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

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

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

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