a nivel masivo, en la cotidianidad, basados en  mejores prácticas y experiencias que están disponibles y que deben aplicarse localmente, aprovechando su potencial global. Esto es justamente lo que se desprende del trabajo de Ex Curia International, ECI, como un espacio global de aplicación local que evidentemente resulta en beneficios en cualquier mecanismo de resolución de disputas, independientemente de la jurisdicción involucrada (muchas veces difícil de identificar), las normas aplicables o el ámbito de acción de que se trate. La virtualidad acelerada por la COVID19 aporta positivamente para la conformación de redes y plataformas y la natural transición a adoptar, operar y convivir en ellas. La prevención de disputas, a través de los mecanismos de cooperación internacional de aplicación local, es una consecuencia real de la convivencia en redes de interés común y de las plataformas de interacción mutua que muchos sectores y actores se encuentran desarrollando. Las normas globales de aplicación general son comunes, a través de leyes modelo, muy factibles en temas de esta naturaleza y que son normalmente promovidas por  organismos internacionales especializados. Algunos casos típicos son el comercio marítimo o el comercio electrónico sectores en los cuáles existen leyes modelo que han sido de enorme utilidad en la generación de normas locales que comparten principios comunes que facilitan los procesos y que se extienden con éxito a áreas de la mediación y arbitraje para la resolución de disputas, arbitraje, anticipación de conflictos y numerosos otros importantes campos de acción en los cuáles aplica la cultura de paz y que incluyen la mediación en temas comerciales y económicos, cuestiones de usuarios y consumidores, solución de conflictos personales, comunitarios y sociales. La mediación como propuesta de una cultura de paz, apoyada en medios tecnológicos y en organizaciones como ECI, con el soporte de numerosos activistas y profesionales involucrados, se enrumba apresuradamente hacia el éxito, con una propuesta de masificación en asuntos no solamente macro sino, y aquí radica su verdadero potencial, en temas cotidianos donde normalmente por costos o dificultad de aplicación, no ha tenido mayor aplicación antes de la posibilidad de resolución de disputas en línea, ODR. En los temas de mediación, la generación de normas locales basadas en normas modelo de aplicación global, resulta de enorme interés y beneficio para usuarios y consumidores de estos sistemas que requieren más facilidades en el acceso a los procesos extra judiciales cuya práctica y utilidad están plenamente demostrados. Vamos hacia una cultura de mediación global de aplicación local como un mecanismo de aprovechamiento y masificación de la cultura de paz y prevención de conflictos, donde la tecnología abre fronteras una vez más creando redes para su exitosa implementación. [1] Director Ejecutivo, Consumidores Ecuador  www.consumidoresecuador.ec [email protected]