Looking at all forms of dispute resolution worldwide

INTERNATIONAL COMMITTEE WORKSHOP APRIL 6^th 2013

Fairmont Chicago Millennium Park

200 North Columbus

Chicago, IL 60601

          A Window into the Future:

Adding Mediation to the Process Choices in Global Investment Disputes

Conference Registration includes the International Workshop. If you will only be attending the International Workshop the registration fee is $110. Click Here To Register for this Event.

Dear Friends and Colleagues,

As in previous years, the International Committee (“IC”) has organized an additional workshop to the Dispute Resolution Section’s annual Spring Meeting.  This year’s workshop will begin with a morning session that will include an overview of international ADR and investor-state disputes by Prof. Frank Fleerackers of the High Council of Justice, KU Brussels University – HUB,  Brussels Bar Association (Belgium), followed by presentations of the International Committee’s projects its interests.  The bulk of the day will be dedicated to the theme of investment treaty arbitration: why and how mediation could be integrated into such processes.  We are grateful to Mariana Hernandez-Crespo and Susan D. Franck the co-chairs of this workshop, who have brought together an outstanding panel of international experts in the field, including academics, users, practitioners, arbitrators and mediators from around the world.   The overall goals of their workshop will be to:

1)      provide participants with an understanding of the current system of investor treaty arbitration, its pressure points and controversies, and the value of adding mediation;

2)      review the International Bar Association’s Mediation Rules;

3)      promote audience consideration of what steps—procedural, lawyering, etc.— are necessary to add mediation as process; and

4)      consider what barriers and concerns must be addressed in order to properly engage all stakeholders—including small states and small investors -- in cross-border investment disputes. 

The details of the program are as follows:

09:15 am – 10:30 am     International Committee Opening Session

1.      Welcoming remarks [Lorraine Brennan / Jeremy Lack]

2.      Opening Comments: “International ADR and legal thinking: challenges and opportunities in cross-border disputes,” [Prof. Frank Fleerackers, High Council of Justice, KU Brussels University – HUB,  Brussels Bar Association (Belgium)]

3.      Presentation of Current Committee Projects

a.      Future of International ADR [Peter Kamminga / Paola Cecchi Dimeglio]

b.      ADR Systems Design Project for International Disputes in Trusts and Estates Matters [Lorraine Lopich]

c.       Organizing Quarterly International Committee Webinars [Hagit Shaked]

d.      Creating a virtual secure web based meeting place for international ADR practitioners, resources, clients and specialty interdisciplinary tools [Larry Bridgesmith]

e.       International Questionnaire on Mediation, Arbitration and other forms of ADR [Koschina Marshall]

4.      Discussion of the International Committee’s Program for 2013-14

5.      Asia Pacific Mediation Leadership Summit (Hong Kong, October 2013)

10:30 am - 11:00 am     Coffee Break (30 minutes)

11:00 am – 12:30 pm    Session I:  Introduction to the Topic & Case Studies

A panel of experts will first introduce the doctrine of investment treaty dispute resolution and provide data on its current use, particularly within the context of arbitration.  The panel will explore case studies to consider the historical use of investment treaty arbitration and the procedural, legal and public policy issues that have arisen as use of the process has increased.

1.      Introduction to Panel – Mariana Hernandez-Crespo

2.      Understanding Investment Treaty Disputes:  An Overview – Susan Franck

3.      Case Study: The Need to Avoid the Adjudicative Mindset and Getting the Proper Parties in the Room – Jeremy Lack

4.      Case Study: Argentina, Dispute Resolution Options and Procedural Justice – Andrea Schneider and Nancy Welsh

5.      Summing Up: Why the Current State of Investment Treaty Arbitration Matters –Mariana Hernandez-Crespo

12:30 pm – 2:00 pm      Legal Educators Colloquium Lunch (tickets sold separately)

2:15 pm – 3:30 pm        Session II:  IBA International Mediation Guidelines and Role Play

The panel will introduce the International Bar Association's recently-adopted mediation rules for investor-state disputes and, with a role play, demonstrate a case management process in which the parties determine how the mediation should be structured, who should participate and how, the role of the mediator, other procedural issues including confidentiality, caucuses and agenda setting, as well as the relationship between mediation and arbitration.

1.      Providing a New Tool to Create New Remedies: The International Bar Association project on Mediation in Investment Treaty Disputes – Anna Joubin-Bret

2.      Introduction to the Simulation – Susan Franck

3.      The Simulation: A Day in the Life of a Mediation Case Management Conference

a.      Co-Mediators: Mariana Hernandez-Crespo and Jack Coe

b.      Investor and Investor’s Counsel: Silvia Constain and Jeremy Lack

c.       Respondent and Respondent’s Counsel: Vilawan Mangklatanakul and Anna Joubin-Bret

3:30 pm- 4:00 pm          Coffee Break

4:00 pm – 5:15 pm        Session III:  Analysis and Discussion of Future Techniques in Global Investment ADR

The panel will use the role play and break-out sessions to engage the workshop participants in evaluating the IBA Mediation Rules and examine some of the advantages and disadvantages of using mediation in this context, the likelihood that parties will volunteer to use mediation, the models of mediation that will be appropriate and under what circumstances, the issues that can be addressed, the number of parties that can be involved, the role of the mediator, the role of the lawyers and parties, and the legal and public policy implications of integrating mediation.  Conference participants and the faculty will engage in a dialogue designed to explore the support that parties will need to make appropriate and advantageous use of mediation in the investment treaty a context.

1.      Breakout Session #1: Evaluating the IBA Rules – Anna Joubin-Bret as Moderator

2.      Breakout Session #2: Consideration of the Future: Exploration of future market for investment dispute conflict management, dispute systems design, procedural justice, mediation and other alternatives – Nancy Welsh as Moderator

3.      Group Discussion – Andrea Schneider as Moderator

4.      Conclusion – Mariana Hernandez-Crespo

5:15 pm – 5:30 pm        Closing Remarks

Please make sure you sign up to attend this event ASAP if you wish to be sure to have a place on this program as there may be limited seating available for this workshop.  Attendance is free of charge to ABA members attending the Spring Conference.  Participants will be able to attend the Legal Educators Colloquium Lunch, for which tickets must be bought separately. 

We look forward to seeing you in Chicago next April, and in particular at the IC’s April 6^th workshop, where will be discussing state of the art issues in international dispute resolution and how to integrate mediation into arbitration in complex investor-state disputes with a unique panel of experts.

Best regards,

Lorraine Brennan                                           Jeremy Lack

IC Co-Chair                                                    IC Co-Chair

New York, USA                                             Geneva, Switzerland

lbrennan@jamsinternational.com                 jlack@lawtech.ch

PROGRAM FACULTY

I. International Committee Executive Committee & Project Members (09:15-10:30 AM)

Committee Co-Chairs: Lorraine Brennan (US) & Jeremy Lack (CH/US/UK/IL)

Opening Speaker: Prof. Frank Fleerackers, High Council of Justice, KU Brussels University – HUB, Brussels Bar Association (Belgium)

Frank Fleerackers:  Frank Fleerackers is a Commissioner of the High Council of Justice in Europe and sits on the Judicial Appointments Commission for Belgium.  He is Professor of Law and Jurisprudence at KU Brussels University, teaches Principles of Law at KU Leuven University and Tilburg University, and Arbitration - Negotiation at Brussels VUB University

II.                  International Investment Workshop Panelists (11:00 AM-5:30 PM)

Workshop Co-Chairs: Mariana Hernandez-Crespo (US) & Susan D. Franck (CH/US)

Jack Coe: A specialist in private international law and international arbitration, Professor Coe's graduate training includes degrees from Exeter and the LSE and the Diploma of the Hague Academy of International Law. He is an Associate Reporter for the Restatement (Third) on International Commercial Arbitration and Faculty Director of Pepperdine’s LL.M Concentration in International Commercial Arbitration. Among other international posts, he has clerked at the Iran-U.S. Claims Tribunal, The Hague. At present, he teaches for Pepperdine’s Straus Institute and consults and serves as arbitrator in relation to disputes involving States. Professor Coe, a regular speaker in Europe, Latin America, and Asia, has authored numerous articles on arbitration, mediation, private international law, and related topics, and has authored or contributed to several books on international dispute resolution. 

Silvia Costain: Silvia Constain is a Fellow at Harvard University´s Weatherhead Center for International Affairs. A consultant on development, international investment and trade, she was Deputy Chief of Mission of the Embassy of Colombia to the White House and in charge of Congressional Affairs between 2007 and 2010, and senior economic affairs officer at UNCTAD with the office of the Director of Investment and Enterprise Division from May to August 2011. She has extensive experience in international trade and investment policy and negotiations, as well as a distinguished career in the Colombian public and private sectors. Ms. Constain served as Deputy Director of the Colombian Trade Bureau, Washington, DC between 2004 and 2007, where she liaised between the Colombian Ministry of Trade and the United States Trade Representative, private sector and civil society during the negotiations and Congressional approval of the Free Trade Agreement between Colombia and the United States and interacted with interested parties in the U.S. and Colombia.  Ms. Constain served as Director of Foreign Investment and Services in the Ministry of Trade, Industry and Tourism in Bogotá  from 2002 to 2004 and was a Consultant at the International Arrangement Section of the United Nations Conference of Trade and Development - UNCTAD, in Geneva during 2001. She was advisor to the Minister of Foreign Trade between July 1999 and August 2000, and was an International Trade Negotiator at the Mission of Colombia to the WTO, in Geneva between 1995 and 1999. Ms. Constain is an Economist of the University of Los Andes, in Bogotá, and has an MBA from the same institution.

Susan Franck: Susan Franck’s teaching and scholarship relates to international economic law and dispute resolution. Professor Franck is the author of articles in journals such as the American Journal of International Law, Fordham Law Review, Harvard Journal of International Law, Minnesota Law Review, North Carolina Law Review, Virginia Journal of International Law and Washington University Law Review.  She organized the Joint Symposium on International Investment and Alternative Dispute Resolution, http://investmentadr.wlu.edu, and created a UNCTAD publication summarizing the proceedings, which occurred through a collaboration blog, other online mediums and a traditional in-person conference. Professor Franck was a Scholar-in-Residence at UNCTAD in Switzerland and has served on the faculties at Vanderbilt University, University of Minnesota and University of Nebraska. She has been elected to the International Who's Who of Commercial Arbitration and received the "New Voices" award from the American Society of International Law for her empirical analysis of investment treaty arbitration.  Prior to joining the academy, Professor Franck practiced law at Wilmer, Cutler & Pickering in Washington, D.C. and at Allen & Overy in London, England where she was involved with international trade disputes, commercial litigation regarding defaulted sovereign debt, and arbitrations involving breaches of investment treaties and underlying commercial agreements. Professor Franck received her B.A., summa cum laude, in Psychology and Political Science from Macalester College and her J.D., magna cum laude, from the University of Minnesota. Professor Franck received a U.S.-U.K. Fulbright Grant to study international dispute resolution at the University of London where she received an LL.M. with merit.

Mariana Hernandez-Crespo: Mariana Hernandez-Crespo G., an Associate Professor at St. Thomas School of Law in Minneapolis, Minnesota, holds J.D. and LL.M. degrees from Harvard Law School.  She teaches ADR, mediation, community-based advocacy, and environmental problem solving, and is the founder and Executive Director of the University of St. Thomas International ADR Research Network.  Currently, she is the Co-Chair of the ABA Law School Committee of the ADR Section. Professor Hernandez-Crespo G. has led national consensus building efforts in Brazil, focused on maximizing the nation's dispute resolution systems, trained Venezuelans on advanced mediation and Dispute Systems Design, and working with the Trust for the Americas at the Organization of American States (OAS), led programs on Dispute Systems Design capacity building with the labor and non-profit sectors in El Salvador and the Dominican Republic. She has publications in English, Spanish and Portuguese.

Anna Joubin-Bret: Anna Joubin-Bret is a partner in Foley Hoag’s International Litigation and Arbitration Practice, where she primarily focuses on representing and advising sovereign States in investor-State dispute settlement. Anna has considerable experience with high-level public international law and international arbitration. She provides counsel to governments on international investment policies and law, and also focuses on international commercial arbitration and dispute resolution/mediation. Most recently, Anna was a Senior Legal Adviser at the Division on Investment and Enterprise for the United Nations Conference on Trade and Development (UNCTAD), Geneva. In this capacity, she managed the advisory work on international investment law issues as well as the technical assistance program on international investment agreements (IIAs). During her tenure at the UNCTAD, Anna assisted countries and governments in the formulation of policies and frameworks and the management of investor-State disputes. In addition, she has advised the governments of Belarus, Bolivia, Botswana, Colombia, the Dominican Republic, Guatemala, Egypt, Ghana, the Lao PDR, Morocco, Thailand, Peru, Namibia, South Africa, Syria, Thailand and Turkey on investment treaties, investment laws and investment arbitration and prevention.  Anna has authored seminal research and publications on international investment law and contributed to UNCTAD's research on key issues of investment promotion, protection and liberalization. She has taught international investment law all over the world including South Africa, Egypt, Argentina, Peru, China, Japan, Pakistan, Malaysia and Switzerland.

Jeremy Lack: Jeremy Lack is an independent lawyer and ADR Neutral.  He is a JAMS International Panelist and specializes in international commercial dispute prevention and resolution processes.  He is certified by the International Mediation Institute (IMI) and is a panelist with CPR, ICC, ICDR, CMAP, INTA, SCCM and WIPO.  He qualified as an English barrister in 1989 and as a US Attorney-at-Law in 1990.  He is also registered as an EU lawyer with the Geneva Bar, and is a member of the Executive Committee of the Geneva Bar Association’s Section of Foreign Lawyers.  He is a Door Tenant with QUADRANT CHAMBERS in London, a consultant to CHARLES RUSSELL LLP in Geneva and London, and counsel to PEARL COHEN ZEDEK LATZER LLP in New York and Tel Aviv.  He has a degree (MA Oxon) in Physiological Sciences and is also a co-founder of www.neuroawareness.com.  Jeremy is also an adjunct faculty member with the University of Geneva and teaches at the Federal Polytechnic School of Lausanne (EPFL) in Switzerland.  He handles negotiations, mediations, conciliations, arbitrations, litigations and mixed ADR hybrid processes in a wide range of fields and technologies.

Vilawan Mangklatanakul: Vilawan Mangklatanakul is the Director of the International Law Development Division at the Ministry of Foreign Affairs’ Department of Treaties and Legal Affairs of Thailand.  Mrs. Mangklatanakul has represented the Government of Thailand as the lead legal negotiator in connection with the negotiation of numerous free trade agreements and international investment agreements.  She advises on legal issues in investor-state dispute settlement under investment treaties on a regular basis.  She acted as an associate judge at the Central Intellectual Property and International Trade Court for 5 years.  Mrs. Mangklatanakul also lectures extensively on international law, international trade, investment treaties, dispute settlement mechanisms and arbitration. 

Andrea Schneider: Andrea Schneider is a Professor of Law at Marquette University Law School where she teaches Dispute Resolution, Negotiation, Ethics, and International Conflict Resolution.  She also runs Marquette’s nationally-ranked dispute resolution program.  Professor Schneider’s edited or co-authored books include Dispute Resolution: Examples & Explanations (2^nd ed.) with Michael Moffitt; Dispute Resolution: Beyond the Adversarial Model (2^nd ed.), Negotiation: Processes for Problem-Solving; and Mediation: Practice, Policy & Ethics all with Carrie Menkel-Meadow, Lela Love & Jean Sternlight; The Negotiator’s Fieldbook with Christopher Honeyman; as well as Coping with International Conflict and Beyond Machiavelli: Tools for Coping with Conflict both with Roger Fisher.  In addition, Professor Schneider frequently publishes law review articles and book chapters on negotiation, international conflict and dispute systems design.  She has given negotiation and mediation trainings for a variety of businesses, courts, and law firms around the world.  Marquette’s Foreclosure Mediation Program was named Lawyer of the Year by the Milwaukee Bar Association in 2010 and Professor Schneider was named 2009 Woman of the Year by the Wisconsin Law Journal.  Professor Schneider received her A.B. cum laude from the Woodrow Wilson School of International Affairs and Public Policy at Princeton University and her J.D. cum laude from Harvard Law School. She also received a Diploma from the Academy of European Law in Florence, Italy.

Nancy Welsh: Nancy Welsh is the William Trickett Faculty Scholar and Professor of Law at Penn State University, Dickinson School of Law.  Her research, writing and teaching focus on dispute resolution and procedural law.  She has studied the procedural and substantive justice offered by negotiation, mediation, arbitration and other dispute resolution processes. She has also examined their potential to resolve non-legal as well as legal issues, as well as the effects that courts, lawyers, traditional litigation and institutionalized “alternative” processes have on each other.  Her articles have appeared in the Harvard Negotiation Law Review, Washington University Law Quarterly, and Arizona Law Review, among other legal journals.  She has contributed chapters to many books and is a co-author of Dispute Resolution and Lawyers, 4th ed.  Before joining the legal academy, Professor Welsh was the executive director of a nonprofit dispute resolution organization and advised state courts. Prior to that, she was in private practice, litigating federal and state civil and commercial matters.  Currently, she is a member of the Council of the ABA Section of Dispute Resolution and co-chairs the Editorial Board of the Section’s Dispute Resolution Magazine.   She also serves on the Editorial Board of the Conflict Resolution Quarterly and is the former Chair of the AALS ADR Section.  She is a recipient of the law school’s Excellence in Teaching Award.  Professor Welsh earned her J.D. from Harvard Law School in 1982 and was named a Fulbright Scholar in 2006.  She conducted research regarding the Netherlands’ nationwide implementation of court-connected mediation and taught in the Private Law Department of Tilburg University.

Please note that the program and speakers may be subject to last-minute changes.