Blog

*Devashish Godbole Introduction: The issue of what constitutes Privilege in the case of International Arbitrations is a hotly contested topic and has a lot of diametrically opposite views. It has been observed that there is no concrete law for privilege, both for attorney-client, as well as documents. In addition to the above, there also arises the issue of admissibility and privilege of wrongfully or illegally obtained documents. These issues mostly come up in litigation, where the court decides the issue on the basis of the applicable domestic law. But when we are dealing with a multi-jurisdictional arbitration, between two Multi-National Corporations (MNCs), regarding communication that took place between parties in multiple jurisdictions, with individuals and lawyers from multiple countries, then we enter the grey area of law, without any concrete answer. This issue is compounded as most leading arbitration rules like LCIA, ICC, WIPO etc. do not provide guidance on the what constitutes privileged information and documents. Furthermore, the parties while drafting their arbitration clauses, rarely mention these issues, as it is an assumption that either of the laws provided therein would take care of this issue.[i] This article would discuss in brief what laws are applicable to determining the issue of privilege, while taking evidence in International Arbitration, and mentioning the various challenges that this procedure faces. The article would also analyse contemporary rules and procedures that seek to provide guidance to the tribunals on these issues. Law applicable to International Arbitrations: Due to lack of concrete literature on this topic, Arbitrators often have to decide upon the same and seek a balance between over-exposure of unnecessary documents and ensuring that all the relevant documents come to the fore for the final determination of the facts of the case at hand. The tribunal has to find a workable solution to the said issue in every case, on an individual basis, rather than following a set precedent, whilst ensuring that the award should not stumble upon the issue of ‘public policy’. The whole issue of ‘public policy’ drags the discussion in a grey area. And it becomes particularly complicated when we venture in civil law countries, or Far Eastern countries like China, where the law on privilege is totally different than what is generally observed in common law countries. Take a hypothetical example of an arbitration seated in China, where one of the parties is based out of China, and other out of a common law country. The dispute arose out of an allegation of fraud by the Common Law based party; that the Chinese party was responsible for fudging of certain documents, and the parties individually or together submitted these documents for verification. On the question of whether it would be a privileged document, qua the Claimants, it is to be noted that if Common Law were to apply, these documents would be privileged[ii], as they would have been procured for the purposes of impending litigation or dispute. But if the Chinese law,[iii] which does not recognize common law were to apply, the documents would not have been privileged. Another example can be the rule of disclosure or evidence; where the lawyer-client privilege is generally considered as a rule in common law countries, but is treated as a professional conduct duty or “professional secret” in civil law countries.[iv] Then there is the question of treatment of in-house counsels as lawyers, how settlement and without prejudice talks are viewed etc. which differ from one jurisdiction to the other and have no set universal rules. The determination of allowing or disallowing production of documents boils down to what the tribunal believes to be ‘necessary and justified’ for the purposes of granting or disallowing privilege.[v] The nationality and legal background of the arbitrators is also an important issue, as is their inherent conception of right and wrong, and procedure are engrained in their respective traditions.[vi] Disclosure in International Arbitration: As a general rule, the disclosure phase in an international arbitration tends to be much shorter and succinct. Unless the parties agree otherwise, the rules of civil procedure governing litigation in the local courts, which is, neither the applicable substantive law (lex causae) nor of the seat of the arbitration (lex arbitri), apply to international arbitration.[vii] Generally, disclosure requests in arbitration proceedings must be sufficiently detailed to identify specific (types of) documents and must provide reasons as to why the information requested is relevant to the dispute, and material to its outcome. This disclosure standard is much more restrictive than the “relevancy” test applied by U.S. courts under Rule 26[viii] or similar state statutes, which do not require a separate showing that the requested information is material to the outcome of the dispute. Further, the practice of depositions, interrogatories, and requests for admission is uncommon in international arbitral proceedings in the U.S. and elsewhere.[ix] Renowned arbitrator Gabrielle Kaufman Kohler in one of her papers,[x] has stated that some national legislations like the English Arbitration Act, 1996, specifically S. 34, provides that an arbitral tribunal sitting in England has the power to order the parties to produce documents. But other national legislations are silent on this topic. Being a procedural matter, the power of the arbitrators to order document production is governed by the rules on procedure. According to the general principle of party autonomy, the rules on procedure are determined by the parties\’ agreement. The parties can agree procedure either directly or, which is more frequent, indirectly by reference to a set of arbitration rules. Failing an agreement by the parties, be it direct or indirect, the arbitrators have the power to set the procedural rules and thus decide whether and under which standards they may order document discovery. Practice does confirm that arbitrators have no hesitation in assuming the power to order document production. Practice also shows that they do so whether or not such power is expressly granted by the competent national legislation, the applicable arbitration rules, or the parties\’ agreement. Where there is no express power, they regard it

Shruti Vats[1] INTRODUCTION In light of the increasing complexity of commercial contracts and prevalence of multi-party and multi-contract arrangements in international business transactions, SIAC issued a proposal on Cross Institution Consolidation Protocol read with its 2016 SIAC Rules, in 2017. Multi-party and multi-contract disputes are not uncommon in international arbitration and also arise frequently in commercial litigation. According to the ICC’s statistics for 2016, no less than half of the arbitration requests filed with the ICC involved three or more parties, with 20% of arbitrations involving five parties or more.[2] Similarly, the figures from SIAC’s Annual Report 2019 note that 179 consolidation applications have been received by SIAC since the introduction of consolidation provisions in the SIAC Rules. Consolidation is perhaps more important in arbitration than in litigation because the principles of res judicata and preclusion are not universally recognized in arbitration. While the rules of major arbitration institutions have provisions for the consolidation of multi-party and multi-contract proceedings pending before their own institutions, the field remains unkempt when it comes to arbitration proceedings spanning multiple institutions. Such Institutions have not yet introduced consolidation of arbitrations that are subject to rules of different institutions. If the contracts contain references to two different institutional rules of arbitration (for example, where the subject matters of the contracts are different and disputes arising out of them would benefit from the expertise of specialist institutions), the necessary result, within the present framework, is that two different arbitrations would need to be conducted under different rules,[3] possibly leading to conflicting decisions. This comes after the parties have spent double the resources and time. As explained further below, SIAC’s proposal addresses this by dealing with issues of consolidation of pending arbitrations as well as by providing for the possibility of commencing a single proceeding in relation to multiple contracts that refer to different institutional arbitration rules. THE PROTOCOL[4] The protocol succinctly lays down the key discussion points and their recommended solutions, with possible alternatives. Put simply, the proposal addresses the following two issues: whether and how a consolidation application should be admitted (along with ancillary administrative issues); and if the application is to be admitted, which Tribunal should decide upon the consolidated arbitration. In assessing SIAC’s proposal, the key issue is not so much the substantive nature of the initiative or the proposed mechanics for cross-institution consolidation, but rather the question of the administrative ‘sovereignty’ of the international arbitration institutions.[5] In other words, the key issue is which institution should be given primacy over the other.  SIAC’s proposal focuses on the objectives of arbitration – reducing time and costs involved in traditional methods of dispute resolution, and also on easy enforceability of the final decision. These objectives which make arbitration attractive as a method of dispute resolution are often neglected, as arbitration is, arguably, the only alternative with trans-national enforceability. ISSUES IN MULTI-CONTRACT AND MULTI-PARTY DISPUTES AND THE EXTENT TO WHICH SIAC’S PROPOSAL MITIGATES THESE WEAKNESSES Party Autonomy (consensual nature of arbitration agreement and concept of privity of contract): The introduction of claims or parties through consolidation or joinder serves the goal of finality of decision, yet is often not an option because the contractual nature of arbitration bars any party, in this case the original parties, from being forced to submit to a proceeding to which they did not agree originally in the contract. This problem may be solved by all parties agreeing in advance upon the consolidation provision through the institutional rules, in turn containing the protocol. The Protocol, in this way, will be subject to the consent of the parties automatically, once the parties agree on an institution and its rules. However, for an initial period i.e. transition period, (not specified exactly in the protocol) opt-in mechanism will apply where parties will have to specifically opt for such a consolidation protocol so as not to be caught off guard in the later proceedings. The protocol does not violate the principle of party autonomy as it is only prospectively applicable i.e. the protocol will have no applicability to agreements dated prior to the date of the protocol. Appointment of Arbitrators: The consensual basis of arbitration is based on the principle of equality amongst the parties. Introduction of multiple parties to arbitration either as claimant or respondent can complicate compliance with this principle, particularly in the process of the selection of arbitrators. In most jurisdictions, especially in states party to the New York Convention, 1958, awards are vulnerable to challenge if all parties have not had an equal right to participate in the appointment of the tribunal[6] This problem, at present, is ostensibly dealt with by the common institutional arbitral rules by providing for the joint nomination/appointment of arbitrators together by all of the parties of one side (Claimants or Respondents). It does not specifically provide for situations where one side might be represented by more than one party with different claims (against the other side or even the same side).[7]This means that the arbitral rules commonly require that the parties agree to compromise on the expertise, cost etc. of the arbitrator in favour of a common name.  In the light of the above issue, the protocol proposes the formulation of new rules for the consolidated proceedings that can be jointly administered by the institutions. In the alternative, it provides for the selection of one institution on the basis of objective criteria, safeguarding the overwhelming preference for an institution of the parties. Right of party to challenge tribunal’s jurisdiction after the consolidation decision: In a narrow sense, inclusion of new disputes (through a successful consolidation decision) results in the enlargement of the jurisdiction of the arbitral tribunal already formed for the purpose of deciding the first/original dispute. Should such tribunal be automatically deemed fit for the enlarged jurisdiction without having to further obtain the consent of parties? This, however, is not an issue under the protocol as it innovatively establishes a joint committee for consolidation decision which takes into account an already constituted tribunal.

VICTOR ADEGBITE* Covid-19 has affected at least 188 countries and territories of the world and has brought a lot of economic hardship to many individuals and companies. The global pandemic, which has taken a significant toll, by claiming millions of lives, has the entire world buzzing with uncertainty and questions: How long will the pandemic last? What will people’s lives look like once the pandemic is over? The spread of the virus has continued to negatively impact the economy, commercial activities, people and legal matters. It is inarguable that there is a likelihood in increase in international disputes due to the constraints and failure of individuals and parties to meet their contractual obligations due to the pandemic.[i] The post-corona virus world will give rise to a myriad of claims and lawsuits, including some that are likely to transcend state and national borders. As Arbitration is becoming a popular choice in commercial contracts and dispute resolution, those invoking their dispute resolution/arbitration clause may find themselves submitting request for arbitration. This is due to the perceived potential advantages of Alternative to Dispute Resolution (ADR) over judicial proceedings, such as the flexibility and how less costly it is. In times of economic and financial hardship like this, individuals and parties may find it difficult to provide for legal matters arising from the Covid-19 issues. The legal budgets of companies are dwindling due to the disruption of the production and supply caused by the lockdown in some parts of the world. This article focuses on the third-party funding in Arbitration in a post-Covid-19 world. THIRD PARTY FUNDING IN ARBITRATION Third  party funding (TPF)  is when a non-party to a dispute provides all or part of the funding for the legal costs of the dispute to a party in exchange for an agreed return upon the rendering of a favourable decision by the adjudicator, especially where a party is under a financial strain. It was originally designed as a means of assistance for companies or parties which were struggling to sustain their claims in arbitration or litigation. Third party funding involves the formation of a legally enforceable contract between the funder and funded parties, where the funder receive a percentage of the amount recovered if the litigation is successful, commonly in the range of 25-40% percentage of the cut they take, or where it is based on the financial necessity of a party seeking fund to sponsor their meritorious claims. Additionally, the funding party may agree to pay the costs incurred by the opposite party, if the opposite party is under resourced. The funder has the hopes of getting returns once the dispute is settled or the award made. If the case is unsuccessful, the funder loses its investment, receives no success fee and has no recourse against the funded party.  The consideration for the funding agency necessarily includes meritorious claims, pursued by motivated claimants and  a percentage of the compensation-award granted in the arbitration. Cases considered unsuitable for funding are divorce and personal injury cases. Over the years, there has been a marked increase in third party funding. Today, it is commonly adopted in commercial activities, and also State-to-State arbitration, as stated in SA Veolia proprete (Formally SA Onyx) V. Foris AG.[ii] The global community has accepted the process, and the framework for the process is being considered with Singapore and Hong Kong as notable examples. In Nigeria, a recent amendment to the Arbitration and Conciliatory Act via an amended bill,[iii] which grants  the cost of obtaining third party funding to be included in arbitration costs has been welcomed by all, this effectively legalises TPF in arbitration but not litigation in the country. It is common to ensure third party funding is domiciled in the jurisdiction where the arbitration is seated. Some countries have restrictions that forbids third party funding (TPF), for example, under law of champerty and maintenance, which are common law doctrines, to safeguard a party\’s best interests and protect the administration of justice against abuse from non-parties. Maintenance is the improper intermeddling in a lawsuit by a party with no legal interest in it. Champerty is a subspecies of maintenance and arises when a \’maintainer\’ shares in the profits of litigation. These laws are referred to as antique laws, which prohibits the outside financing of litigation and has been abolished in some jurisdictions, such as Massachusetts, and New York in the United States, this is to further aid the development of TPF; as stated in Arkin v Borchard Lines.[iv] THIRD PARTY FUNDING IN A POST-COVID-19 WORLD As the Covid-19 global pandemic has caused the economic sectors of various countries to be paralyzed, third party funding is likely to increase in usage because parties may want to offset some of the risk associated with costly arbitration, particularly if the award made by the tribunal is not favorable to them. Funders also are more likely to fund cases which involves damages, because the same phenomenon that is causing parties to seek out disputes funding is forcing funders to proceed with caution and funding arbitration matters is a high-risk investment. Third party funding in this period will enable companies to invest their money for a better efficiency and growth in their services, by moving legal fees and expenses off their own balance sheets. Third party funding has the potential to ensure that disputing parties has the sufficient resources to meet all legal costs that arise from the arbitration proceedings. Funders in Third party Funding includes, specialised third party funders, insurance companies, investment banks, hedge funds and law firms. There will likely be an influx of cases after this pandemic ends, as many courts have been closed or restricted to limited operations as they seek to implement new technologies to facilitate virtual hearings. International arbitration too has been impacted, however, as a flexible and dynamic procedure, where technology and procedural innovations have been in use by some for many years, it has been in a good position to respond to the new ways of

*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