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THERESOLVER

T H E Q UA RT E R LY M AG A Z I N E O F T H E C H A RT E R E D I N S T I T U T E O F A R B I T RAT O R S

UNCITRAL rules revamped to promote greater transparency in investor-state disputes Why the arbitral process proposed for civil legal claims against the UK press needs expert input How to utilise CIArb's Property Disputes Service All the latest news and events from CIArb www.ciarb.org

May 2013

Divorce without acrimony

Why separating couples are turning to arbitration

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Looking to appoint a Dispute Resolver? CIArb-DAS can help you. CIArb Dispute Appointment Service (CIArb-DAS) delivers a range of cost effective dispute resolution services which encompass arbitration, mediation, adjudication and independent expert determination. This service is underpinned by a commitment to first class customer service delivered with integrity and impartiality. Building on CIArb’s position as a leading global professional body in the field of ADR, CIArb-DAS maintains specialist presidential panels comprising of senior practitioners from the fields of law, surveying, accounting, engineering and architecture who are skilled in the use of ADR processes to solve complex commercial and personal disputes.

For more information please contact Waj Khan at ›› E: wkhan@ciarb.org T: 020 7421 7441

Arbitration / Adjudication / Mediation

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CONTACTS Redactive Publishing Ltd 17 Britton Street, London EC1M 5TP T: +44 (0)20 7880 6200 EDITORIAL T: +44 (0)20 7880 6200 E: editorial@ciarb.org Editor: Rima Evans Sub editor: Steve Smethurst Art editor: Adrian Taylor Picture editor: Sam Kesteven ADVERTISING Sales executive: James Condley T: +44 (0)20 7880 7661 E: james.condley@redactive.co.uk PUBLISHER Steve Grice E: steve.grice@redactive.co.uk PRODUCTION Production manager: Jane Easterman Production executive: Aysha Miah

© THE RESOLVER is published on behalf of the Chartered Institute of Arbitrators (CIArb) by Redactive Publishing Ltd (RPL), 17 Britton St, London EC1M 5TP. This magazine aims to include a broad range of opinion and professional issues and articles do not necessarily reflect the views of CIArb nor should such opinions be relied upon as statements of fact. All rights reserved. This publication may not be reproduced, transmitted or stored in any print or electronic format, including but not limited to any online service, any database or any part of the internet, or in any other format in whole or in part in any media whatsoever, without the prior written permission of the publisher. While all due care is taken in writing and producing this magazine, neither CIArb nor RPL accept any liability for the accuracy of the contents or any opinions expressed herein. Printed by Pensord Press Ltd ISSN 1743 8845

CIArb ENQUIRIES

Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP, UK T: +44 (0)20 7421 7444 E: info@ciarb.org W: www.ciarb.org MEMBERSHIP T: +44 (0)20 7421 7490 E: memberservices@ciarb.org COURSES & QUALIFICATIONS T: +44 (0)20 7421 7439 E: education@ciarb.org LEGAL SERVICES T: +44 (0)20 7421 7424 Sandra Greenaway E: sgreenaway@ciarb.org

Vinayak Pradhan

WELCOME TO THE MAY EDITION OF The Resolver. On taking up the Presidency, I attended January’s Board of Management meeting in Bloomsbury Square. It was satisfying to see a candid discussion of the issues facing the Institute and a focus on taking proactive steps to meet these challenges. My Presidential visits started with the Indian Branch, whose members I addressed in early February, both in Mumbai and New Delhi. The branch is working hard to promote the Institute and the cause of arbitration in India. The function in Mumbai was convened by the Mumbai Bar, which is creating a dedicated Arbitration Bar group. In Singapore, I participated in a session at the Law Society’s litigation conference on the future of litigation and arbitration, moderated by Singapore Court of Appeal judge, Justice VK Rajah. It was interesting to note that the number of new cases filed in the High Court of Singapore has diminished. Meanwhile, the Singapore Branch is going from strength to strength. I also visited the East Asia Branch, where I spoke at an event at the Hong Kong International Arbitration Centre. I then participated as an arbitrator in the annual Willem C Vis (East) International Commercial Arbitration Moot. Teams from 93 universities took part. It was initiated by the East Asia Branch and credit goes to the indefatigable Louise Barrington FCIArb for organising it. Our showpiece event this year is CIArb’s International Arbitration Conference in Georgetown, Malaysia, from 22-24 August. The theme is “Tapping Asia’s Growth”. I would encourage members to attend – it will be an opportunity to mingle with people of different cultures and legal systems, all sharing a common belief in arbitration. There will also be speakers projecting the anticipated progress in arbitrations in China and India, apart from keeping up with evolving techniques for dealing with private dispute resolution. A word on CVs too. For the purpose of serving the Institute by getting appointed as neutrals, whether as arbitrators, adjudicators or mediators, the more detailed a CV is, the easier it is to pick someone appropriate. May I suggest that members take some time to review their CVs. In this edition of The Resolver, you can read our cover feature on arbitration and divorce, a piece on how to utilise CIArb’s Property Disputes Service and all the latest CIArb news. With my very best wishes to all members.

I would encourage members to attend our showpiece event

Vinayak Pradhan FCIArb C.Arb

CONTENTS WATCH 4 8

News: Legal Aid changes come into effect in England and Wales; Drug-cheat Lance Armstrong calls for international tribunal to hear testimony Law round-up: Michael Wilson & Partners Ltd v Sinclair & Ors; Gray Construction Ltd v Harley Haddow LLP

MARKETING, COMMUNICATIONS & SPONSORSHIP T: +44 (0)20 7421 7488 Agnes Jumah E: ajumah@ciarb.org

OPINION

EVENTS T: +44 (0)20 7421 7427 Giles Andrews E: roomhire@ciarb.org

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DISPUTES APPOINTMENT SERVICE T: +44 (0)20 7421 7455 Waj Khan E: wkhan@ciarb.org

REGULARS AND FEATURES

DISCLAIMER: The contents of this publication are not intended to be a substitute for either general or specific legal advice on individual matters, and readers are strongly encouraged to seek competent legal advice.

LEADER

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Michael Cover: Is the arbitration service proposed by Lord Leveson fit for purpose? My Toughest Dispute: Robert J Gemmell; Best of the ADR Blogs

How To… utilise the CIArb Property Disputes Service Cover: As courts around the world are squeezed for money and time, arbitration schemes for divorcing couples are gaining momentum CIArb news: CIArb workshop to celebrate International Women’s Day; Branch news What’s On: Round-up of upcoming training courses

Registered Charity N0− 803725

May 2013 | THERESOLVER

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£500

WATCH

the average cost in the UK of resolving property and financial disputes caused by separating couples using mediation. For issues settled in court it is £4,000. Source: UK Ministry of Justice

Rule changes aid mediation Legal Aid cuts and budget restraints to ease court burden court must approve the budgets and take them into account in making procedural orders such as disclosure of documents. A judge may make a costs management order, limiting a party’s recoverable costs by reference to its budget figure. This will reduce the need for detailed assessment of costs after a trial. The approach to proportionality is set to change. Costs may in future be ruled disproportionate and irrecoverable even if it was reasonable or necessary to do the work. This will have a cooling effect on parties determined to win at all costs. The fixed recoverable costs of small personal injury cases have been cut and the doubling of the

financial limit for the small claims track – to £10,000 – will increase the number of cases in which a successful party will not usually recover any solicitors’ costs. All this is set to create more self-represented parties, adding to the burden on the courts and tribunals at a time when the MoJ has cut its own budget. Lawyers fear delays and administrative issues will get worse in county courts. Many claimants will prefer to seek resolution through mediation or any available ombudsman scheme, and professional advisers will reassess the familiar issues of the advantages of arbitration. • Report by Chris Gilbert FCIArb C.Arb, a solicitor and ombudsman.

ALAMY

Costs management rules and legal aid cuts effective from April 1 will bring sharper focus to the economics of litigation in England and Wales. The shake-up is likely to make private dispute resolution even more attractive. The changes come on the back of Lord Justice Jackson’s review of civil litigation costs. This included divorce, employment, medical negligence and welfare cases. Legal Aid is to be withdrawn for these categories, regardless of an individual’s financial position. The Ministry of Justice (MoJ) has made clear that its resources will be focused more on criminal justice. Many of the changes are to be found in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Lawyers, judges and court staff are also getting to grips with the new costs management rules in the 2013 amendment to the Civil Procedure Rules and Practice Directions. As Lord Jackson said: “We cannot go on any longer on the basis that litigation will cost whatever it costs.” The Mercantile, Chancery and Technology and Construction Courts will make their own rules. In other larger “multi-track” cases issued from April, parties will have to exchange costs budgets and keep them updated. The

Private dispute resolution will benefit from the ‘economics of litigation’

Adjudicator to weigh up major grocery disputes A Groceries Code Adjudicator has been appointed in the UK to arbitrate disputes between large retailers and suppliers. The government has appointed Christine Tacon to enforce a code of practice that requires supermarket chains treat their suppliers fairly. The Groceries Supply Code of Practice came into force in 2010. It says that the 10 largest supermarkets with a turnover of more than £1bn should deal with suppliers fairly; pay suppliers within a reasonable time; and not vary trade agreements retrospectively. The Groceries Code Adjudicator will arbitrate disputes; investigate complaints from suppliers; ‘name and shame’ retailers that break the rules and can impose fines in the worst cases. It is not yet established what the maximum fine would be. A bill creating the office of adjudicator is going through Parliament. Until then, Tacon will act as Adjudicator-Designate.

Singapore sees 25 per cent increase in new cases The Singapore International Arbitration Centre (SIAC) handled 235 new cases in 2012, a 25 per cent increase on the previous year. The increase means it is the world’s fastest growing major international arbitration centre, according to SIAC. Total sums in dispute for 2012 amounted to SGD 3.61 billion, this was more than double the 4

amount handled by the centre in previous years. Disputes came from a range of diverse sectors including telecommunications, infrastructure, financial derivatives, energy and insurance. Last year also saw larger, more complex disputes being filed at the SIAC, which has celebrated its 21st year.

In 2012, parties from 39 jurisdictions were involved in cases at SIAC, with mainland Chinese and Indian parties featuring the most frequently. For the first time since 2007, parties from mainland China were the number-one source of cases filed, with India a very close second. Success in these key Asian markets is a significant

achievement for SIAC. The other significant contributors were Indonesia and the USA. A SIAC statement reported: “2013 heralds another successful year for SIAC. We have started the year with a flurry of new cases filed in the first month and are well poised to build on our position as a leader in dispute resolution.”

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“I was none the wiser. Who was telling the truth?” → See My Toughest Dispute, by Robert J Gemmell FCIArb, on page 17

Couples ‘must try to mediate’ and Family Courts; followed by Weston-super-Mare County Court, where more than 2,400 filed (although mostly via the website Divorce-Online); then Leicester, where more than 1,800 couples petitioned for divorce. Figures did not include London. Family Justice Minister Lord McNally said: “All too often I hear stories of families going through expensive and traumatic court hearings but we know that when working out how to split assets and arrange time with the children, mediation is a far simpler and cheaper approach for everyone and leads to better outcomes.

“That is why we are changing the law so that all couples seeking a court order about child contact or a financial matter must attend a mediation information assessment meeting first, to find out about mediation and consider whether it is suitable for them. More people have been using mediation successfully recently.” The average time taken to resolve property and financial disputes caused by separation for a mediated case is 110 days compared with 435 days for non-mediated cases. • What about the use of arbitration in divorce? See feature, page 10

PA

The UK’s Ministry of Justice is to spend £25 million this year – up from £15 million – supporting publicly funded mediation for divorcing couples. The additional funding is expected to meet increased use of mediation from April 2013 when legal aid for divorce cases is being pulled. New laws are also being created to ensure that separating couples must consider mediation to sort out details of their divorce before they decide to go to court. Latest figures show that the highest number of couples, almost 3,000, filed for divorce at Birmingham Civil Justice Centre

Disgraced cycling champion Lance Armstrong (pictured) has called for an “international tribunal” to hear the full details of his doping past and to address professional cycling. Earlier this year, Armstrong refused again to meet with the US Anti-Doping Agency (USADA) to give testimony. In a statement, one of his lawyers, Tim Herman, said Armstrong would only cooperate with an “international tribunal formed to comprehensively address pro cycling, an almost exclusively European sport.” Herman added: “We remain hopeful that an international effort will be mounted and we will do everything we can to facilitate that result.

“In the meantime, for several reasons, Lance will not participate in USADA’s efforts to conduct American prosecutions that only demonise selected individuals while failing to address the 95 per cent of the sport over which USADA has no jurisdiction.” Recent attempts at forming a tribunal have failed. The International Cycling Union is now looking to form a Truth and Reconciliation Commission instead. In January, Armstrong admitted that he used performance-enhancing drugs during his record seven Tour de France championships from 1999-2005. He was stripped of all Tour de France titles last year.

New UN rules on investorstate disputes New United Nations rules for greater transparency in disputes between investors and host countries have been announced. The arbitration rules of the United Nations Commission for International Trade Law (UNCITRAL) have been revamped to ensure a high degree of openness of proceedings, in terms of making documents available to the public, access to hearings and in allowing interested parties such as non-governmental organisations to make submissions. To date, UNCITRAL arbitration rules, which are the second most frequently used rules for investor-state dispute settlement, have been hugely confidential with no or limited information provided to the public. A UN working group has been developing the standards since 2010. They will now need to be approved by the UNCITRAL Commission in June/July and then by the UN General Assembly in September. They will apply automatically to all treaties concluded after their adoption, and work will continue in the working group on a system to permit the application of these rules on transparency to existing treaties. The EU, which has been pushing for greater transparency in investment disputes, has welcomed the rules. EU trade spokesman John Clancy said: “The protection of investment and the availability of investorstate dispute settlement mechanisms play a key role in attracting investors and encouraging economic growth. Having these new transparency rules in place will set a benchmark for all future EU investment treaties. Improving transparency in investor-state dispute settlement is essential.” May 2013 | THERESOLVER

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WATCH Effective mediation at work An updated guide about the effective use of mediation in the workplace has been launched in the UK. Mediation: An approach to resolving workplace issues has been put together by the Chartered Institute of Personnel and Development (CIPD) and the Advisory, Conciliation and Arbitration Service (Acas). Its aim is to provide employers seeking to use mediation in their organisations with examples of good practice and practical advice. It will also help employers, trade unions and employees in deciding whether, and in what circumstances, mediation may be suitable. The latest survey of employers published by the CIPD on conflict management in 2011, showed that 57 per cent of respondents made use of mediation. According to the CIPD, mediation is most effective when it is part of the organisation’s wider approach to people management and reflected in its policies and processes. Andrew Wareing, Chief Operating Officer at Acas, said:

SHUTTERSTOCK

CIPD and Acas issue updated advice on workplace disputes

‘A lack of awareness’ is holding back mediation in smaller organisations

“One of the greatest barriers to the more widespread use of mediation in the workplace is a lack of awareness of when, and how, it can be used to greatest effect. This is especially true for small and medium-sized organisations. This research, which describes successful

practice, makes an invaluable contribution as it can help those employers who are thinking about adopting mediation to learn from those who have more experience in the area.” • To download the free guide, visit: → www.cipd.co.uk/publicpolicy/policy-reports/ mediation-resolving-issues.aspx

New mediation ordinance in HK The new Hong Kong Mediation Ordinance (MO), which was officially enacted in June last year, came into effect on 1 January 2013. The MO applies retrospectively to pre-existing agreements to mediate and past mediations. Its purposes are to: • promote and facilitate the resolution of disputes through mediation, and promote Hong Kong as a prominent dispute resolution centre in the region • provide a regulatory framework for the conduct of mediation. The MO sets out all important definitions of “mediation”, “agreement to mediate” and “mediation communications” and the extent of its application including to the government • give the confidentiality of mediation communications throughout the mediation process the full protection of the law, subject to limited exceptions. The Hong Kong Mediation Accreditation Association Limited (HKMAAL), established as a non-statutory, industry-led body is due to become the sole accreditation body for mediators and the default appointing body where parties cannot agree on the appointment of a mediator.

A new mediation centre has been opened in Hyderabad, India, to ease the burden on the courts. The centre, an initiative set up by the High Court, will be dedicated to family cases in the district and aims to resolve disputes within 90 days. Familyrelated disputes will be priority, but the High Court will also be able to refer other cases such as those related to money suits, property or partition. It was inaugurated in March by Altamas Kabir, the Chief Justice Of India and will be headed by S Ravi 6

Kumar, Secretary of the AP State Legal Service Authority. Kumar said: “There are cases with the lower and high courts where even after seven years litigants are fighting for justice. Through mediation centres, we aim to solve the dispute within days. This way, the number of pending cases will be brought down by a considerable amount. We will not be charging any fee for the mediation.” Sixty senior advocates with more than 15 years experience have been appointed as mediators.

SHUTTERSTOCK

Mediation centre to ease court burden in Hyderabad

Hyderabad: sixty senior advocates have been appointed as mediators

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OPINION ARBITRATION AND THE PRESS

Michael

Cover A system for press regulation in the UK based on the Leveson Report has been approved, though not without political drama. Will a proposed arbitration scheme for civil legal claims against the press be workable?

ONLINE

Join the debate at CIArb’s LinkedIn group → www.linkedin.com

Michael Cover FCIArb is a barrister, Accredited Mediator and Chartered Arbitrator. He is a founder member of ArbDB, the International Arbitration and Dispute Board Chambers and a full member of In Place of Strife, the Mediation Chambers. He can be contacted at Email mc@michaelcover.com and → www.michaelcover.com • This article went to press before the law establishing press regulation was passed.

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IN THE UK, LORD JUSTICE If the publisher concerned fails Leveson, in his long-awaited to become part of the proposed report, recommended that an self-regulatory scheme and arbitral process, described as an hence is not required to use the “Arbitration Service”, should be arbitration service, the court, in established in relation to civil subsequent privacy litigation, legal claims against the press. would be able to deprive the He refers to the press as “the publisher of its costs and the publishers” and this how they Civil Procedure Rules would be will be referenced in this piece. amended accordingly. Lord Leveson says this service The prospect of parties being should draw on independent legal required to use private dispute experts of high reputation and resolution, whether arbitration, ability “on a cost-only basis” to mediation or adjudication, is the publishers usually enough who subscribe to to awake the Cases could be his proposed regular experts screened for their self-regulation on the European suitability for scheme. The Convention on resolution by process should be Human Rights. litigation, arbitration fair, quick and or mediation, so the This proposal is inexpensive, no exception, court would have inquisitorial and and a parallel three ‘doors’ generally free for proposal in the claimants. There Defamation Bill, should be power to hold hearings, which went before Parliament but only when necessary. (but was halted as The Resolver Frivolous and vexatious claims went to press), has attracted such should be capable of being struck attention from Lord Lester of out at an early stage. Herne Hill. He is right to counsel The devil is in the detail. caution, but the argument should The report goes on to say that go further. Private dispute incentives are required to ensure resolution has a vital role to play that publishers sign up to the in our society and economy. self-regulatory scheme. The A better scheme for the press recommendations couple this would recognise the teachings of incentive for publishers with the Frank Sander, Emeritus Harvard incentive for the public of Professor, on the multi-door providing an improved route to courthouse. Cases would be justice for individuals by the screened for their suitability establishment of an arbitration for resolution by litigation, service, run by the regulator and arbitration or mediation, so the staffed by retired judges or senior court would have three ‘doors’. lawyers, whose fees would be Such a scheme would also met by the publishers. recognise what was said by Sir

Peter Cresswell at the Master’s Lecture of the Worshipful Company of Arbitrators in March 2013, where he commended private dispute resolution schemes such as the CEDR ABTA Travel Arbitration Scheme and the City Disputes Panel of the CIArb. In passing, we could note that the much-vaunted Commercial Court in London only has one door! It might also recognise that arbitrators and, indeed, thirdparty neutrals in private dispute resolution, do not have to be and are not always lawyers. There is little need for the controversial proposal for cost sanctions on those publishers who fail to take part in the proposed scheme of self-regulation; the courts already have a wide general discretion on costs and case law points an ability to impose costs sanctions for unreasonable failure to use private dispute resolution, generally mediation. Arbitrators already have quasi-inquisitorial powers under the Arbitration Act 1996. Any arbitration scheme should also be independently run and not run by the proposed regulator. Several independent institutions would be able to run such a scheme: CIArb, CEDR and WIPO. The suggestion of privacy disputes being resolved by private dispute resolution is therefore a good one, but the publishers and the government need to consult those who know about these things in order to come up with the right answer. We are not there yet.  May 2013 | THERESOLVER

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LAW

An overview of recent key court cases

ROUND-UP THE DOCTRINE OF ABUSE OF PROCESS IN RELATION TO A PREVIOUS ARBITRAL AWARD

THE CASE ○ ARBITRATION

Michael Wilson & Partners Ltd v Sinclair & Ors [2012] EWHC 2560 (Comm)

MR EMMOTT WAS A DIRECTOR and employee of Michael Wilson & Partners (MWP). His employment contract provided for arbitration in London. MWP brought arbitral proceedings against Mr Emmott alleging breach of contract and fiduciary duty. MWP claimed, among other things, that Mr Emmott participated in a conspiracy to divert work to a competitor business and that certain shares had been issued to EPIL, a Bahamian company owned by Mr Emmott, for the benefit of Mr Emmott, and these shares should have come to MWP. Mr Emmott contended that the shares were in fact intended for a non-party to the arbitration agreement (Mr Sinclair, a managing director and major shareholder of Sokol) and that they were simply warehoused by EPIL. MWP invited Mr Sinclair to join the arbitration as a party in order that the claims in respect of the shares could be determined conclusively as between all parties concerned. Mr Sinclair refused and yet participated as a witness in the arbitration and funded Mr Emmott’s defence. The tribunal found that there was no breach of fiduciary duty by Mr Emmott and that the shares were beneficially held by Mr Sinclair. Subsequently, EPIL transferred the shares to Mr Sinclair. MWP sought to raise the same issues in the High Court against Mr Sinclair and Sokol (the Sinclair Defendants). The Sinclair Defendants applied to strike out MWP’s claim on the basis that the shares were never received by EPIL on behalf of Mr Emmott. They alleged that they were received by EPIL on behalf of Mr Sinclair and there was therefore no breach of fiduciary duty by Mr Emmott. The application to strike out was supported by Mr Emmott.

The application was opposed by MWP. The Sinclair Defendants maintained that these issues had already been determined against MWP in the arbitration, and that it was an abuse of the process of the court to permit MWP to make a collateral attack on the tribunal’s award. MWP argued that the doctrine of abuse of process was not applicable to this case since Mr Sinclair was not a party to the arbitration and could not rely on it.

circumstances of this case (in particular Mr Sinclair’s involvement in the arbitration) led the court to conclude that the doctrine of abuse of process applied to this case and MWP’s claim was struck out.

○ THE JUDGMENT

The full judgment is available at:

The court held that the underlying factual allegations concerning the conduct of Mr Emmott mirrored those of the arbitration. Although Mr Sinclair was not a party to the arbitration, and court proceedings were therefore the only means by which MWP could bring its claim against Mr Sinclair, the special

○ WHAT IT MEANS

This case provides guidance on the doctrine of abuse of process and collateral attacks on a previous determination in cases where the relevant determination was made by an arbitration tribunal. → www.bailii.org/ew/cases/EWHC/ Comm/2012/2560.html

The court concluded that the doctrine of abuse of process applied to this case

THE LIMITS OF CONFIDENTIALITY IN ARBITRAL PROCEEDINGS

THE CASE ○ ARBITRATION

Gray Construction Ltd v Harley Haddow LLP [2012] Scottish Court of Session CSOH 92

A DISPUTE AROSE BETWEEN Gray Construction Ltd (Gray) and Harley Haddow LLP (Harley) concerning the sums Gray had expended in an arbitration with the National House Building Council (NHBC). The arbitration settled following Gray’s payment to NHBC of £110,000 and it sought to recover from Harley that sum, one-half of the arbitrator’s charges, fees and other expenses in the dispute with NHBC. Harley sought disclosure of the documents concerning the subject matter of the arbitration, including the parties’ pleadings and the terms on which the arbitration settled. The parties had agreed that disclosure of such documents could be granted on the basis that Gray would lodge the documents relating to the arbitration in a confidential envelope so that the court could determine whether to order the disclosure. Harley applied to the court for permission to open the confidential envelope. Gray opposed the motion on the grounds that it would produce an affidavit by Mrs Webster, the solicitor who had acted for it in the arbitration with NHBC and in its settlement, which, according to Gray, would suffice since her evidence could be tested on cross-examination. Harley’s defender disagreed, arguing it was not sufficient as it had a right to prepare for the proof of evidence, including cross-examination, and that it needed to see documents relevant to assessing the reasonableness of the settlement. The parties were prepared to proceed for the purposes of this application on the basis that confidentiality extended to all documents produced or created by or on 8

behalf of the parties in connection with the arbitration. ○ THE JUDGMENT

The court held that there was an implied obligation of confidentiality arising out of the nature of arbitration. The court further held that, under Scottish law, public interest can override such an obligation. If the documents are essential to the action, the court will normally order the production of such documents, but if they are not essential to the action or if the information can be recovered elsewhere without breaching a confidence, the court may exercise its discretion to refuse to order disclosure. In this case, the court decided that disclosure of the documents was necessary to allow Harley to prepare for its proof.

○ WHAT IT MEANS

The case provides a useful illustration as to the circumstances in which the court will override the obligation of confidentiality in arbitration proceedings. The full judgment is available at:

→ www.bailii.org/scot/cases/ ScotCS/2012/2012CSOH92.html Both reports by Tony Marks FCIArb, Director of Legal Services and Julio César Betancourt MCIArb, Head of Research and Academic Affairs at CIArb

The court held that, under Scottish law, public interest can override an obligation of confidentiality

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HOW TO…

…utilise the CIArb Property Disputes Service By Lucy Chakaodza and Waj Khan han Illustration: Cameron Law “This confidential service is suitable for all commercial and residential property disputes”

F

ONLINE

Join the debate at → www.twitter.com/ CIARBDAS → www.linkedin.com and search for CIArb-Dispute Appointment Service Lucy Chakaodza is PR and Communications Executive and Waj Khan is Property Disputes Appointments Service Manager at CIArb. For further information contact Waj Khan at Email wkhan@ciarb.org

FOR THOSE INVOLVED IN ANY type of property dispute, the CIArb Property Disputes Service (CIArb-PDS) offers efficient, flexible alternatives to court. Professionals advising their clients on how to manage and/or resolve property disputes should be able to highlight alternatives to traditional litigation which may be quicker and more cost-effective. CIArb-PDS offers a range of alternative dispute resolution (ADR) services, including arbitration, mediation and expert determination, and this confidential service is suitable for all commercial and residential property disputes.

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How to make an application

Where a contract contains a dispute resolution clause that nominates the President of CIArb to appoint a designated expert, CIArb -PDS will identify a suitably qualified practitioner to act as a neutral third-party resolver. This service is independent and impartial. However, even where the contract does not nominate the President, CIArb-PDS will still be able to assist you if the parties to the dispute may agree to approach

CIA CIArb. b Application A li ti forms f can be b downloaded from CIArb’s website. → www.ciarb.org/das

2 ⁄

Different types of property disputes

 Landlord and tenant Rent reviews, lease renewal and disputes over commercial and residential service charges  Easements rights of way Extent of and repairs of rights of way, general issues regarding extent and easement including drainage and water rights, as well as obstruction of rights of way  Professional disputes Claims by solicitors, architects and other professionals for outstanding fees in propertyrelated matters, as well as claims for professional negligence against solicitors, architects and other professionals for damages  Property ownership and interference Boundary disputes, nuisance by noise, encroachment or smell, and enforcement of restrictive covenant  Utilities Claims for damage caused by utilities to adjacent property

under statutory powers and claims by utilities for damage caused by third parties, including other utilities.

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How a property dispute resolver is appointed Each third-party resolver is selected on the basis that they are a suitably qualified practitioner with specialist knowledge in their field; other criteria that may be used to select the resolver include the geographic location of the parties and the nature of the dispute.

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Understanding the panel process

CIArb-PDS appoints third-party resolvers from several panels. These are comprised of CIArb members who are experienced practitioners, who have attained the appropriate level of qualification and experience. Panel members are regulated by CIArb and provide an independent and impartial service underpinned by integrity and professionalism. May 2013 | THERESOLVER

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ARBITRATION DIVORCE With court systems increasingly under pressure, the use of arbitration in divorce cases is starting to gain momentum across the globe

A decent proposal

NICK LOWNDES

By Rima Evans Illustration: Nick Lowndes

MONEY and time pressures are bearing down on court systems around the world. This is intensifying the case for arbitration in divorce and family law proceedings. As experts in family law continue to raise awareness of the benefits of referral to arbitration, it is clear this way of resolving disputes away from the courtroom is reaching a watershed. In some areas, such as in Ontario, Canada and Australia, family law arbitration schemes have been on offer for some years. However, in others, they are being put in place in relatively quick succession, signalling the momentum

gathering behind this initiative, but also a clear urgency in meeting demand. Two years ago, Scotland welcomed an arbitration scheme which was set up by the Family Law Arbitration Group Scotland (Flags). It is also the first anniversary of a new initiative in England and Wales which allows divorcing couples to resolve family law disputes relating to finance or property for the first time (see The Resolver, January 2012). Meanwhile, in British Columbia, Canada, although the concept of family arbitrations is certainly not untested, an overhaul of the 1979 Family Relations Act, effective from this March codifies family law arbitration. “The use of arbitration in this field is reaching a watershed,” according to Rachael Kelsey, arbitrator with Flags and family law specialist based in Edinburgh. “It comes down to public spending and money – and growing pressure on the court system. This seems to be a problem across the globe.” Georgialee Lang MCIArb, arbitrator and attorney in Vancouver, agrees: “There is a whole plethora of problems with the justice system for family law whether that is in Canada, the US, UK, or myriad other countries. The system fosters disharmony and conflict, and there are lengthy delays and outrageous legal fees.” The use of arbitration in this field is growing as governments realise that May 2013 | THERESOLVER

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ARBITRATION DIVORCE family law courts can be “the worst place for couples to resolve their divorce issues,” Lang adds. Meanwhile, on the demand side, Kelsey points out that cultural changes are coming into play, giving the benefits of arbitration added appeal. “There is more of a service culture generally. People are expecting to be told what the timescales are, what the costs are and so on. That’s not limited to family law. The world has moved on. “Arbitration provides a service that the public sector court service does not, and I don’t think ever will, provide to clients who are fairly commercially savvy,” she says. Some of the advantages of arbitration include it being less acrimonious than court; being able to choose a date and location of hearing convenient to the parties; having privacy and confidentiality (particularly advantageous for high-profile celebrity couples who wish to keep away from the public eye); the process being much faster, more flexible and often cheaper; and having a choice in who hears the case. The latter seems to be a significant point since a criticism reported in several countries is that court hearings tend not to be heard by family law specialists. Lang even goes on to say that in her experience: “Insiders know very well that most judges would opt out of family law cases if they had a choice.” On the other hand, under certain family law arbitration schemes, arbitrators undergo rigorous training and have to meet strict criteria, including having a minimum number of years experience in the family law arena. Beyond the advantages to individuals, these schemes can also bring in savings to the public purse. The arbitral model for family law in Scotland uses rules that were brought in with the Arbitration (Scotland) Act 2010. It can be used for any family law issue including child matters and the arbitrator’s decision is binding. Kelsey concluded the first arbitration under the scheme in Scotland in January. She says: “It is a slow burn process. There are quite a few arbitrations working their way through the system but we never expected to be deluged. It is a new process and people are understandably wary at the moment. It took five to 10 years for people to feel comfortable about mediation. However, she adds: “We have had an extremely positive response from our judiciary and The Law Society.” The comparison with the experience of 12

“Insiders know well that most judges would opt out of family law cases if they had a choice” mediation, which took years to gain momentum, is echoed by Geoff Wilson, Partner at HopgoodGanim and family law specialist in Australia. There, an effective regime for family law arbitration (limited to financial matters such as property settlement, spousal maintenance, financial agreements and bankruptcy issues) with supportive regulations has been in place since 2000. Yet these have not been embraced by practitioners or clients. Wilson says: “Arbitrators have been trained and there is a ready stock of arbitrators available including recently retired Family Court judges. There is a wait and see mentality with practitioners waiting on the larger family law practices in Australia to run a few arbitrations before venturing into uncharted waters.” A year after its launch in England and Wales, the Family Arbitration Scheme run by the Institute of Family Law Arbitrators (IFLA), and backed by CIArb among others, seems already to be making steady progress. The number of arbitrations has just reached double figures. Under this initiative, only financial issues

arising from a dispute during divorce are covered. Although practitioners report, this is hardly limiting since financial matters constitute the majority of family law disputes. Suzanne Kingston MCIArb, Partner in the Family Department at Withers LLP, Accredited Arbitrator and one of the teachers of the IFLA scheme said: “I am really pleased that the IFLA scheme is now up and running. It gives clients the opportunity to have another way to resolve their disputes, which is really important particularly in the current economic climate.” Sir Peter Singer MCIArb, an arbitrator with the IFLA scheme and former High Court Family Division Judge is optimistic the scheme will receive “critical mass” and that a big push may be the withdrawal of legal aid for divorce cases this April. “Come April, when the courts are going to become inundated, people will resort more to arbitration. However its advantages will also become more appreciated as success stories are spread by word of mouth by family law professionals.” What is as yet untested under the IFLA scheme is the fact that, unlike in Scotland, an arbitrator’s decision, relating to a financial dispute following divorce, would not be automatically enforceable under the Arbitration Act 1996 in the same way as a purely civil award. The enforceability of an arbitration agreement during the arbitral proceedings, in the context of a financial dispute following divorce, will depend upon how the courts interpret the applicability of the Arbitration Act 1996 in a family context. Leading lawyers are pushing for statutory reform in this respect. Rhys Taylor MCIArb specialist family barrister and arbitrator explains that as the Law Commission is currently reviewing matrimonial law and is considering having a law related to the statutory enforceability of pre-nuptial agreements why not consider reform of agreements to arbitrate in the family context? Taylor, along with Sir Peter Singer, and backed by leading family law experts, authored a submission to the Law Commission “for statutory provision to be made, alongside the Law Commission’s recommendations concerning nuptial agreements, for acceptance, encouragement and enforcement of the binding agreement into which disputant parties enter when they opt to submit financial issues to arbitration by accredited and regulated family law expert arbitrators such as those who

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HOW ARBITRATION REDUCED ‘TIME AND MISERY’ FOR CLIENTS View from the Inside: Family law arbitrator Dennis Sheridan MCIArb describes his experience of the IFLA process Does this ring a bell? You sit opposite a client whose face gradually lengthens, whose mouth drops and whose eyes widen in dismay and disbelief as you describe how long it takes to bring matrimonial financial issues to a conclusion through the court litigation process. You have advised of the other ways there are to resolve their case but, no matter how enthusiastically you describe mediation, their response is negative and they comment: my ex-husband/wife will only listen to a judge. You encouragingly mention the collaborative procedure and that sadly, too, is dismissed. The case itself does not contain a great value in terms of the assets and capital, far more high street than high net worth - but the parties are at loggerheads on all aspects of their marriage and its financial aftermath. The one thing that your client does not want is for the matter to go on for what might seem to be an interminable period with the prospect of expensive, lengthy and stressful court appearances, most likely before different judges on each occasion. What do you offer? In a recent case, I was acting for a client in such a situation and I suggested arbitration. After explaining what arbitration meant and how the financial issues between the parties could be dealt with more speedily and with less formality than through the courts, and with a final and binding arbitrator’s award as the outcome, the client agreed that I should propose arbitration to the other side’s solicitors. Fortunately, the parties agreed and the arbitration process kicked into action. We agreed on two arbitrators we would be happy to engage and the Institute of Family Law Arbitrators (IFLA) Form ARB1 was completed, setting out the basic issues and submitted to IFLA. Within days, one of our nominated arbitrators confirmed his agreement to be appointed and an initial meeting was arranged. The first benefit of the process had already been felt. Up to this point the parties had not been able to agree on anything, and yet here they were agreeing to ‘think outside the box’ and resolve their financial matters through arbitration. The proposal to arbitrate also led to a

second benefit: the immediate rapport between myself and my opposite number when it came to completing the IFLA Form ARB1 and setting out the issues that we both considered the arbitrator should deal with. Another benefit was felt at the initial meeting with the arbitrator: there was good communication between solicitors and the atmosphere was therefore friendly.

“The relief to the clients was palpable, the pressure and tensions lifted from them” At that initial pre-commitment hearing the arbitrator explained to both parties and to the solicitors present what arbitration was all about and how he suggested they should proceed. He also explained the IFLA scheme rules by which the process would be governed. Most importantly he reiterated what we solicitors had already advised: that once they agreed to arbitration and the process was under way, a central part of their agreement was to be bound by the arbitrator’s decision which would be final and binding upon them. During the initial hearing, the parties, who had barely spoken to each other for quite some time, started to engage with each other, making points jointly to the arbitrator. A rapport was clearly building up between them and the arbitrator as well as between the solicitors and the arbitrator. For the first time, the parties were able to look straight at the decision-maker and hear him talk to them as they, in turn, were able to talk to him. They decided quickly that the arbitrator should be appointed. The preliminary hearing at which fundamentals would be discussed (similar perhaps to a first directions appointment [FDA]) was the next step. The practicalities as to where and when the preliminary hearing should take place were agreed and what should be done meanwhile. In fact

the date selected was just two weeks later. In that time, checklists were to be completed and documents exchanged. The preliminary hearing allowed a full discussion to take place on the issues that had been listed in the Form ARB1 enabling all parties including the arbitrator to prioritise what each was seeking and what was important to each of them. This was a powerful meeting and the clients’ confidence grew, encouraged by the very fact of there being continuity of the same arbitrator. Judicial continuity is something we rarely get in court: here was a chance to see how very important it is and what immense assistance and confidence it gives the clients. At the preliminary hearing’s conclusion, directions were given to prepare for the final hearing. The solicitors were asked to provide written submissions by a specific date, which proved a very beneficial exercise. With submissions exchanged, I asked the arbitrator whether he would be agreeable to a variation of his directions allowing the parties to file counter-arguments by a specific date. The arbitrator readily agreed enabling everything to be ready for the final hearing. This was yet another benefit of having the same decision maker throughout the entire process. Rather than the clients incurring the additional expense of a full oral hearing, with cross-examination, the arbitrator was asked to arrive at his award as a paper-only exercise. By this stage he had the relevant documents, arguments and counter-arguments before him. The relief to the clients was palpable, the pressure and tensions lifted from them – now all they wanted was to have the decision as soon as possible. The detailed award received enabled the clients to get on with their lives. This arbitration from start to final award took four months. For court, over that same period we would not even have reached first base, the FDA hearing date. Arbitration certainly reduced the anxiety and the misery for the clients, and disposing of their case so satisfactorily and swiftly leaves me better able to deal with the next matrimonial case that lands at my door. ‘Have you heard about the Family Arbitration Scheme?’ I shall ask them…

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ARBITRATION DIVORCE are members of the Chartered Institute of Arbitrators and who offer their services under the IFLA scheme.” Taylor adds: “In a divorce scenario, this would mean there would be a way to automatically enforce the agreement to arbitrate provided there had been legal advice and there had been disclosure. It would provide bespoke provision for family law.” A response is expected by the end of the year. Meanwhile, the new laws in British Columbia (BC) were introduced in 2011 to mitigate growing dissatisfaction with the family justice system and provide an alternative to the courts. They set out what family law arbitration is, criteria and training required for being an arbitrator and, crucially, that it’s to be the preferred method of resolution. The laws will allow arbitration in respect of any family law issue. Lang says: “People have been doing arbitration, but this law brings in tight rules and controls. What is of real significance is that its been given credibility by the law saying that arbitration is the preferred method of resolution.” A long-standing criticism of arbitration across the board is that while, in theory, it should be cost effective, in practice, it can rack up huge costs. The fact, too, that an arbitrator charges a fee while a judge in court proceedings is free does raise the question whether the process is a realistic option for the less wealthy. Lang says that in BC this has been a worry. “People have been arbitrating already here and, to date, it’s been used more by high net worth individuals,” Lang admits. “But, I believe, there will be a concerted effort here to make it affordable to those on lower incomes. There are ways to do that by tailoring the arbitration so it’s costeffective, such as, for example, limiting the hearing time.” In the UK, the IFLA scheme has been represented by the British press as an option for the super rich bickering over big-money divorce settlements and who want to maintain privacy. Yet this is a distorted view of what is actually happening on the ground. Singer says: “I’m aware of several low-value arbitrations dealt with by local solicitors that would otherwise have been dealt with at local county court level. Not by any stretch of the imagination are these big-money cases.” Anecdotally, the experience in Australia to date, though limited, has been that the 14

ARBITRATION IN THE COURTS Several key legal cases have served to underline the important role arbitration can play in family law cases, writes Suzanne Kingston who spearheaded family law arbitration in England and Wales

W v M [2012] EWHC 1679 (Fam) This dealt with a Trust of Land and Appointment of Trustees Act 1996. The case involved confidentiality and whether or not the proceedings should be anonymised. Mostyn J concluded: “Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much to be welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed.” It is to be welcomed that such a senior judge endorses the IFLA scheme and arbitration more generally.

T v T [2012] EWHC 3462 (Fam) The case concerned an American couple who, before their marriage in the US, entered into a premarital agreement containing an arbitration clause. Their married life was mainly lived in England and their marriage broke down while they were living there. The husband started divorce proceedings in the US and the wife in England. The wife declined to embark on the arbitration process prescribed by the premarital agreement claiming that she was not bound by any part of it. The husband started proceedings in the US to compel her to do so. The wife then sought an injunction in England to restrain the husband from proceeding with that application. The application for an injunction was refused by Nicholas Francis QC . His

majority of arbitration cases have been undertaken in modest financial cases under legal aid programmes. Kelsey agrees this is not just a route for the wealthy, pointing out that the scheme in Scotland has caught the eye of the Scottish Legal Aid Board. “It is in discussion with Flags about what kind of charging structure could be put in place and what kind of cases could be

judgment has many points of interest including the finding that the arbitration clause was not void on the basis that it ousted the jurisdiction of the court. Francis also considered the separability of the arbitration clause. This case not only shows how important arbitration is becoming as a method of dispute resolution but that it has wideranging implications for the drafting of arbitration clauses in various documents to include prenuptial agreements.

AI v MT [2013] EWHC 100 (Fam) In this case the court (Baker J) approved an arbitration process before a Rabbi in New York under the auspices of the Beth Din to determine all issues following the breakdown of the marriage of an international couple. The issues involved were child abduction, contact, residence, finances and obtaining a get, but the court kept strict control of the process so as not to oust the jurisdiction of the English Court and to protect the welfare of the children involved. Having ordered foreign law evidence and evidence relating to the Beth Din arbitration, Baker J was satisfied that it was in the parties’ interests (and that of the children) for the process to go ahead. A carefully crafted “safe harbour” order was approved by Baker J which made it possible for the arbitration process to go ahead in New York, but preserved the overriding role of the English Court to determine issues. In his judgment, Baker J makes explicit reference to the Family Proceedings Rules 2010 promotion of ADR (Rule 1.4) and Family Law Arbitration Scheme.

referred to arbitration. The obvious cases are the simple, straight forward ones. “If the legal aid board think there is merit in this it will hugely take off,” says Kelsey. Mediation and negotiation has long been a tool to help embattled divorcing couples. But the value of arbitration is clearly gaining currency around the world. THERESOLVER

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CIArb NEWS Madrid speeches boost awareness of ADR mechanisms Julio César Betancourt MCIArb, the Institute’s Head of Research and Academic Affairs, has spoken at a series of conferences in Madrid in a bid to advance debate and public understanding about significant issues in contemporary ADR. The conferences took place in Madrid from 29-31 January 2013 and his speeches formed part of an agreement between CIArb and the University CEU of San Pablo. The events were organised by the University Carlos III of Madrid, the Institute of European Studies (CEU), and the International Centre for Arbitration, Mediation, and Negotiation (CIAMEN). The conferences gathered a wide spectrum of ADR experts, including members of the judiciary, academics and practitioners, to discuss a wide range of conceptual and practical issues concerning the use of ADR mechanisms in general, and the main ADR categories,

namely arbitration and mediation, in particular. Betancourt said: “We strive to promote and facilitate the use of ADR mechanisms worldwide. These types of initiatives are very important to disseminate and exchange information concerning the promising alternatives to the court system and their institutionalisation as a means of improving access to justice.” Dr Maria Inmaculada Rodríguez Roblero, Coordinator of CIAMEN, said: “We have been working together for more than a year to develop and pioneer several projects, including these conferences, and the fruits of our labours have begun to pay off. “Our projects have attracted a lot of attention not only in the ADR community, but also among students, which is encouraging and, at the same time, stimulating.”

Pictured left to right: Jose Maria Beneyto, Mariana Hernandez Crespo and Julio César Betancourt

IWD call for women to resolve conflicts The Institute held its first workshop to celebrate International Women’s Day (IWD) on 8 March. The event was held in association with Belief in Mediation and Arbitration (BIMA), a multi-faith group of commercial mediators and arbitrators. BIMA is committed to resolving conflicts with and between faith communities as well as promoting the use of arbitration, mediation and facilitated dialogue. The theme for the afternoon was “Women as catalysts for change in conflicts justified by religious belief”. More than 70 people attended. The purpose of the event was to inspire female ADR professionals and peacemakers from a variety of backgrounds to form a collaborative international campaign network to encourage and bring about positive changes in conflicts that are justified by religious belief. The event consisted of a number of workshops and inspirational speakers such as Professor Derek Roebuck MCIArb, patron of BIMA; Laura Marks, Director and Founder of Mitzvah Day, who led a session on interfaith bridgebuilding in the UK; Helen Curtis

Barrister, mediator and restorative justice facilitator, and Rev Rose Hudson-Wilkin, Chaplain of the House of Commons and patron of BIMA. Cherie Booth QC sent a video conference message to delegates who attended the international commercial mediation workshop. She told them: “When women are fully committed, particularly to peace processes across the world, in using their mediation skills, then it makes a huge difference at international level and, of course, here in the UK.” Dr Zaza Johnson Elsheikh, BIMA Co Chair, said: “The event was very successful and culminated in an international collaboration of people committed to peacemaking. Women have been active in peace-building for decades but, very much in the background. “The time has come for them to step forward to the fore and be more visible in peace-building. I would like to encourage accredited mediators and arbitrators to pursue this goal. I founded BIMA in 2011 because I believe that the key to achieving peace is by securing the efforts of as many different people across the spectrums of age, gender, race and religious belief.” May 2013 | THERESOLVER

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CIArb NEWS BRANCH ROUND-UP EAST ASIA

Business in the PRC A half-day joint conference was organised by the East Asia Branch of CIArb and South China International Economic and Trade Arbitration Commission – also known as the Shenzhen Court of International Arbitration (SCIA) – in January. ‘Doing business in the PRC: risks, precautions and dispute resolution options’ was held at the HKIAC in Hong Kong. The event was a huge success, with around 100 delegates attending from Guangdong, Shenzhen and Hong Kong. It brought together in-house counsel, lawyers, accountants and arbitration practitioners to discuss the various issues involved when entities are doing business in the People’s Republic of China (PRC) – for example, in-bound investments and how to tackle risks and take precautionary steps in dealing with disputes.

The conference was divided into two sessions. The first looked at risks and precautions from the perspectives of entities, business advisers and lawyers. The second session covered resolution mechanism options from the viewpoint of lawyers and arbitrators with experience in HK and PRC jurisdictions, as well as other jurisdictions. Highlights of the event included presentations from in-house counsel, lawyers, business advisors and arbitrators, as well as a former judge of the PRC Court. The Branch expresses sincere gratitude to Mr Huen Wong, Chairman of the HKIAC, who delivered the keynote address to start the conference, as well as the various guest speakers and Messrs Mayer Brown JSM who sponsored the cocktail reception. This event signifies the close collaboration and cooperation between CIArb and SCIA.

IRELAND

there are plans for more events in 2013. Organiser Arran DowlingHussey FCIArb said: “We would be pleased to hear from any CIArb colleagues interested in attending or speaking on a trip to Dublin.”

Call for speakers In Dublin, the Irish Branch continues to hold a monthly roundtable forum. While most often featuring domestic practitioners, a number of international guests have attended to speak or chair the event, including John Tackaberry QC FCIArb and David Brynmor Thomas MCIArb. Mason Hayes & Curran hosted the most recent roundtable on misconduct, chaired by wellknown Irish commercial silk David Barniville and featuring Simon Maynard from the London office of Allen and Overy, and Romain Dupeyré MCIArb, a new partner in Bouckaert Ormen Passemard Sportes in Paris. Attendance remains strong and 16

→ Email: dublinarbitrationforum@ gmail.com LONDON, UK

Hot property The London Branch held its annual property arbitration seminar on 29 January entitled ‘Hot topics in property arbitration’, hosted by Linklaters LLP and chaired by Margaret BickfordSmith QC MCIArb. The guest speakers were Katie Bradford FCIArb, property and finance litigation partner at Linklaters LLP, Nicholas Dowding QC, of Falcon Chambers, and

KENYA

The Kenya Branch of CIArb held its annual end-of-year cocktail party at the Nairobi Serena Hotel in December. It was attended by more than 100 members and invited guests. The guest of honour was the Attorney General of Kenya, Hon Prof Githu Muigai FCIArb, who addressed the gathering along with the Branch Chairman Dr Kariuki Muigua FCIArb. Engineer Peter Scott MCIArb gave a vote of thanks to the guests and members present. Everyone enjoyed the occasion, which was well catered for by the five-star central Nairobi hotel.

Torquil Gyngell FRICS. The audience of 140 included CIArb Director General Anthony Abrahams MCIArb. As part of an engaging but authoritative double-act, Nicholas Dowding QC and Torquil Gyngell gave their views on a range of practical but problematic valuation issues including lack of comparable evidence, lack of demand and valuation assumptions in difficult cases. An appreciative specialist audience noted that Nicholas Dowding QC highlighted the likely increased importance of arbitration as a means of dispute resolution in property work of the future. Katie Bradford FCIArb provided a detailed update on arbitration case law, in particular the availability of arbitration

(including issues raised by tiered dispute resolution provisions), challenges to an award, and points on timing of challenges. EAST ANGLIA, UK

Sports lesson Last month’s AGM saw Rob Tate FCIArb take over as Chairman and Chris Gilbert FCIArb as Vice Chairman of East Anglia Branch. The branch is excited by plans for its annual summer seminar at Downing College, Cambridge. The theme is ‘The men in the middle’, and will identify lessons for arbitrators, adjudicators and ombudsmen from sports referees dealing with dissent from players, managers and supporters. • For longer versions of branch news

→ www.ciarb.org/branch-news

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BEST OF THE

Robert J Gemmell

ADR BLOGS 1 ⁄ 

A protracted case involved death, late submissions and two challenging witnesses

Lessons from Nanny McPhee

FCIArb, C.Arb, Regional Manager (Queensland) Dispute Services, Aquenta Consulting, Brisbane, Australia

Andrea Maia

My son loves Nanny McPhee… It goes more or less like this: In 19th century England, a widowed man has seven children who have had a series of 17 nannies, whom they systematically drive out… Desperate to find another nanny, after a series of mysterious events, an unusual and hideous woman named Nanny McPhee arrives at his home and the movie goes on. There is a special dialogue which can summarise the rest of the story very well: Nanny McPhee: “There is something you should understand about the way I work. When you need me but do not want me, then I must stay. When you want me but no longer need me, then I have to go. It’s rather sad, really, but there it is. Simon (one of the children): We will never want you! Nanny McPhee: Then I will never go.” For my son, it is guaranteed entertainment. To me, as a mediator, this apparently childish movie all of sudden started to look like a lesson… Perhaps, in fact, mediators are Nanny McPhee’s [sic] for grown ups. Perhaps our job is to be there when we are needed and leave when our presence is no longer required, but often desired. To see the full blog Nanny McPhee’s for Grown-ups, 25 February 2013, visit → http://kluwermediationblog.com

Andrea Maia is a lawyer, mediator and Founding Partner at FindResolution

2 ⁄ 

Should local Chambers of Commerce be more international? Michael McIlwrath

Throughout many parts of Europe, municipal chambers of commerce have long helped businesses resolve their disputes… In a country of fierce individualists like Italy, the prevailing model seems to be every city equipped with its own rules and panel of arbitrators and mediators… By contrast, the model adopted by the DIS, the German Arbitration Institute, is more disciplined, centralised and, well, let’s just say more German. The DIS provides the arbitration and mediation services for over a dozen municipal chambers of commerce of many large cities in Germany. It makes no difference, for example, if a party files a claim with the Frankfurt Chamber of Commerce or the Stuttgart Chamber... I am proud to say that my adopted home of Florence has embraced a similarly cooperative approach… The Florence Chamber has signed a pact with its northerly sister, the Milan Chamber of Commerce’s Court of Arbitration… It’s not surprising that Florence would be among the first of Italian cities to accept that surrendering local control is a path to becoming more attractive to foreign parties. After all, this is a city whose grandeur was built on the economic force of trade guilds dependent upon the power of cooperation and reciprocity, centuries before reliable judicial systems came into existence. To see the full blog Dispute with a View, 28 February 2013, visit → http://kluwerarbitrationblog.com

Michael McIlwrath is Senior Counsel, Litigation, for GE Oil & Gas division in Italy

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THERESOLVER | November 2010

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IT WAS MY second appointment as works, quality of work and arbitrator. The claimant submitted materials, late completion, his claim and wanted me to decide repudiatory breach of contract, whether a settlement agreement loss of profit and mitigation. had been entered into and, if so, The claimant served a reply and for how much. defence to the respondent’s The respondent informed me defence and counterclaim and that, due to counsel’s availability brought on board his own expert. and because he intended to A three-day hearing followed in introduce a counterclaim, a London. To save time, I had further six weeks was required to directed that each of the witnesses’ make his submission. statements would stand as After six weeks, the respondent evidence in chief, and opening requested more time for submissions were to be in writing, submissions because of a death in sent to me one week before the the family. Overseas travel was hearing. Yet one of the parties only allegedly required to go to the faxed their opening submissions to funeral. “The respondent is lying, me the night before the hearing. At the hearing one witness didn’t no more delays,” cried the speak English and required a claimant, demanding proof that translator. someone had Another died and copies admitted to of passports to I decided not to being an illegal prove travel. require proof of death worker. After I decided not – a bit too sensitive listening to all to require proof an issue, I thought – the witnesses of of death – a bit fact being too sensitive an but I did demand examined, issue, I thought proof of travel under oath, I – but I did was none the demand proof wiser. Who was telling the truth? of travel. I then issued a I completed my award and peremptory order, directing that notified the parties it was ready to unless the respondent submitted be dispatched upon payment of his defence and counterclaim by a my fees. The claimant went into certain date, I would direct that liquidation. I went to the county pleadings would be deemed to be court and submitted a claim form. closed and that I would proceed to The judge found in my favour and an award on the basis of the awarded me my costs on an materials properly provided to me. indemnity basis. The Supreme The respondent promptly served Court awarded me 95 per cent of his defence and counterclaim. my costs including interest. All The counterclaim alleged a host over now? Not quite… of defects in the construction Months later, after putting a works and an expert report had legal charge on several properties, been submitted in respect of the respondent paid my fees alleged defects. The issues in the and costs. dispute included valuation of the May 2013 | THERESOLVER

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WHAT’S ON

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TRAINING CIArb professional training diary May – December 2013 Courses held at 12 Bloomsbury Square, London (unless otherwise indicated) Introduction to Mediation The general principles of mediation. 30 October 2013 Duration: 1 day Fee: £480 Module 3 Mediation Key aspects of the legal system covering the law of contract, tort and evidence and how disputes may be treated and resolved according to law. 7 October 2013 Duration: 7 months Fee: £1,320 Module 4 Mediation Application of academic knowledge of mediation theory. Open Entry Duration: 6 months Fee: £660

Further information on all professional training courses can be found at: → www.ciarb.org/course-finder Education Team • T + 44 (0)20 7421 7439 • F + 44 (0)20 7404 4023 • E education@ciarb.org KEY:  MEDIATION  ARBITRATION  GENERAL ADR

Accelerated Route to Fellowship A fast-track route to Fellowship through the domestic arbitration pathway. 18-19 November 2013 Duration: 2 days Fee: £1,860 Introduction to ADR A complete explanation of the main categories of alternative dispute resolution. 21 May 2013 24 September 2013 25 November 2013 Duration: 1 day Fee: £420 Introduction to Adjudication The general principles of construction adjudication. 30 September 2013 Duration: 1 day Fee: £480

Emotion in Mediation Developing skills and confidence in dealing with emotional parties in a mediation.

Module 2 Adjudication Provides a detailed understanding of the legal and procedural principles involved in construction adjudication.

26 September 2013 Duration: 1 day Location: London Fee: £238.80

14 October 2013 Duration: 5 months Fee: £1,320

Introduction to Arbitration The general principles of arbitration. 15 October 2013 Duration: 1 day Fee: £480 Module 1 – Law of Obligations and Civil Evidence Key aspects of the legal system covering the law of contract, tort and evidence and how disputes may be treated and resolved according to law. 7 October 2013 Duration: 7 months Fee: £1,320 Module 2 – Domestic Arbitration Provides a detailed knowledge and understanding of the law of arbitration.

Module 3 Adjudication Guided practice in the main procedural elements of a construction adjudication. 28 October 2013 Duration: 6 months Fee: £1,860 Module 4 Adjudication Practice in all the requirements for the writing of a reasoned decision. 21 October 2013 Duration: 4 months Fee: £1,320 Accelerated Route to Membership A fast-track route to Membership through the adjudication pathway.

14 October 2013 Duration: 5 months Fee: £1,320

18-19 July 2013 28-29 October 2013 Duration: 2 days Fee: £1,320

Module 3 – Domestic Arbitration Guided practice in the main procedural elements in a domestic arbitration.

Accelerated Route to Fellowship A fast-track route to Fellowship through the adjudication pathway.

7 October 2013 Duration: 6 months Fee: £1,860

18-19 June 2013 Duration: 2 days Fee: £1,860

Module 4 – Domestic Arbitration Practice in all the requirements for the writing of a final, reasoned and enforceable arbitration award.

Introduction to International Arbitration The general principles of international arbitration.

14 October 2013 Duration: 4 months Fee: £1,320

12 June 2013 4 November 2013 Location: London Fee: £480

Accelerated Route to Membership A fast-track route to Membership through the domestic arbitration pathway. 28-29 November 2013 Duration: 2 days Fee: £1,320

18

Module 2 International Arbitration Provides a detailed knowledge and understanding of the law of international arbitration.

 ADJUDICATION  INTERNATIONAL ARBITRATION

Duration: 5 months Fee: £1,320 Module 3 International Arbitration Guided practice in the procedural elements involved in an international arbitration. 7 October 2013 Duration: 6 months Fee: £1,860 Module 4 International Arbitration Practice in all the requirements for the writing of a final, reasoned and enforceable arbitration award. 28 October 2013 Duration: 4 months Fee: £1,320 Accelerated Route to Membership A fast-track route to Membership through the international arbitration pathway. 17-18 July 2013 28-29 November 2013 Duration: 2 days Fee: £1,320 Accelerated Route to Fellowship A fast-track route to Fellowship through the international arbitration pathway. 6-7 August 2013 18-19 November 2013 Duration: 2 days Fee: £1,860 21-23 June 2013 Duration: 3 days Location: Geneva, Switzerland Please contact the European Branch for further information. 12-14 July 2013 Location: San Francisco Duration: 3 days Please contact the North American Branch for further information.

CIArb EVENTS SPOTLIGHT

CIArb AGM This year’s AGM is being held at 12 Bloomsbury Square (Council Chamber) on Thursday 16 May at 6.15pm. It is followed by the Roebuck Lecture and a wine reception. For more details, contact → Email: events@ciarb.org Roebuck Lecture This year’s lecture will be held at 12 Bloomsbury Square on 16 May, following the CIArb AGM (see above). This year’s speaker is commercial mediator and arbitrator Stephen Ruttle QC of Brickcourt Chambers. More details can be found at → www.ciarb.org/conferences CIArb International Arbitration Conference Organised and hosted by the Malaysia Branch, the conference theme is ‘Tapping Asia’s Growth’. It will be held from 22-24 August at the E&O Hotel in Georgetown, Penang. It will include a welcome reception, keynote speech and optional tours around Penang. More details can be found at → www.ciarb.org/conferences

SAVE THE DATE

The Members’ lunch for 2013 will be held on 14 May. → www.ciarb.org/conferences

RECOMMENDED COURSE Diploma in International Commercial Arbitration The Diploma course is internationally recognised and is designed to provide a thorough understanding of the practice and procedure of international commercial arbitration. This is an intensive nine-day residential course with lectures, tutorials and discussion workshops. It is aimed at practising lawyers, professionals and CIArb Members and Fellows who are familiar with legal reasoning and concepts, are involved in arbitration (domestic or international) and who wish to increase their knowledge and understanding of international commercial arbitration. On successful completion of the Diploma course and the Module 4 Award Writing course, candidates will be awarded a CIArb Diploma in International Commercial Arbitration. 14-22 September 2013 (Part 1) Location: Oxford Duration: 9 days Fee: £6,000 14-22 September and 28 October 2013 (Parts 1 and 2) Location: Oxford Duration: 9 days + 4 months Fee: £7,200

14 October 2013

THERESOLVER | May 2013

p18 what's on.indd 18

20/03/2013 17:33


Book a suite of 3 mediation rooms for just £500 + VAT Why not take advantage of ?our competitive prices?

Room Hire CIArb, 12 Bloomsbury Square, London CIArb’s Georgian premises are located on one of London’s oldest garden squares. Conveniently situated in central London and close to all major transport links, 12 Bloomsbury Square offers: UÊ £ÎÊÀœœ“ÃÊÀ>˜}ˆ˜}ʈ˜ÊV>«>VˆÌÞÊ>˜`ÊVœ˜w}ÕÀ>̈œ˜ UÊ /iV…˜ˆV>ÊÃÕ««œÀÌʈ˜VÕ`ˆ˜}\Ê6ˆ`iœÊ>˜`Ê>Õ`ˆœ‡Vœ˜viÀi˜Vˆ˜}Êv>VˆˆÌˆiÃ]ʅˆ}…‡Ã«ii`Ê܈ÀiiÃÃʈ˜ÌiÀ˜iÌÊ>VViÃÃ]Ê >Õ`ˆœ‡ÛˆÃÕ>Ê«ÀiÃi˜Ì>̈œ˜ÊiµÕˆ«“i˜Ì]Ê`ˆ}ˆÌ>Ê>Õ`ˆœÊÀiVœÀ`ˆ˜}]ÊÌÀ>˜ÃVÀˆ«Ìˆœ˜Ê>˜`ÊÌÀ>˜Ã>̈œ˜ÊÃiÀۈViÃÊ>˜`Ê Ûˆ`iœÊV>“iÀ>ÃÊ>˜`Ê«>ÞL>VŽ UÊ ÊV>ÌiÀˆ˜}ÊÃiÀۈViÊ̅>ÌÊV>˜ÊLiÊÌ>ˆœÀi`Ê̜ÊޜÕÀÊÀiµÕˆÀi“i˜Ìà UÊ VVœ““œ`>̈œ˜Ê>ÀÀ>˜}i`Ê>ÌÊëiVˆ>ÊÀ>ÌiÃʈ˜ÊœV>Ê…œÌiÃ UÊ *ÀœviÃȜ˜>ÊÛi˜ÕiÊÌi>“ UÊ"Õ̇œv‡LÕȘiÃDžœÕÀÃÊ>VViÃÃÊ>˜`ÊÜiiŽi˜`Ê>˜`ÊiÛi˜ˆ˜}ÊLœœŽˆ˜} To find out more or to book contact: ˆiÃʘ`ÀiÜÃÊÊE:Ê}>˜`ÀiÜÃJVˆ>ÀL°œÀ}ÊÊT:ʳ{{Ê­ä®ÓäÊÇ{Ó£ÊÇ{{{ W:ÊÜÜÜ°Vˆ>ÀL°œÀ}É£ÓLœœ“ÃLÕÀÞõÕ>ÀiÉ

RES.02.13.019.indd 1

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CIArb 2013

Arbitration:

I N T E R N A T I O N A L A R B I T R A T I O N C O N F E R E N C E

Tapping Asia’s Growth

George Town, Penang, Malaysia

22-24 August 2013

The Speakers

The Conference

Â&#x2039;2L`UV[L(KKYLZZI`;OL/VUV\YHISL 4Y:\UKHYLZO4LUVU*OPLM1\Z[PJLVM:PUNHWVYL Â&#x2039;+H[\R:\UKYH9HQVV+PYLJ[VYVM[OL 2\HSH3\TW\Y9LNPVUHS*LU[YL-VY(YIP[YH[PVU 0U[LYUH[PVUHS(YIP[YH[PVU*LU[YL Â&#x2039;/PYV`\RP;La\RH4LZZYZ5PZOPT\YH  (ZHOP1HWHU Â&#x2039;0]HU3VV7HY[ULY:RYPUL4HSH`ZPH Â&#x2039;1VOU)PZOVW7PUZLU[4HZVUZ337 Â&#x2039;1VOU>YPNO[.VVKTHU+LYYPJR337<2" Â&#x2039;2HW@V\2L]PU2PT!4LZZYZ)HL 2PT 3LL33*:V\[O2VYLH Â&#x2039;3PSPHU*O\;ZHY ;ZHP;HP^HU Â&#x2039;4PJOHLS/^HUN:LUPVY*V\UZLSHUK (YIP[YH[VY:PUNHWVYL Â&#x2039;7OPSPW@HUN7HZ[*OHPYWLYZVU /VUN2VUN0U[LYUH[PVUHS(YIP[YH[PVU*LU[YL Â&#x2039;7PLYYL4PJOLS.,5;65-V\UKLY 4HUHNPUN 7HY[ULYVM74.,UNPULLYZHUK,JVUVTPZ[Z Â&#x2039;7YVM+V\N1VULZ(67HY[ULY*SH`[VU<[a" 7YLZPKLU[VM[OL(\Z[YHSPHU*LU[YLMVY0U[LYUH[PVUHS (YIP[YH[PVU"+PYLJ[VYVM[OL(\Z[YHSPHU0U[LYUH[PVUHS +PZW\[L*LU[YL Â&#x2039;9HZOKH9HUH>LU[^VY[O*OHTILYZ(\Z[YHSPH Â&#x2039;9VILY[7L7HY[ULY6YYPJR/VUN2VUN Â&#x2039;;HU:YP*LJPS(IYHOHT7HY[ULY4LZZYZ A\S9HMPX\L 7HY[ULYZ4HSH`ZPH Â&#x2039;;OL/VUVYHISL1\Z[PJL*S`KL*YVM[1\KNLVM[OL =PJ[VYPHU:\WYLTL*V\Y[

0UJVUQ\UJ[PVU^P[O4Y=PUH`HR7YHKOHUILJVTPUN [OL MPYZ[ 4HSH`ZPHU 7YLZPKLU[ VM *0(YI HZ VM Z[ 1HU\HY`  [OL 4HSH`ZPHU IYHUJO VM *OHY[LYLK 0UZ[P[\[LVM(YIP[YH[VYZPZVYNHUPZPUN[OL*0(YI 0U[LYUH[PVUHS (YIP[YH[PVU *VUMLYLUJL ;OL KH` JVUMLYLUJLPZH\UPX\LL]LU[L_WSVYPUNHWSL[OVYHVM PZZ\LZHUKVWWVY[\UP[PLZYHUNPUNMYVT[OLZ[YH[LNPJ [V [OL [HJ[PJHS HJYVZZ M\UJ[PVUZ YLNPVUZ Q\YPZKPJ [PVUZHZ^LSSHZKLSPILYH[PVUVULTLYNPUN[YLUKZ

The Programme Topics to be Discussed: Â&#x2039;;HWWPUN(ZPH»Z.YV^[O Â&#x2039;,TLYNPUN(ZPHU(YIP[YHS/\IZ Â&#x2039;(YIP[YH[PVUPU(ZPHU:\WLY7V^LYZ! *OPUHHUK0UKPH Â&#x2039;3LHKPUN(YIP[YHS0UZ[P[\[PVUZ0U(ZPH Â&#x2039;0UZPKL1\KNLZ»4PUKZ!(U0UZPNO[0U[V;OL1\KPJPHS (WWYVHJO;V^HYKZ,UMVYJLTLU[(UK*OHSSLUNLZ (NHPUZ[0U[LYUH[PVUHS(YIP[YHS(^HYKZ Â&#x2039;;HWWPUNPU[V.YV^[OPU:WLJPHSPZLK:LJ[VYZ 4HYP[PTL(YIP[YH[PVU Â&#x2039;;HWWPUNPU[V.YV^[OPU:WLJPHSPZLK:LJ[VYZ 0ZSHTPJ-PUHUJL(YIP[YH[PVU Â&#x2039;;HWWPUNPU[V.YV^[OPU:WLJPHSPZLK:LJ[VYZ 6PS .HZ(YIP[YH[PVU0U(ZPH Â&#x2039;+PZW\[L(KQ\KPJH[PVU)VHYK Â&#x2039;0U[LYHJ[P]L:LZZPVU!*\YYLU[/V[;VWPJZ0U 0U[LYUH[PVUHS(YIP[YH[PVU7YHJ[PJL

The Moderators

Who Should Attend

Â&#x2039;(U[OVU`(IYHOHTZ*0(YI+PYLJ[VY.LULYHS Â&#x2039;3PT*OLL>LL7HY[ULY4LZZYZ:RYPUL4HSH`ZPH" 7YLZPKLU[VM[OL4HSH`ZPHU)HYBD Â&#x2039;9HQ5H]HYH[UHT7HY[ULY4LZZYZ(aTHU +H]PKZVU *V4HSH`ZPH Â&#x2039;:OHU[P4VNHU7HY[ULY4LZZYZ:OLHYU+LSHTVYL  *V4HSH`ZPH Â&#x2039;;HU:YP=*.LVYNL-VYTLY1\KNLVM[OL*V\Y[VM (WWLHS Â&#x2039;=PUH`HR7YHKOHU7HY[ULY4LZZYZ:RYPUL 4HSH`ZPH"7YLZPKLU[VM*0(YI

Â&#x2039;(YIP[YHS0UZ[P[\[PVUZ Â&#x2039;*OPLM,_LJ\[P]LZHUK:LUPVY4HUHNLYZ3LNHS *VTTLYJPHSHUK-PUHUJL+PYLJ[VYZ Â&#x2039;-PUHUJPHSHUK0U]LZ[TLU[(K]PZLYZ Â&#x2039;3H^`LYZHJ[PUNMVYPU[LYUH[PVUHS[YHKPUN JVYWVYH[PVUZ Â&#x2039;7VSPJ`4HRLYZHUK(K]PZLYZ Â&#x2039;7YHJ[P[PVULYZHUK[OV\NO[SLHKLYZMYVT]HYPV\Z SLNHSLU[P[PLZHUKHYIP[YH[PVUJLU[YLZMYVTHYV\UK [OL^VYSK Â&#x2039;7YHJ[P[PVULYZPUSVJHSHUKPU[LYUH[PVUHSHYIP[YH[PVU

For more information, please contact the Conference Secretariat at T: +6 03 214 241 05 E: CIArb2013@fabuloustarget.com

O R G A N I S E D

RES.02.13.020.indd 1

W: www.ciarb2013.com

B Y:

18/03/2013 11:13

The Resolver May 2013  

The Resolver May 2013

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