THE OI JOURNAL I S S U E
1
#BUILDBACKBETTER WHAT DOES THAT EVEN MEAN?
2 0 2 1
WHEN IS A CONFLICT NOT A CONFLICT: A STEP-BY-STEP GUIDE ON MANAGING CONFLICT AVOIDANCE
DDRS THE FUTURE
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CONTENTS Message from the CEO and Founder of AOI
3
Message from the Editor
4
When is a conflict not a conflict
5
Listen, Practise, Reflect
7
#BuildBackBetter
9
Arbitration in Ireland
11
DDRS - The Future
13
Emergency Arbitration
14
Virtual Hearings and ‘Due Process’ Concern: A tale of two Jurisdictions
17
Mediation & Ancient Greek Mythology
20
ADR Fun
22
Editor:
Mahek Virani
Editorial Board:
Weronika Skowronska
Executive Director: Kim Kortlepel
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MESSAGE FROM THE CEO AND FOUNDER OF Dear Supporters, Welcome to the first AOI Journal. I am delighted that on the eve of the 5th anniversary of ADR ODR International, the vision of having our own ADR and ODR Journal has become a reality. In 2016, when I was working with colleagues to create the vision of AOI, I wanted our organisation to be a thought leader and to be able to contribute effectively to the debate on where and how ADR and ODR services and training would evolve. We wanted to shape the discourse with global views, cross cultural views and most importantly, everyone’s views.
CEO & Founder: Rahim Shamji
Nearly five years later, the first AOI Journal has contributions from individuals and organisations from around the world reflecting the organisation’s global presence as well as giving a voice to a plurality of views and processes. The aim is that the journal grows and becomes a regular feature and contributor to the global understanding of ADR and ODR. The COVID-19 pandemic has clearly got us all thinking about the new normal and how we will navigate the new emerging processes and challenges. I am sure this journal will continue to help educate and inform all involved. Finally, I would like to thank Kim Kortlepel, Weronika Skowronska and Mahek Virani for driving the AOI Journal with great professionalism and efficiency. These activities are a labour of love which come through very clearly in this first edition. I welcome all readers to consider submitting your thoughts and activities to the coming editions. Happy Reading, Rahim Shamji
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MESSAGE FROM THE EDITOR Can you imagine how your daily life would change if everyone knew what Alternative Dispute Resolution and Online Dispute Resolution was and how it could benefit them? There would be fewer “I’m going to sue you” threats and more “we need to get someone to help us” exclamations. The AOI Journal is a step toward that future. This journal and the amazing team behind it are dedicated to creating and sharing thought leadership on conflict resolution. If you are a dispute resolution specialist and peacebuilder, this journal is for you.
Editor: Mahek Virani
I am honoured to introduce the first edition of the AOI Journal to you, but first I will give a quick introduction of myself. My name is Mahek Virani and I have the privilege of being the editor of this journal. I have a rich and diverse background that includes business administration and management, religious studies and Islamic studies and humanities, entrepreneurship, legal studies, mediation, negotiation, coaching, and training. I gained this experience through undergraduate and postgraduate education, travelling, international business development, and - one of the highlights of my experiences - ADR ODR International training. The AOI Journal is ADR ODR International’s newest endeavour to promote Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) to continue to be the thought leader in the field. The Journal is filled with valuable content around the state of the field and best practices in conflict resolution. We also want to make it engaging for our readers (that’s you!) and include some fun and interactive bits as well. Inside the first edition, we highlighted the trends toward ODR and some of the benefits and challenges the new space and new world is creating. Enjoy your journey through the AOI Journal. If you would like to submit an article, ADR fun or an advertisement for the next edition, please email aoijournal@adrodrinternational.com.
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WHEN IS A CONFLICT NOT A CONFLICT: A STEP-BY-STEP GUIDE ON MANAGING CONFLICT AVOIDANCE BY: EHSAN ALI AND ALNOOR MAHERALI OF VENN MEDIATION People often say that they don’t like conflicts and
are unavoidable and arise daily in our work life,
will make every effort to avoid them. Many of us
friendships, romantic relationships, and family
know someone like this. Some of us are someone
dynamics. They can be simple matters like
like this. While the prospect of addressing
figuring out where to go to dinner. They can also
conflicts can seem daunting, the cost for ignoring
be as complex as dividing up a multi-million-
them all together can be huge. In fact, in many
dollar estate or settlement between siblings or
cases,
partners who loathe each other.
avoidance
can
be
exhausting
and
debilitating. Big or small, conflicts are going to happen. So how does a person effectively manage
The second step is to understand that most
the spectre of conflict?
conflict avoidance arises out of fears of upsetting others and making the situation worse. But
The first step is to acknowledge that ‘conflicts’
oftentimes doing nothing can also make the
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situation worse. The key is to reframe conflict in
hostage
negotiations
or
international
peace
our minds from a ‘fight’ to the simpler matter of a
treaties. Mediation has many practical uses: from
difference in perspective. Or like in physics, two
tenants unable to pay their landlords, to siblings
bodies trying to occupy the same space at the
trying to figure out the best care for their aging
same time. Rather than viewing the disagreement
parents, and even business partners who feel their
as a negative, we should focus on the positive; a
partnership agreement no longer reflects their
future having moved past the conflict.
relationship. Mediation can make a difficult conversation much easier to have. Trained
Once we can view the conflict as a difference of
mediators help people to communicate their
perspective, we are left with two options: 1) we
concerns
can try harder to convince the other person why
person’s perspective, so that an agreement can be
our own view is right or 2) we can seek to
found.
and
better
understand
the
other
understand the basis for the other person’s view. Resolving conflict often requires you to somehow
So, when is a conflict not a conflict? When it is a
balance both.
pathway to greater understanding and better outcomes.
This is where mediation helps. It's not just for
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LISTEN, PRACTISE, REFLECT. BY: JOY DAVIES, DIRECTOR, CENTRE FOR MEDIATION & DISPUTE RESOLUTION NOTTINGHAM LAW SCHOOL, NOTTINGHAM TRENT UNIVERSITY Do you practise active listening outside a
distraction and not successful mediation. Disp-
mediation in order to improve your skills within
laying attentiveness, interest, encouragement,
it? We all agree that active listening is an
resisting distraction and not interrupting the
important
speaker will be evident. In addition, probing
and
transformative
tool
in
the
mediator’s skills toolkit but is your skill sharp and
questions,
reframing
and
summarising
will
ready for work? Do you reflect on how you may
indicate that the message has been heard. From
sharpen this skill for your practice?
this, the mediator may identify and explore limiting assumptions of the parties which may be
To maintain sharpness of this skill, it has to be
potential barriers to a workable solution. How
regularly exercised and reflected upon. This
effective is your practice of this skill? Does your
means critical reflection on your practice and
active listening facilitate a cathartic thinking
development as an active listener. How will you
environment?
measure improvement? Consider the following questions that might help We know from training and development as
inform your reflection upon your active listening
mediators
skills:
that
active
listening
skills
demonstrated by the mediator is fundamental to facilitating a successful mediation. Displaying
First, what does it mean to you to actively listen to
attentiveness, interest, encouragement, resisting
someone? How do you approach the person to
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whom you are listening? Are they a speaker or a
practice. To what extent do you see active
thinker or both? Does it matter? Do you reflect
listening a permission to remain silent and
upon how much freedom of thought you facilitate
support the thinking process?
in the parties? Could you do better? For how long have you listened to the thinker Secondly, question your assumptions about how
before you start to question? Do your questions
you use what should be the sharpest tool in your
obtain an additional flow of thoughts from the
toolkit. What does your active listening achieve in
thinker? Was there more? How well is the speaker
the parties? Are your questions insightful or a
thinking when you decide to cut them off? Do you
hinderance?
and
allow time for the parties to think? Have you given
summarising intrude on the parties’ thinking
the parties time to think? Or have you pushed the
environment? Do you resist the urge to speak and
process forward at such a pace that they have
interrupt? Do you know when the thinker has
been under too much pressure to do so?
Does
your
reframing
completed their thoughts? Focusing on the thinker and what they are saying without being
The mediator’s creation of a safe thinking space in
preoccupied with responding, takes practice.
private and plenary session will lead to a safe speaking space, and safety too in the knowledge
Thirdly, we know that the skill to question
that articulating thoughts will remove limiting
appropriately emanates from focused listening,
assumptions and lead to workable solutions.
but formulation of the incisive question takes
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#BUILDBACKBETTER WHAT DOES THAT EVEN MEAN? BY: TONY GUISE #BuildBackBetter is an idea that boasts of
process online was unsuccessful. The pilot started
confidence, construction and conclusion. For civil
in February 2021 and lasted six months. It is hoped
justice in England and Wales and the delivery of
that the opportunity to deliver the process online
effective IT confidence, construction and any
will be introduced.
sense of conclusion being reached has been missing. Burdened with an ad hoc approach to the
In January 2021 Sir Geoffrey Vos was appointed as
deployment of IT in the civil courts a system of
Master of the Rolls, the second most powerful
discrete,
been
member of the Judiciary in England and Wales. He
deployed. When the pandemic hit the UK, the civil
has made his purpose to introduce much more
justice system in England and Wales was ill-
ADR with greater integration into civil justice and
prepared.
to deliver effective IT in the civil courts. Without
disconnected
solutions
have
funding he may find realising his ambition In consequence England and Wales now have one
challenging.
of the biggest backlogs of civil court cases in the world.
His aim is to start the journey toward a pluralistic dispute resolution system in which court users
The IT solutions that could be deployed are far
are offered a range of ways to solve their issues
from finished and the funding ran out in
where resolutions will be managed online. Thus
December 2019 with further funding unlikely to be
reforming the binary approach of the courts
provided. The steps taken to address the backlog
which offer a “win/lose” solution.
are few. One notable approach is the Review Day system introduced to divert cases into ADR where
This vision is in keeping with the times, but the
tenants had been unable to pay their rent. The
scale
Judiciary, working with the Ministry of Justice
underestimated. A new platform has been built by
(MoJ) and other sector stakeholders, introduced a
the insurance community to manage mainly
scheme where parties to a possession claim
whiplash type injuries caused by road accidents.
participate in a hearing when the issues in that
This went live on 31 May 2021 and is designed to be
case are reviewed (hence the name: Review or “R”
managed by litigants in person. Other than ad hoc
Day). This involves ad hoc negotiation or
negotiation (which the platform facilitates) there
mediation. In December 2020, the MoJ issued a
is no ADR whether managed online or otherwise.
tender for mediation services which was won by
There is no integration with the MOJ's civil court
the Society of Mediators. A bid to manage the
platforms. Instead a court pack is assembled
9
of
the
challenge
should
not
be
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digitally but then must be printed then posted to
integration in the courts. This is a vision for which
the civil courts with a cheque for the court fee.
I have long argued. On 11 May 2021, in Sir
How many litigants in person have a cheque book
Geoffrey’s
remains to be seen. This process epitomises the
International Disputes Week he announced that a
current thinking at the MoJ.
public/private
keynote
address
collaborative
to
approach
London would
provide the way forward. This speech provides an The opportunity afforded by further Public-
effective roadmap for the delivery of effective IT
Private Partnerships with Platform providers and
in the civil courts of England and Wales we will be
ADR service providers may yet enable better IT
able to #BuidBackBetter.
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ARBITRATION IN IRELAND BY: ZAFIRA HUDANI
There are many advantages of arbitrating in
construction of arbitration agreements is but an
Ireland. Some of the positive benefits include but
example of the significant support which the Irish
are not limited to the legal framework, the
Courts have shown for the arbitral process”.(5)
physical location, and skilled professionals that
Ireland is a country that is able to provide a
attract international arbitrations to Ireland.
neutral seat in order to conduct an arbitration.(6)
Legal Framework
The Arbitration Act 2010 (“the Act”) is the legislation that governs arbitration in Ireland. The
In Ireland, the concept of arbitration as a
Act has “adopted the UNCITRAL Model Law in its
preferred method of alternative dispute resolution
entirety into the laws of Ireland”.(7) A very recent
and the principle of party autonomy are key
example of the application of the UNCITRAL
features of the legal system.(2) Ireland “is now the
Model Law can be found in the case of Narooma v
only member of the European Union that operates
Health Service Executive [2020] where it was said
on a court system that is both English speaking
that “the Model Law has the force of law in the
and based on the common law”.(3) Ireland is also a
State
signatory to The New York Convention.(4) As such,
and
commercial
it is also important to note that, “the endorsement
applies
both
arbitrations
to and
international domestic
arbitrations, where the seat of the arbitration is
given by the Irish Courts in the context of the 2010
Ireland, by virtue of Section 6 of the Act”.(8)
Act to the broad or liberal approach to the
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Physical Location and Skilled Professionals
arbitrations. venues
location that allows for easy access to any person
of
Dublin
has
an
that
may
be
used
to
conduct
an
provide onsite technology services.(12)
Ireland. Ireland is business friendly as it provides low taxes and competitive operating costs.(9)
Conclusion
Ireland has become a hub for medical technology and
Ireland has unique characteristics that make it an
internet companies, examples include Medtronic,
attractive venue to conduct arbitrations. It is a
Pfizer and Google. There are major incentives
common-law English-speaking country. The High
which include a 12.5% corporate tax rate compared
Court is responsible for reviewing applications to
to the 35% corporate tax rate in the United States.
arbitrate. There is no appeals process to appeal an
(10) “Ireland is home to one of the most skilled
award, therefore the award is final and binding.
workforces worldwide”.(11) The knowledge that
Ireland is a convenient and globally accessible
these professionals possess about different legal
location. The City of Dublin has its own
systems,
arbitration
institutional
companies
City
arbitration. In addition, the facilities available
or company that may choose to arbitrate in
pharmaceutical
The
International Arbitration Center as well as other
Ireland is a beautiful country with a convenient
companies,
ISSUE 1
rules,
and
diverse
center,
and
the
arbitrators
are
knowledge about different industries allow these
experienced professionals who regularly conduct
professionals to regularly conduct international
international arbitrations.
(1) Picture: iStock/upthebanner. (2018, April 23). Destination Ireland:
Future Arbitrations (Vol 35, #9 September 2020). Lexis Nexus.
7 Photos That Will Make You Fall In Love With Ireland [Photograph]. The Real World from Trafalgar. https://www.trafalgar.com/real-
https://arbitrationireland.com/wpcontent/uploads/2021/01/InternationalArbitrationReport2020-3.pdf
word/ireland-photos-that-will-make-you-fall-in-love-with-theemerald-isle/.
p.1
(2) Ireland for Law. (n.d.). Arbitration in Ireland. Retrieved March 15, 2021, from https://www.irelandforlaw.com/internationalarbitration.
Service Executive. Arbitrationireland.Com. https://arbitrationireland.com/wpcontent/uploads/2021/01/7.Narooma-v.-HSE.pdf (para. 58, p. 13 of decision).
(8) Braniville, D. B. (2020, June 26). Narooma Limited and Health
(3) O’Donnell, H. (2020, September). Mealy’s International Arbitration Report: Why Dublin Ireland, Should Be Considered As A “Hot Seat” For Future Arbitrations (Vol 35, #9 September 2020). Lexis Nexus. https://arbitrationireland.com/wpcontent/uploads/2021/01/InternationalArbitrationReport2020-3.pdf, p. 3.
(9) O’Donnell, H. (2020, September). Mealy’s International Arbitration Report: Why Dublin Ireland, Should Be Considered As A “Hot Seat” For Future Arbitrations (Vol 35, #9 September 2020). Lexis Nexus. https://arbitrationireland.com/wpcontent/uploads/2021/01/InternationalArbitrationReport2020-3.pdf p.3
(4)Arbitration Ireland. (n.d.). Arbitration Ireland. Choose Ireland The Neutral Home for Arbitration. Retrieved March 19, 2021, from https://arbitrationireland.com.
(10) Connect Ireland. (2017). Why Companies will choose to invest in Ireland. https://connectireland.com/reasons.aspx
(5) Barniville, D. B. (2018, December 21). Townmore Construction Ltd –v- Kildare and Wicklow Educational and Training Board, [2018] IEHC 770. Arbitrationireland.com. https://arbitrationireland.com/wp-content/uploads/2021/01/2.KJTownmore-construction-2018-IEHC-770.pdf (para. 30).
(11) Wolters Kluwer Compliance. (2019, December 11). Doing Business in Ireland. WoltersKluwer.Com. https://www.wolterskluwer.com/en/expert-insights/doingbusiness-in-ireland (12) O’Donnell, H. (2020, September). Mealy’s International Arbitration Report: Why Dublin Ireland, Should Be Considered As A “Hot Seat” For Future Arbitrations (Vol 35, #9 September 2020). Lexis
(6) Ireland for Law. (n.d.). Arbitration in Ireland. Retrieved March 15, 2021, from https://www.irelandforlaw.com/internationalarbitration
Nexus. https://arbitrationireland.com/wpcontent/uploads/2021/01/InternationalArbitrationReport2020-3.pdf p.4
(7) O’Donnell, H. (2020, September). Mealy’s International Arbitration Report: Why Dublin Ireland, Should Be Considered As A "Hot Seat" For
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DDRS - THE FUTURE BY: RAHIM SHAMJI It was in 2013 when I first became aware of the idea of Online Dispute Resolution (ODR). I was involved in advising and implementing the European Directives on ODR. I would speak to colleagues about the idea of online mediation and online tools to resolve disputes quickly and efficiently, but their response was ‘it will never happen, you can’t replace mediation and arbitration hearings with machines’. It was a challenge to convince people that it could work, but the law needed to be implemented and across the EU, ADR and tech professionals were coming together to find ‘best practice’. Fast forward to 2016, I set up ADR ODR International (AOI). I was clear that the company name had to have the letters ODR so that everyone involved would be clear that this organisation was accepting and developing the future where ODR would have a clear presence. We created our training programmes to include ODR training as standard to ensure tomorrow’s ADR professionals understood the importance of ODR. As we enter the second half of 2021 still in the midst of the COVID-19 pandemic we are clear that, had we not had access to technology we would have suffered even more both personally and professionally. From hosting online mediations, arbitration, trials to submitting digital documents – the world of dispute resolution survived. Yes, the backlog in the courts has increased globally but we have been able to show that ODR is not a ‘lessor’ brother or sister, but an equal and possibly better in many ways. So, in December 2020, I launched the new qualification and title ‘DDRS – Digital Dispute Resolution Specialist’.
This
new title would show that the individual has a legal/law degree qualification, arbitration, mediation, negotiation and ODR training from AOI or an equivalent reputable organisation. This title would allow the individuals to navigate cases which had several aspects and processes built in. But most importantly, it would show the individual that this can be done online. As many commentators say, digital is the fourth party to dispute resolution. Understanding it and using it, adds value to the entire process. It is the key to the future of dispute resolution. The courses that AOI now offers lead to the title ‘DDRS’. The future belongs to a multi-disciplinary digital professional. From ARB-MED-ARB to court annexed mediation to other hybrid processes – AOI will produce the best ADR and ODR professionals and give them the recognition of DDRS. If you have trained with us and would like to upgrade to a DDRS, please visit DDRS.online.
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EMERGENCY ARBITRATION: LEGISLATIVE BAN UNDER THE SCAN (INDIAN PERSPECTIVE) BY: GAYATRI VISHAL SHIRDHONKAR “Justice delayed, is justice denied.” - William Edward Gladstone While the origins of the above phrase may be
ericulum in mora – if the relief is not granted it
disputed (some contest that it was first used by
will cause reasonable damage to the parties.(1)
Martin Luther King Jr.), the principle is deeply embedded in many legal systems across the
Part II of the Indian Arbitration and Conciliation
world. The concept of ‘Emergency Arbitration’ is
Act 1996, (“the Act”)(2) recognizes and lays down
burgeoning in the field of Alternative Dispute
procedure to grant interim relief. This power to
Resolution, which is a humble attempt at
grant the interim relief is vested in the courts
furthering this very principle. To put it in layman
under Section 9 of the Act(3) which can be exercised prior to the constitution of an arbitral
terms, ‘Emergency Arbitration’ is an expedited
tribunal. Subsequent to the constitution of an
arbitration process wherein an instantaneous
arbitral tribunal, the arbitral tribunal, under
relief is requested by the parties to protect the
Section 17 of the Act(4), can exercise the same.
subject matter of the dispute, in a scenario where
However, “interim relief” under these provisions
an arbitral tribunal is yet to be constituted. An
does not expressly include the constitution of an
‘Emergency Arbitrator(s)’ is/are appointed to look
emergency arbitral tribunal. “Interim relief”
over such exigent situations. This helps in
under
diffusing a pressing situation which may cause
the
above
mentioned
provisions
is
pertinent to the subject matter of the dispute. No
irreparable damage to the subject-matter of the
direction for appointment of the tribunal under
dispute or the parties themselves. The importance
pressing situations or fast-tracking of the arbitral
of an expedited decision under this scenario
proceedings, in any manner, can be made under
cannot be stressed enough. The entire process
this.
holds no value if it is not timely. Thus, while formulating rules for the process, one must bear
The 246th Indian Law Commission Report (5)
this in mind.
(Commission
Report
in
August,
2014
and
Supplementary Report in February, 2015) made
The effectiveness of an Emergency Arbitration is
various
primarily based on two concepts:
recommendations
to
make
India
a
favoured seat for Arbitration. One of these recommendations was to amend Sections 11 of the
Fumus boni iuris - Reasonable possibility that the
Act(6) (which deals with Appointment of
requesting party will succeed on merits;
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Arbitrator(s)) in a way to include the appointment
While ADR mechanisms in India are at its nascent
of ‘emergency arbitrator(s)’ as it is a popular
stages, the country is determined to develop a
remedy for speedy relief adopted by leading
culture which is conducive to it. Many judicial
international arbitration institutions like the
pronouncements and legislative amendments
Singapore International Arbitration Centre (SIAC),
point towards a pro ADR approach. In furtherance
Hong Kong International Arbitration Centre
of the same, espousing this concept will go a long
(HKIAC), Stockholm Chamber of Commerce (SCC)
way in projecting this positive shift in approach.
and International Centre for Dispute Resolution (ICDR).
(1) Venancio D’Costa,Astha Ojha, India: Status Of Emergency
(2) Hereinafter referred to as “the Act”.
Arbitration In India: From The Perspective Of Domestic Arbitrations,
(3) S 9. Arbitration and Conciliation Act, 1996.
Mondaq, available at https://www.mondaq.com/india/arbitrationdispute-resolution/976170/status-of-emergency-arbitration-in-
(4) S 17. Arbitration and Conciliation Act, 1996.
india-from-the-perspective-of-domestic-arbitrations/?
(5) 246th Indian Law Commission Report, 2014.
t/ype=mondaqai&score=95,%20last%20seen%20on%2021/08/2020
(6) S 11. Arbitration and Conciliation Act, 1996.
y-arbitration-and-its-enforceability/, last seen on 05/04/2021.
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VIRTUAL HEARINGS AND ‘DUE PROCESS’ CONCERN: A TALE OF TWO JURISDICTIONS BY: RAHUL KUMAR Arbitration as a mechanism of dispute resolution
regard must be given to the provision enshrined
has been the most sought mechanism for private
under Section 18 as it would then restrict the
justice. The unprecedented time that this world is
challenge of the award(2) or the proceedings on
going through in the wake of a deadly pandemic
the grounds of violation of due process.
COVID-19 has forced the courts across the world The Indian Supreme Court has also come up with
to opt for remote hearings. Considering the quick
guidelines ("SC Guidelines”)(3) to efficiently resort
shift from physical to virtual hearings, there have
to virtual justice in light of the current pandemic.
been various “due process” concerns surrounding
Pursuant to these guidelines, the Arbitral tribunal
the virtual hearing in the Arbitration domain. This
has moved to virtual mediums keeping all due
article endeavours to address this concern by
process concerns in mind to ensure that it is just
analysing the position under the Indian and
for both parties.
Singaporean Law.
As far as Singapore is concerned, the Law of
Virtual Arbitration: Legal Premise
Singapore flows from the Model Law which has
Under the Indian Jurisdiction, the Arbitration &
been
Conciliation Act, 1996 (“the Act”) does not
Arbitration Act (“IAA”). Additionally, even if the
specifically provide for virtual hearings. However,
tribunal resorts to the virtual medium, it must
Section 24 of the Act(1), which talks about the
take into consideration the concerns of due
‘hearings and written proceedings’, mandates the
process and give ample opportunity to the parties
parties to mutually decide on the mode of hearing
to present their case.(4) Further, Section 24(b) IAA
which can be either physical or virtual depending
provides that an award may be set aside on the
on their agreement, failing to which tribunal gets
premise that “a breach of the rules of natural justice
the authority to determine an effective mode for
occurred in connection with the making of the award
and
eliminate
due
the
International
prejudiced”. However, it is interesting to note that
the Act does not define ‘oral hearings’. Though, to fairness
within
by which the rights of any party have been
conducting hearings. It is interesting to note that ensure
incorporated
the applicant is required to establish: which
process
principle of natural justice has been breached,
concerns, Section 18 of the Act, provides for ‘equal
how has it been breached and what its connection
treatment of parties’, according to which, (a)
is to the current proceeding or the award; and
parties must be treated equally and (b) a full and
lastly the prejudice caused by such breach.(5)
fair opportunity must be given to each party to
Article 18 of the Model Law also mandates that the
present their case.
parties should be treated equally. They must be given an equal opportunity of a proper hearing
Therefore, even if the virtual medium is chosen,
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ensuring that due process concerns of the parties
the tribunal has considered the concerns of delay
are well addressed. The above position clarifies
and due process diligently and treated both
that the Singaporean and the Indian position duly
parties equally.
addresses “due process” as a basic tenet of justice. Challenging the Award Procedural Fairness v Delay
As far as the Indian Jurisdiction is concerned, a
After understanding the importance of “due
party can clearly resist an award on the ground of
process”, an important question that arises here
its inability to present its case.(8) The apex court
is, whether the tribunal will consider due process
in Vijay Karia also propounded a test to determine
concerns over delay and how the tribunal will
the inability of a party to present its case and the
strike a balance between these.
test was: “Whether factors outside the party’s control have combined to deny the party a fair hearing”.(9)
To answer the above questions, when we look into
Hence, it is clear from here that a party can resist
few of the institutional rules like (i) Rule 19.3 of the
the enforcement of an award.
Singapore
International
Arbitration
Centre
(“SIAC”) (2016) which mandates that, “just after the
Nevertheless, refusing an award based on due
constitution of the tribunal, a preliminary meeting
process concern might not be a good idea in the
shall be conducted with the parties by suitable means,
Singapore Jurisdiction. The decision of the
to discuss the procedures that will be most efficient
Singapore Court of Appeal (“SGCA”) in China
and appropriate for the case”; (ii) the London Court
Machine New Energy Corp v Jaguar Energy
of International Arbitration (“LCIA”) Rules (2014)
Guatemala LLC and another (“Jaguar Energy”)(10)
mandate that in order to avoid unnecessary delay
clarified the position regarding the right of a party
and expense, the arbitral tribunal has the duty to
to a full opportunity to present one’s case. The
adopt suitable procedures for the conduct of the
SGCA in this judgment held that, “the right to a full
arbitration(6); and also, (iii) Article 22 of ICC Rules
opportunity to present one’s case is not an unlimited
provides that “the arbitral tribunal and parties shall
right and the parties’ right to be heard is impliedly
make every effort to conduct the arbitration in an
limited by considerations of reasonableness and
expeditious and cost-effective manner, having
fairness, especially in cases where the complaint is
regard to the complexity and value of disputes”.(7)
that the failure to grant some sort of procedural accommodation to a party has adversely impacted
Therefore, it appears prima facie that even if a
that party’s due process rights”.(11) The court also
party objects to a remote hearing, a tribunal may
added that it will go on to examine if the conduct
direct it. Yet, in order to do so, the tribunal should
of the tribunal was just and fair and it took all
consider factors favouring both parties and must
considerations to balance the interest of the
not act arbitrarily, thereby causing injustice to any
parties and such conduct of the tribunal falls
of the parties. An award can only be successful if
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within the boundaries of what a “reasonable and
diligently towards welcoming the new data law
fair-minded” tribunal in such a condition might
which will address the concerns of data and
have done.(12) Further, SGCA held that, “the court
privacy. The world has also adapted to witness
should accord a margin of deference to the tribunal
examination and the use of 360-degree cameras.
in its exercise of procedural discretion. Deference is
The pandemic which forced us to use technology
accorded in recognition of the fact that (i) the
in every aspect of life is being enhanced daily to
tribunal possesses a wide discretion to determine the
address
arbitral procedure, and (ii) that discretion is
stakeholders. The changes will take some time to
exercised within a highly specific and fact intensive
be effective but arguably this new normal is going
contextual milieu, the finer points of which the court
to stay forever as this justice system has also
may not be privy to. It has therefore been said that
proved to be economical for the parties.
the
needs
and
concerns
of
the
the court ought not to micromanage the tribunal’s procedural decision-making and will instead give substantial deference to procedural decisions of the tribunal”(13). The SGCA outlines that judicial intervention with the awards by courts can only
(1) Indian Arbitration and Conciliation Act 1996.
be made if it appears that the arbitral tribunal
(2) Sections 34(2)(a)(iii) and Section 48(1)(b) of the Act provides
proceeded with the arbitration “irrationally or
inability to present his case a valid ground of challenge for
capriciously” or “so far removed from what could
domestic awards and foreign awards, respectively.
reasonably be expected of the arbitral process”.(14)
(3) In Re: Guidelines for Court Functioning Through Video Conferencing During Covid-19 Pandemic, Suo-Moto Writ (Civil) No. 5/2020 (Supreme Court 2020),
The tribunals in Singapore can go on to proceed
https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1
with the arbitration after considering the position
_21588_Judgement_06-Apr-2020.pdf.
of both the parties as “the court will not intervene
(4) Section 34 (2) (a) (ii) Model Law.
simply because it might have done things differently”.
(5) Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng Tee”).
(15) Interestingly, in doing so, it is to be observed
(6) Article 14.4, LCIA Rules, 2014.
that justice has been served.
(7) ICC Rules, 2017. (8) Vijay Karia and Others v. Parysmian Cavi E Sistemi SRL and
Other Valuable Concerns
Others (“Vijay Karia”), 2020 SC 177. (9) Ibid.
Other concerns surrounding virtual hearings may
(10 )[2020] SGCA 12
include, (i) witness testimony (ii) confidentiality
(11) Ibid.
and, (iii) data and privacy concerns. To adopt this
(12) Ibid.
medium of justice, these concerns need to be
(13) On Call Internet Services Ltd v Telus Communications Co
addressed. Few of the jurisdictions have duly
[2013] BCAA 366.
considered them and are trying to overcome
(14) Supra at 11
these. For instance, India is working quite
(15) ABB AG v Hochtief Airport GmbH [2006] 2 Lloyd’s Rep 1
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MEDIATION & ANCIENT GREEK MYTHOLOGY BY: VLASSIS TSIROS
Oresteia, Epidaurus Ancient Theatre, near the original Mycenae Palace. Director, Georgia Mavragani, 2019.
One of the earliest cases of mediation was
moment of the action, Orestes truly hesitates but
conceived by an artist who envisioned an ideal
finally, out of fear, obeys Apollo and commits the
judicial system. In fact, it is a plot twist in one of
crime. Consequently, he is now the target of
the first theatrical plays ever written. Aeschylus,
goddesses Erinyes’ (Guilts) merciless wrath, they
the famous ancient Greek play writer, father of
hunt him down and torment his mind.
tragedy, wrote “Oresteia” in 458 BC. Here is the outline of the play. If you like court thriller movies
Orestes, in despair, pleads to the goddess Athena
(or soap operas), well, hold your breath…
for help and she responds by setting up a trial for him in Athens on the Areopagus hill (Areopagus is the name of the Supreme Civil and Criminal Court
Agamemnon, King of Greeks and winner of the
of Greece today). This trial is made up of a group
Trojan War, is murdered by his wife Clytemnestra
of twelve Athenian citizens and is supervised by
and her lover Aegisthus upon his return from
Athena herself. Here Aeschylus sets-up the first
Troy to Mycenae Palace. His son Orestes, escapes
courtroom trial. After the trial comes to an end,
and hides in exile. Some years later, at the order
the votes are tied. Athena casts the deciding vote,
of the god Apollo, he secretly returns and together
the audience is breathless, and she determines
with his sister Electra they plan to kill the couple
that Orestes will... not be killed.
and take revenge for their father. At the crucial
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Erinyes are furious, so Athena decides to organize
exist today. But like Aeschylus, today many people
a “let’s talk” meeting. Erinyes explains during that
also believe in reason, logic, and peacemaking.
meeting that the real problem and the reason for
Life can be a tragedy for many people caught in
their fury is that among all gods, the Athenians
stressful and long-lasting disputes. But it does not
hate only them; all they actually want is some kind
have to be that way. We can offer them a twist in
of sympathy. Athena forwards their complaint to
the plot, written by themselves. They can enjoy
the Athenians and Orestes, helping them to realise
the ‘Grace’ of a reasonable and constructive
that the true origins of the dispute are different
agreement. We can use our common history such
Orestes, exhausted, pleads for help to goddess Athena. Oresteia, Georgia Mavragani, 2019.
from what it seemed at first. They understand the
as Aeschylus’ case to improve our shared future.
true problem and promise to stop hating them. An
Mediation, with its unique concept and innovative
agreement is reached, and Erinyes become a
tools, is on the frontiers of this quest for new ways
constructive force of vigilance. Athena then
to solve disputes. We can all take part in this
changes their name from Erinyes to Eumenides
fascinating process, implementing the reality of
which means the Gracious Ones.
the solutions that mediation offers today to the
Aeschylus’ ‘known world’ was full of turbulence.
generations for a more peaceful world.
myths and the wishful thinking of the previous
Wars, violence, social unrest, problems that still
ADRODRInternational
21
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THE AOI JOURNAL
ISSUE 1
ADR FUN
Down: 1. ODR stands for 3. The mediation process is...
Across:
4. A key skill of a mediator
2. WATNA stands for
5. First Stage of the Mediation
7. Fight, Flight and ...?
6. One of the main ingredients of a conflict
8. In which stage do you explore offers?
9. Abbreviation for Alternative Dispute Resolution
10. One of the main benefits of Mediation 11. A great Mediation Book: Getting to ... 12. The "S" in SMART Testing BY: KIM KORTLEPEL
BY: CHRISTOPHER OLSSON LØNES
22
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THE AOI JOURNAL
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