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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]

*Carlos Vera Quintana[1] With transnational businesses landing at home, with countries constantly signing international agreements that usually impose supra-constitutional rules, and with cooperation and communication platforms that are not affected because of border barriers, it is obvious to think of a system of global alliances for mediation that  allow effective use of its benefits on a massive scale, on a daily basis, based on best practices and experiences that are available and that must be applied locally, taking advantage of its global potential.  This is precisely what emerges from the work of Ex Curia International, ECI, as a global space for local application that evidently results in benefits in any dispute resolution mechanism, regardless of the jurisdiction involved (often difficult to identify), the  applicable rules or scope of action in question.  The virtuality accelerated by COVID19 contributes positively to the formation of networks and platforms and the natural transition to adopt, operate and coexist in them.  Dispute prevention, through local application international cooperation mechanisms, is a real consequence of coexistence in networks of common interest and of the mutual interaction platforms that many sectors and actors are developing.  The global norms of general application are common, through model laws, very feasible in matters of this nature and that are normally promoted by  specialized international organizations.  Some typical cases are maritime trade or electronic commerce, sectors in which there are model laws that have been extremely useful in the generation of local regulations that share common principles that facilitate processes and that are successfully extended to areas of mediation and  arbitration for the resolution of disputes, arbitration, anticipation of conflicts and numerous other important fields of action in which the culture of peace applies and which include mediation in commercial and economic matters, user and consumer issues, resolution of personal, community and social conflicts.  Mediation as a proposal for a culture of peace, supported by technological means and in organizations such as ECI, with the support of numerous activists and professionals involved, is heading hastily towards success, with a proposal of massification in matters not only macro but also, and  this is where its true potential lies, in everyday issues where, usually due to costs or difficulty of application, it has not had a major application before the possibility of online dispute resolution, ODR.  In mediation issues, the generation of local rules based on model rules of global application is of enormous interest and benefit for users and consumers of these systems that require more facilities in accessing extrajudicial processes whose practice and utility are fully  proven.  We are moving towards a culture of global mediation of local application as a mechanism for the use and massification of the culture of peace and conflict prevention, where technology opens borders once again by creating networks for its successful implementation. [1] Director Ejecutivo, Consumidores Ecuador  www.consumidoresecuador.ec [email protected]

*Sangeeta Mehrotra The best way to create a successful ODR environment is to build a mindset for mediation. The need, therefore, is to build an effective autonomous ODR ecosystem of resolution options, where the private sector can generate many options to pursue redressal for different types of cases. Presently, everything is going online – shopping, travelling, dating, marriage, divorce etc. – acceptability is not an issue anymore. As far as ADR is concerned, Covid-19 has literally pushed us to go online, and to communicate, to settle our disputes online. This is an opportunity to understand that this technology, this mindfulness of resolving disputes together in an online setting will become the norm. We can say that ODR will be the new legacy coming out of this pandemic. After all something we have understood is that resolution, particularly pre-litigation redress, is more effective, and much more scalable and efficient in resolving cases. Now, we need to create awareness on a big scale. However, there is a difference between this model, and taking mediation into a completely process-driven environment where there is no video, interface or voice exchange, AND it is all done by Artificial Intelligence. Maybe the time of such robotic ODR process has not come as yet – we still prefer video conferences and voice calls where people can create digital empathy. The ability to empathize with the other person is important. Time zone, computer screen etc. do not matter. We can continue to empathize, continue to dialogue, continue to share, and continue to learn. Parties can see online sittings as being less intimidating, where there is no extensive travel involved, no elaborate arrangements to be made for all parties to assemble at one particular place, and where they can settle disputes through communication from the comfort and safety of their offices or homes. It is easier to make the parties sit in separate virtual rooms from their respective lawyers to let them interact freely with their permission. Thus, posturing can be eliminated.  But in ODR, advocates play a much greater role so as to help create the required comfort level for parties – especially when the parties are not corporate clients who in any case are exposed to video conferencing, etc. Here, I must say that when I deal with issues of small-time commercial disputes regarding loan repayments, credit card dues settlements etc., I resort to a more informal approach because the borrowers generally get intimidated by a very formal business-like environment. They seek out a hand-holding role from the Neutral. Here, the balancing act plays an essential part. In ODR, time schedule management is better. With proper basic tools like a larger screen and a good camera, we can pretty well-read parties’ emotions and body language – by this, I mean the subtle nuances of communication. Even regarding confidentiality, there is no issue as such. Often people express apprehension about online leaks, etc. Offline leaks are also possible. A mediator can be as good as the law allows him or her to be, and the process he or she is following stays secure and they follow the protocol. Mediation proceedings are strictly private and confidential here in India. Section 75 of the Arbitration & Conciliation Act provides that, notwithstanding anything contained in any other law in force in India, the conciliator and the parties shall keep all matters relating to the mediation proceedings confidential, and that confidentiality extends to the settlement agreement except where its disclosure is necessary for implementation and enforcement. Best practices dictate that in a private commercial mediation, parties to the dispute and the mediator must sign a confidentiality agreement prior to the commencement of mediation proceedings. Mediators or the Service Providers make sure that all steps possible are taken to protect confidentiality, which are reasonable because even in in-person mediation if parties want to record they can record, if at the time of caucus the other party wants to make a phone call, he or she will. So what is essential is – A robust confidentiality agreement, in my opinion. Further, typical to our culture (like in face-to-face mediation, in online process also) we can see many other people accompanying the parties. It is ok. If the mediator is having the skill and ability to connect and build a rapport with the parties, it is immaterial how many lawyers or family members/friends accompanying him or her as long as everybody present there signs the confidentiality agreement and abides by the rules. At the same time, both parties must have the knowledge about the presence of who all are in the virtual room for equity. Trust is an important element. Whether it is a billion-dollar stock market deal gone wrong or your spouse does not allow you to access your child or married sisters hoping to get a share to their parent’s property/legacy – everywhere emotion plays a big role. We must remember that corporations are run by human beings, after all. Intrapersonal/interpersonal relations do matter everywhere. So, having emotional intelligence is extremely important – the Mediator must have the capacity to read the body language, feel the air and energy around. My own experience if I may say so:- First, I try to make parties aware of what mediation is and then the practicality/usefulness of ODR [COVID made it easier, though]; then make them feel comfortable with the process, describing the ground rules, role of the neutral. Knowing the process gives them confidence to be a part of it. All apprehensions put to rest; I go to the basics that are the Parties’ innate [human] desire to avoid disputes [at least in Indian context] and to be heard. So, I listen. If I am not aware of certain terminology, acronyms etc. or for that matter how a certain commercial transaction was conducted; I simply ask. I do not pose about being at a pedestal knowing everything. I maintain neutrality through my overall demeanour, my verbal/non-verbal communications with parties, the time and attention given

by Paschalis Ioannidis* Is the legal framework favorable? Despite the permanent and persistent will of the administration in both local and European level, the popularity of civil mediation remains restricted. The will for the institution of mediation in Greek civil law occurred between 2007-2010; ultimately, law No3898/2010 provided the definition of the term, set the general principles of the procedure and the range of cases in which the statute applies, determined the requirements of the parties involved and ordered the creation of the Committee of Certification for Mediators, under the supervision of the Ministry of Justice, Transparency and Human Rights. The option of resorting to the procedure of mediation was provided in “private disputes” including those characterized as “cross-border” (a term most probably linking to EU legislation regarding the Common European Market).  Between 2012 and 2015 the Hellenic legislator has enhanced mediation and widened its field of appliance, thus providing a very favorable environment for the spread of its usage. More specifically, in 2012, by virtue of law No 4055/2012 judges in first-instance courts were provided with the discrete option to propose the resolution of the dispute by mediation in any face of the litigation procedure. Three years later, law No 4335/2015 commissioned the judges with the obligation to propose mediation, while the acceptance of this proposal would postpone the hearing for three months; in a case of an already started trial, the law defined that, the initiation of mediation by the parties would instantly cancel all hearings already conducted.[1] The final step was taken in 2018; law No 4512/2018 initiated the statute of mandatory mediation for a variety of cases, including disputes arising from apartment-renting contracts, compensation from car damages, family law, patent-law and others. The case can be issued to the competent court only if the mediation procedure has been proven fruitless, whereas attempting to completely skip it leads to the characterization of the action as inadmissible. The aforementioned law also clearly states that every private law case (including both civil and commercial disputes) can be resolved with the use of mediation; it also further facilitates the procedure of ascribing certifications for mediators, via the creation of the Central Committee of Mediation with several sub-committees and the systematization of the procedure of testing and certifying candidates.  It should be noted that all aforementioned laws have been voted for the purpose of the Incorporation of the EU Directive 2008/52/EP. Has the initiation of Mediation been fruitful? The Greek legal world has been hesitant towards this new -and quite unknown in Greece- form of ADR. The institution of mandatory mediation, in particular, has caused several reactions among academics, as many state that it is quite dubious weather the statute complies with the provisions of the Article 20 of the Constitution and of the Article 61 of the European Convention on Human Rights (regarding the jus standi right). These concerns have been loudly expressed through the jurisprudence of Areios Pagos (the Hellenic civil and penal Supreme Court of Appeals). More specifically, the Administrative Plenary Session of the Court has judged (by a vote of 21 in favor and 18 against) that mandatory mediation is unconstitutional. The Judges’ reasoning was based on the fact that mediation comes with a high cost, and therefore forcing Citizens to resort to it offends the core of the constitutionally enshrined right of jus standi. Although the aforementioned judgement is not legally binding it surely brings grim tidings to the potentials of spreading mandatory civil-law mediation further than law No 4512/2018 did.[2] Apart from the experts’ reactions, it is becoming more and more obvious that the Greek society is rather skeptical towards mediation. The usage of the Statute remains exceptionally low, as only 15% of the cases that require mediation attempt for the action to be admissible, have been actually resolved by mediation in a period from 30/11/2019 to 9/6/2020[3]. The phenomenon of bypassing mandatory mediation is not rare, as in many cases, the parties prefer to move straight to Court, and therefore go through the procedure for typical reasons and very often without even their physical presence, in order to just obtain the minutes, which are necessary for their action to be admissible. As for the cases in which mediation is initiated by the parties, the success rate reaches up to 75%[4]; although this looks encouraging, the actual amount of cases in which the parties initiate it is only 3% on the total number of civil cases[5]. This means that the percentage of the successful party-led mediations on the total number of cases for the period from November 2019 to June 2020 is just 2,25%.[6] What are the reasons for the malfunction of Mediation? There are various causes to why the statute has not reached the expected popularity. First of all, attorneys and the Associations across the country have done little to encourage its promotion. During disputes, few lawyers actually propose the resort to mediation, whereas the Bars advertise the Statute as little as possible. This reaction is partially fueled by the aforementioned doubts expressed by the country’s academics and judges, regarding both the legality and the functionality of the Statute. However, more “practical” motives contribute to this skepticism as well; given the fact that long lasting “judicial adventures” come with a high cost and are often followed by appeal, it is undeniable that many lawyers choose not to encourage mediation for the shake of preserving their high bills.[7] Taking into consideration the exceptionally high number of attorneys in Greece and the oversaturation of the profession ( it is estimated that Greece has the second larger number of lawyers per resident in the EU)[8] one could easily come to the conclusion that the idea of trying to “choke” this “new brand of lawyers” (etc. the mediators) exists in many attorney’s mind. The Statute has not been embraced warmly enough by the judges either. Their main concern consists in what a part of the legal society characterizes as “Privatization of Justice”[9]. According to several Judge’s point

Recently, the  UK Supreme Court handed down the judgement in Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors(‘Enka v. Chubb’),[i] in an attempt to settle the law on the determination of the law of arbitration agreement. The Court differed from the law previously settled in Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA (‘Sulamerica’),[ii] while also clarifying the applicability of the position taken by the Court of Appeal bench in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait)(‘Kabab-ji’).[iii] Background of the Case The dispute before the court arose from an insurance agreement between the respondent (‘Chubb’), and Unipro Russia, for the construction of the Berezovskaya Power Project. After signing the insurance agreement, Unipro transferred its rights against the claimant (‘Enka’) to Chubb. Chubb later sued Enka, a Turkish construction company, for losses caused due to a fire in the power project. Chubb subsequently initiated proceedings in the Arbitrazh Court in Moscow, against which Enka moved the High Court of England and Wales for an anti-suit injunction, citing an arbitration agreement between the parties. The arbitration agreement provided for a London seated arbitration, governed by the Arbitration Rules of the ICC. The law governing the underlying contract as a whole was Russian law. The High Court determined the law governing the arbitration agreement to be Russian law. On appeal, the English Court of Appeal reversed this decision, and held English law to be the law of the arbitration agreement, and refused to grant an anti-suit injunction. On further appeal, this case reached the Supreme Court against the decision rendered by the Court of Appeal. The question regarding the law of the arbitration agreement: The question before the court, inter alia (the other issues are outside the scope of this comment), was whether it could grant an anti-suit injunction with respect to the proceedings in the Moscow Court. This determination, however, relied on the law of the arbitration agreement. Enka claimed that the law of the arbitration agreement was English law – therefore subjecting the scope of arbitration to English standards, and allowing the court to issue an anti-arbitration injunction to prevent the parties from pursuing litigation in Russia. On the other hand, Chubb argued that the scope of the arbitration agreement could not be determined by English courts, since the law governing it was Russian arbitration law. Therefore, the Arbitrazh Court in Moscow would be competent to decide whether the dispute between Enka and Chubb was within the scope of arbitration. Therefore, the question before the Court boiled down to that of the law governing the arbitration agreement. Decision: The court held that the law of the arbitration agreement was English law. While undertaking this determination, the Court of Appeal explored the existing law regarding the determination of the law governing the arbitration agreement, and settled the law with a unified test. The test laid down by the Court of Appeal in Enka v Chubb was referred to by the Supreme Court to determine the law of the arbitration agreement when the substantive law is different from the seat. This has been provided hereunder: – The proper law of the arbitration agreement has to be determined using the three-stage test under the English conflict of law rules, which is reproduced herein – Determination of whether the parties have made an express choice of law Determination of whether the parties have made an implied choice of law The law which has the closest connection to the arbitration agreement The law governing the underlying contract as a whole may also govern the arbitration agreement if a special contractual construction is present. The parties may wish to import the principles of contractual interpretation of the substantive law to the whole agreement, including the arbitration clause. This may be done either through an express provision, or be implied from contractual construction (such as where parties stipulate that the contract should be constructed as a whole).[iv] Additionally, where the parties have chosen the entire contract (including the arbitration clause) to be governed by a particular law, it would be presumed that the body of law would govern the arbitration clause. Merely choosing a different seat of arbitration would not rebut such a presumption. In other cases, the law of the arbitration agreement would be the law of the seat. The parties had not made a selection on the law of the arbitration agreement in the instant contract. Therefore, the court was beset with a situation where the parties had chosen Russian law as the substantive law, English law as the curial law, but had made no choice as to which law would apply to the arbitration agreement. In the beginning of its analysis, the court reasoned that the English Arbitration Act did not allow the court to draw any inference that, by choosing an English seat, the parties had automatically chosen to apply English law to the arbitration agreement. However, the court ruled that the curial law had the closest connection with the arbitration agreement. It said this for four reasons. First, by choosing the place of performance of the arbitration agreement as England, it would be in line with the parties’ intention to have the curial law govern all matters relating to arbitration. Second, it was in the interest of commercial sensibility that the parties would subject the arbitration to a single body of rules. Third, placing the seat as the default choice for governing the arbitration agreement provides legal certainty to the contracting parties. Of course, if the parties do not wish to apply the curial law to the arbitration agreement, they have the freedom to choose a different law. Lastly, the court referred to the UNCITRAL Model Law and the New York Convention to conclude that it was in line with international practice that the curial law have the closest and most real connection with the arbitration agreement. Therefore, in the absence of an express or implied selection, the curial law would govern the arbitration agreement. 

*Lilly Parratt & Shivam Rehan Background: With the Covid-19 crisis having a significant impact on all industries, our aim was to take a closer look and examine the potential effects which it has had on the practice of mediation.  Remote mediation Our initial focus was to outline that although online mediation pre-existed, the most common structure prior to the pandemic was face-to-face mediation, with the majority of parties opting for a physical session. Whilst recognising that physical mediations are resuming (following health and safety measures), we aimed to identify how service providers managed to efficiently move online during times when physically meeting was prohibited. We sought to highlight the benefits of remote mediation, covering it’s flexibility, cost-effectiveness, and the potential to spend less time commuting to physical venues. With an aim to indicate the substantial practical benefits which online mediation offers.  Despite this, through research, we recognised the potential obstacles which online mediation presents. Being based on a virtual platform has led to an impact on the non-verbal communication between mediators and clients within sessions. We conclude that there is great scope for a growth in online mediation, as the practical benefits it can provide are indubitable, whilst acknowledging that its success depends on the specific client and the set of circumstances.  Potential growth and the future of remote mediation Highlighting the growth of mediation during Covid-19, because of the court-backlog, we point to a potential realisation that mediation works, not only as an alternative, but as the first option. We further explored the logistics of mediation, taking into account it’s rapid growth within recent years. Researching and analysing both the advantages and disadvantages of online mediation, we were able to scrutinise how technology is flourishing with its potential of becoming the future backbone of mediation.  Remote Mediation: Adapting to Covid-19. Covid- 19 has had a global impact on the everyday lives of citizens. With social distancing measures set to be in place for the foreseeable future, how has Covid-19 affected Alternative Dispute Resolution (ADR) and in particular, the practice of mediation? What did mediation look like before Covid-19? Online Dispute Resolution (ODR) has offered parties an innovative tool to resolve disputes for decades. ADR ODR International, founded by Rahim Shamji in 2016, is just one service provider which demonstrated prior to Covid-19, just how technology could facilitate the resolution of disputes, through practices such as online mediation. Despite the pre-existence of online mediation, prior to Covid-19 the most frequently used model of mediation was the traditional structure of in-person, face-to-face contact, requiring the parties to travel to a venue. This physicality enables a mediator to read the parties body language and build trust and rapport within the sessions, in order to guide the parties towards a desirable outcome.  How has Covid-19 affected the practice of mediation? Remote mediation With the globe spiralling into lockdown and the social distancing measures in full swing, face-to-face mediation had to adapt, and do so expeditiously. As restrictions were eased, nations steadily crept out of lockdown. The question of whether there will be future waves of Covid-19 may be uncertain, but what is certain, is that mediation managed to adapt rapidly to the unprecedented period. Services which had previously provided mediation through the traditional structure of face-to-face contact, quickly turned to technology to allow business as usual. Video conferencing through digital platforms such as Zoom, and Skype became the norm. Even the use of telephone calls and private emails became an alternative for service providers.  Video conferencing provides parties with a platform to visually connect through seeing one another (albeit being virtually). Utilising the breakout rooms on forums such as Zoom enables private sessions to go ahead, so parties can privately communicate with a mediator, secluded from the others. This effectively mirrors the usual structure of a face-to-face mediation. The leading national law firm Freeths, transitioned to Zoom in March. James Hartley and Chloe Oram, two of the firms Dispute Resolution lawyers highlighted the success of remote mediation through platforms like Zoom as ‘you are able to see the other attendees as real people.’[i]The Centre for Effective Dispute Resolution (CEDR) were quick to release their ‘Mediator’s Guide to Online Meditations’[ii] which demonstrates how to efficiently carry out online mediations. Is online mediation advantageous?  Online mediation provides a flexible alternative to the traditional structure of mediation. It overcomes geographical barriers, as parties involved in international matters can use digital platforms to easily connect. Furthermore, a digital platform is cost-effective, as Goodman submits, there is no need to rent a neutral facility to conduct the mediation, as well as the convenience of materials being readily available; not having to be transported great distances.[iii] In many circumstances, online mediation may be ideal for these practical reasons. Furthermore, for certain subject matter, for example, a family dispute including the ex husband and wife, not having to be face-to-face may be a preferable whilst more suitable method of resolution involving a sensitive topic. Using digital platforms to execute mediations may offer clear practical benefits, with the ability to build rapport through virtual means. Despite this, many mediators are aware of potential weaknesses. Alerting to the difficulty in reading clients body language through digital platforms, mediators can only see what the client shows online, which in most cases is merely the clients head. The lack of non-verbal communication could potentially affect the mediators ability to build rapport. Another obstacle is that the parties may not feel comfortable opening up on a virtual platform, which could therefore serve as a barrier for some clients. Additionally, although online mediation provides a great route to overcome geographical barriers, there are still obstacles such as time differences, and unstable internet connections which can pose as weaknesses.  Whether online mediation is effective depends on the client and their circumstance. For some clients’ online mediation may be the most practical means to resolve a dispute, but for some it may be a barrier. With the traditional structure of mediation being allowed to resume (whereby health