The ‘What?’ Questions
Q: What is ADR? Answer by Dr Emilia Onyema
- ADR is the acronym for ‘Alternative Dispute Resolution’ processes.
- These are alternatives to adjudicative processes of litigation, arbitration and adjudication.
- ADR is generally classified into at least three types: negotiation, mediation, and conciliation.
- In negotiation, the disputing parties try to resolve their dispute by themselves. If this fails, they invite a third party neutral to assist them with resolving their dispute.
- This may be through mediation or conciliation which may be used interchangeably.
- In mediation, the third party neutral known as a mediator, facilitates or helps the parties find a solution to their dispute. The mediator does not impose a solution on the parties.
- In conciliation, the conciliator, is more actively engaged and may suggest solutions to the parties.
Q: What is ICSID? Answer by Dr Emilia Onyema
ICSID is the acronym for the International Centre for the Settlement of Investment Disputes which administers disputes similar to arbitration centres or institutions.
ICSID however is peculiar in several regards such as:
- It is established by Treaty: that is, the Convention on the Settlement of Investment Disputes between States and Nationals of other States concluded in Washington D.C., which came into force on 14 October 1966.
- This Convention was sponsored by the World Bank as a means of promoting the free flow of international investment globally.
- As at today (27 March 2019), ICSID has 154 contracting parties, 48 of which are African states.
- It administers investment disputes in accordance with Article 25 of the Convention either through arbitration, conciliation, and fact-finding. Each process has its own set of rules. Mediation is included in the 15 March 2019 published proposed ICSID amendments.
- ICSID disputes can be under the Convention or Additional Facility Proceedings.
- Parties can choose the neutrals, or these can be appointed by the Chairman of ICSID Administrative Council. However, only states can nominate arbitrators or conciliators onto the Panel lists.
- The ICSID system is described as closed because an ICSID award can only be challenged within the system through its annulment procedure (Article 52 ICSID Convention).
- ICSID member states undertake to enforce ICSID awards in accordance with Article 54 ICSID Convention.
- Finally, ICSID contributes to the development of international investment law through the publication of its cases and its ICSID Review-Foreign Investment Law Journal, published by OUP.
- ICSID website: icsid.worldbank.org
Q: What does an arbitrator do? Answer by Funke Adekoya
- The arbitrator sets out the procedure which will allow each side to submit their evidence.
- The arbitrator gathers all the evidence from the claimant and the respondent.
- They will consider the complaint based only on the written claim and supporting evidence.
- If the case is complex and written evidence is not enough to decide the outcome, the arbitrator can meet with both parties to determine the process for obtaining further evidence.
- It is the duty of the arbitrators in international arbitration to be independent of the parties and in an unbiased way and in accordance with due process and the applicable lex arbitri and arbitration rules to make themselves acquainted with the facts of the case and the claims, allegations and defences of the parties and, within a reasonably short period of time, to make a reasoned award, based upon the applicable law, which fulfils the requirements for the award to be enforceable.
- The primary duty of arbitrators is to make sure that the Award is enforceable at law.
Q: What are IIAs? Answer by Chrispas Nyombi
- An International Investment Agreement (IIA) is a type of treaty between countries that addresses issues relevant to cross-border investments, usually for the purpose of protection, promotion and liberalization of such investments.
- Most IIAs cover foreign direct investment (FDI) and portfolio investment, but some exclude the latter. Countries concluding IIAs commit themselves to adhere to specific standards on the treatment of foreign investments within their territory.
- IIAs further define procedures for the resolution of disputes should these commitments not be met. The most common types of IIAs are Bilateral Investment Treaties and Preferential Trade and Investment Agreements.
- Bilateral investment treaties deal primarily with the admission, treatment and protection of foreign investment. They usually cover investments by enterprises or individuals of one country in the territory of its treaty partner.
- Preferential Trade and Investment Agreements are treaties among countries on cooperation in economic and trade areas. Usually they cover a broader set of issues and are concluded at bilateral or regional levels. In order to classify as IIAs, PTIAs must include, among other content, specific provisions on foreign investment.
- International Taxation Agreements and Double Taxation Treaties are also considered as IIAs, as taxation commonly has an important impact on foreign investment.
Q: What is international investment arbitration? Answer by Chrispas Nyombi
- It represents the settlement of international investment disputes between foreign investors and host States by arbitration.
- However, as there are different ways to institute arbitral proceedings, the structural and substantive aspects of international investment arbitration are coloured by the mode of commencement of arbitration.
- In investment contract arbitration, the legal basis for the arbitration is an arbitration clause in a contract which is binding on all contracting parties.
- In investment treaty arbitration, however, the legal basis for arbitration is a binding offer in a treaty clause by a host State to arbitrate with all protected investors, which any protected investor is then free to accept or reject. For this reason, the latter has been referred to as “arbitration without privity,”.
- There is also a third category of consent to investment arbitration by acceptance of a unilateral offer of a State through domestic investment laws.
- Many investment treaties also record an agreement between the Contracting States to arbitrate disputes arising from the interpretation or application of the treaty.
- Investment treaty arbitration encompasses investor-State arbitration, which may have a variety of legal bases, and also State-to-State arbitration.
Q: Que fait un Médiateur? Répondre par Thierry Ngoga
Avant de parler de ce que fait le Médiateur, Que ce qu’est la médiation?
La médiation est l’un des mécanismes de règlement extrajudiciaire des différends. Il s’agit d’un processus consensuel, fondé sur l’autodétermination, qui implique que les parties en conflit font intervenir une tierce partie impartiale pour aboutir à une solution à leur différend. Cette solution aux différends offre donc un résultat « gagnant-gagnant »
Alors, qui est un médiateur?
Un médiateur est un intermédiaire qui utilisera différentes techniques pour placer les parties dans la meilleure position possible pour trouver un règlement acceptable. Cela peut inclure poser des questions, transmettre des offres et présider des réunions communes des parties.
Que fait un médiateur?
- Le médiateur assiste et guide les parties vers leur propre résolution du différend. Le médiateur ne décide pas du résultat, mais aide les parties à comprendre et à se concentrer sur les problèmes nécessaires à la résolution du différend.
- Le rôle du médiateur est unique car il est totalement neutre et impartial. Cette neutralité offre aux deux parties la possibilité d’examiner leurs revendications dans un environnement confidentiel.
Les fonctions du médiateur incluent entre autres:
- Mener une médiation de manière juste, impartiale et en toute confidentialité.
- Refuser ou renoncer à une médiation si le médiateur ne peut rester impartial et de rappeler les parties que c’est à elles de décider si l’affaire est conclue ou non lors de la médiation.
Q: What does a mediator do? Answer by Thierry Ngoga
- An intermediary who will use different techniques to put the parties in the best position possible to find a settlement that is acceptable. This can include asking questions, conveying offers and conducting and chairing joint meetings.
- The mediator assists and guides the parties toward their own resolution. The mediator does not decide the outcome, but helps the parties understand and focus on the important issues needed to reach a resolution.
- The role of the mediator is unique being completely neutral and impartial. This neutrality gives both parties the opportunity to consider their claims in a confidential environment knowing that what is discussed will not be passed on to the other side without their express consent.
- The mediation is conducted on a without prejudice basis and any agreement reached is non-binding until such a time as both parties sign a settlement agreement.
Q: What is the role of counsel in arbitration? Answer by Tayeb Hassabo
- Under most national arbitration statutes and institutional arbitration rules, parties are given the right to choose whether they wish to be represented by external counsel or would rather represent themselves (pro se parties).
- Sometimes parties opt to represent themselves in arbitration proceedings rather than retaining external counsel. That is especially likely in disputes involving primarily technical issues (such as commodities disputes, smaller construction matters, and some financial matters).
- Nonetheless, in the vast majority of substantial international commercial and investment arbitrations, parties retain external legal counsel, usually counsel with expertise in arbitration as representatives.
- Whether the parties are pro se or represented by lawyers, the equality of arms may be affected due to different degrees of expertise, willingness or ability to commit resources.
- A pro se party may not fully understand the arbitration process or the substantive legal issues which are in dispute, putting that party in a less advantageous position when it comes to effective presentation of its case.
- The same result may follow where a party retains external counsel, but limits the resources available for case presentation, either through budgetary, staffing or other limitations, or selects less-experienced, but less-expensive, counsel.
- In interstate and investment arbitration, state parties not infrequently choose to proceed without external counsel, or with limited involvement of external counsel, often for exactly these reasons.
Q: What do parties want from arbitration? Answer by Xander Meise
- An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal in an arbitration, and is similar to a judgment in a court of law.
- It is referred to as an award even where all of the claimant’s claims fail (and thus no money needs to be paid by either party), or the award is of a non-monetary nature.
- Although arbitration awards are characteristically an award of damages against a party, tribunals usually have a range of remedies that can form a part of the award.
- The tribunal may order the payment of a sum of money (conventional damages).
- The tribunal may make a declaration as to any matter to be determined in the proceedings.
- Arbitration is particularly popular as a means of dispute resolution in the commercial sphere. One of the reasons for doing so is that, in international trade, it is often easier to enforce an arbitration award in a foreign country than it is to enforce a judgment of the court.
- Under the New York Convention 1958, an award issued in a contracting state can generally be freely enforced in any other contracting state, only subject to certain, limited defences.
Those defences are:
- a party to the arbitration agreement was, under the law applicable to him, under some incapacity, or the arbitration agreement was not valid under its governing law;
- a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present its case;
- the award deals with an issue not contemplated by or not falling within the terms of the submission to arbitration, or contains matters beyond the scope of the arbitration (subject to the proviso that an award which contains decisions on such matters may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those matters not so submitted);
- the composition of the arbitral authority was not in accordance with the agreement of the parties or, failing such agreement, with the law of the place where the hearing took place (the lex loci arbitri);
- the award has not yet become binding upon the parties, or has been set aside or suspended by a competent authority, either in the country where the arbitration took place, or pursuant to the law of the arbitration agreement;
- the subject matter of the award was not capable of resolution by arbitration; or
- enforcement would be contrary to public policy.
Q: What does an arbitration centre do? Answer by Ismail Selim
- An arbitration centre is a specialised institution that takes on the role of administering the arbitration process.
- Each institution has its own set of rules which provide a framework for the arbitration, and its own form of administration to assist in the process.
- Some common institutions are the London Court of International Arbitration (LCIA) and the International Chamber of Commerce (ICC).
- Often the contract between two parties will contain an arbitration clause which will designate a particular institution as the arbitration administrator.
The most important advantages are:
- The availability of pre-established rules and procedures which ensure the arbitration proceedings begin in a timely manner;
- Administrative assistance from the institution, which will provide a secretariat or court of arbitration;
- A list of qualified arbitrators to choose from;
- Assistance in encouraging reluctant parties to proceed with arbitration; and
- An established format with a proven record.
- Institutional arbitration saves parties and their lawyers the effort of determining the arbitration procedure and of drafting an arbitration clause, which is provided by the institution.
- An institution’s panel of arbitrators will usually be made up of experts from various regions of the world and include many different vocations. This allows parties to select an arbitrator possessing the necessary skill, experience and expertise to provide a quick and effective dispute resolution process.