The AOI Journal Issue 4 by AOIJOURNAL

THE OI JOURNAL I S S U E

ADR - WHAT DOES THAT MEAN?

2 0 2 3

ARBITRATION AS THE PREFERRED MECHANISM FOR CRYPTOCURRENCY DISPUTES

RADICALIZING COMPASSION

THE AOI JOURNAL

2023

ISSUE 4

CONTENTS Message from the CEO & Founder of ADR ODR International

ADR - What does that mean?

Flipping the Script: Making Negotiation the new ’cool’ in Conflict Resolution

Radicalizing Compassion

The Disclosure Dilemma: Examining the Impact of Third-Party Funding in Arbitration

Arbitration in Pakistan: Overview

Impartiality AND Neutrality: Mediation in Clinical Disputes

Arbitration as the Preferred Mechanism for Cryptocurrency Disputes

The Antecedent and Headway of International Arbitration: Bangladesh standpoint

Presidents of the AOI Journal: Rahim Shamji & Dr. Zoe Giannopoulou Executive Director, Editor & Designer: Kim Kortlepel

THE AOI JOURNAL

2023

ISSUE 4

MESSAGE FROM THE CEO & FOUNDER

Dear Reader, Welcome to the fourth edition of the AOI Journal – your window into the dynamic world of Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR). Within these pages, you'll embark on a global journey of insight, featuring contributions from ADR specialists from the U.K., India, U.S.A., Pakistan, and Bangladesh. Our goal is to unite diverse viewpoints and experiences, fostering a rich variety of knowledge and

collaboration.

ADR

specialists,

shoulder

the

responsibility of raising awareness and championing ADR and

Rahim Shamji

ODR. For if not us, then who?

At ADR ODR International, we proudly extend our reach across 38 countries. Our mission is clear: To promote ADR and ODR, train the peacemakers of tomorrow and offer the best dispute resolution service possible. Furthermore, we are constantly expanding our horizons and nurturing the next generation of dispute resolution specialists through our DDRS Diploma. We would like to extend our gratitude to those who enriched our fourth issue and invite new voices to contribute to the vibrant tapestry of the AOI Journal. Thank you for being part of our journey. Sincerely, Rahim Shamji CEO and Founder ADR ODR International and DDRS

THE AOI JOURNAL

2023

ISSUE 4

ADR - WHAT DOES THAT MEAN? BY: TONY GUISE, UNITED KINGDOM Given the central place ADR is coming to hold in

cost to Mr Churchill.

civil justice in England and Wales it is surprising that no definitive answer has yet been given to

The appeal raises, for ADR practitioners at least,

that question. We would be right to echo the

the intoxicating prospect of reversing a decision

character of Hegio, a lawyer in Terence's Phormio

of 2004 called Halsey which, in brief obiter

(a comedy staged at Rome in 161 BC), and say Quot

remarks, held mediation could not be compelled.

homines, tot sententiae. As many humans, so many

That placed a firm brake on the development of

opinions!

mediation for almost two decades leading to contradictory decisions with at least two of the

Nevertheless upon that question and about those

Judges in Halsey subsequently expressing the view

opinions the Court of Appeal of England and

they were probably wrong.

Wales will be troubled for no fewer than 2 days on 8 and 9 November 2023.

Since then, as they say, time has moved on and a Civil Justice Council Report has found that, with

The General Council of the Bar are intervening. So

caveats, parties could be compelled to engage in

too those doyens of ADR: the Chartered Institute

ADR which the authors defined: “…as any dispute

of Arbitrators, the Civil Mediation Council and the

resolution technique in which the parties are

Centre for Effective Dispute Resolution have

assisted in exploring a settlement by a third party,

joined forces to intervene in a case about an

whether an agent external to the court process

invasive

(e.g. a mediator) or a judge playing a non-

species

vegetation,

Reynoutria

japonica, commonly called Japanese Knotweed.

adjudicative role.”

The appeal grows out of a case brought by Mr

The Council take the view that before any

Churchill against his local council, Merthyr Tydfil

proceedings could be issued Mr Churchill should

County Borough (the Council), a small town in

have completed the Council’s ICP, which of course

south

does not involve an independent third party.

Wales.

The

claim

for

order,

compensation and costs to remove the infestation, which originated on the Council’s land and spread

The potential for this case to give a real boost to

to Mr Churchill’s adjoining property.

ADR as a part of civil litigation in England and Wales is immense, if the Court chooses to take

The Interveners, and many others, are becoming

that opportunity. As Rahim Shamji has noted, the

excited about the issues they consider are also

likelihood of the decision being appealed to the

engaged by this appeal. Namely whether a court

UK Supreme Court and to the European Court of

can compel a party to engage in ADR and, if so,

Human Rights is also immense.

whether ADR can include an Internal Complaints Process (ICP) such as that made available at no

Watch this space!

THE AOI JOURNAL

2023

ISSUE 4

FLIPPING THE SCRIPT: MAKING NEGOTIATION THE NEW ‘COOL’ IN CONFLICT RESOLUTION! BY: VIDHI KHIMAVAT AND SHREYA PATNI, INDIA The negotiation process typically commences with

In a world often consumed by adversarial

conflicts, the art of negotiation remains a hidden

pre-negotiation

stage

involving

either

voluntary expression of intent by the parties to

gem, underestimated, and overlooked. This article

negotiate or a mandatory requirement dictated by

delves into the significance of negotiation as a

relevant laws. Notably, this obligation can be

dynamic and transformative process in resolving

exemplified in various domains of international

disputes, with immense potential to foster

law. International environmental law incorporates

understanding and build relationships.

such an obligation where states share natural resources like watercourses (3), migratory species

Negotiation is a process where parties engage in

(4), or fisheries (5). Similarly, nuclear disarmament

discussions to find a mutually acceptable solution

(6) and international trade regulations (7) also

to a conflict or dispute.(1) In any kind of dispute,

embody an analogous obligation.

be it among states, individuals, corporations, or any legal entity for that matter, ‘getting to the

According to the ‘principled negotiation’ theory,

table’ can be the most advantageous recourse. It is

some

cost-effective, expedient, and effectively limits

critics

contend

that

persisting

with

negotiations after acknowledging the absence of a

third-party intervention, enabling the involved

‘zone of possible agreement’ (ZOPA) is futile,

parties to arrive at a solution that is precisely

leading to a squandering of valuable time and

tailored to their respective interests.(2)

resources.(8) However, a compelling counter-

THE AOI JOURNAL

2023

ISSUE 4

argument can be made, suggesting that unless the

the child welfare system, government assistance

involved parties come to the negotiation table in

programs,

the first place, they cannot ascertain whether

approach to encompass domestic commercial

their respective ZOPAs overlap or not.

disputes and civil law matters is strongly

etc.

Nonetheless,

extending

this

recommended for its potential benefits. Despite being a subject of criticism, the obligation to negotiate demonstrates commendable positive

Adopting this obligation could yield a beneficial

applications in practical scenarios. The World

positive externality as parties compelled to engage

Trade Organization (WTO) since its inception has

encountered a total of 615 consultation requests

understanding of its potential for resolving

from its member states. Impressively, only 283

disputes. Additionally, it presents an opportunity

cases required the generation of panel reports,

to discover potential common ground that might

indicating that the majority of the WTO's dispute

have otherwise remained elusive.

requests

were

successfully

settled

negotiation

might

develop

deeper

through

negotiations. (9)

Skeptics

may

doubt

compliance,

but

the

investment of resources in negotiations could While the obligations of negotiations and their

incentivize the parties to might as well explore

results are observed mostly in the international

this avenue, thus avoiding the costs and time

realm, incorporating negotiations before resorting

entailed in court proceedings. It’s high time that

to courts should be made mandatory even in the

negotiation is made the new cool in conflict

domestic sphere. Advocates of this concept have

resolution!

already endorsed its application in areas such as

(July 25); United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

(1) Fisher, R. and Ury, W. (2012) Getting to yes: Negotiating an agreement without giving in. 3rd edn. London: Random House.

(6) Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 729 U.N.T.S. 161.

(2) Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), 2011 I.C.J. ¶ 131;

(7) Bradly J. Condon, Does International Economic Law Impose a Duty to Negotiate?, 17 CHINESE J. INT'L L. 73 (2018).

Crawford, J. (2019) Brownlie’s principles of Public International Law. 9th edn. Oxford: Oxford University Press, 670. (3)

(8) Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), 2011 I.C.J. ¶ 37 (joint dissenting opinion Owada, Simma, Abraham, Donoghue, J. and Gaja, ad hoc J.).

Convention on the Non-Navigational Uses of International

Watercourses, May 21, 1997, 2999 U.N.T.S. 1; Lake Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281 (1957); The Mox Plant Case (Ir. v. U.K.),

(9) World Trade Organization, Dispute settlement activity — some figures, https://www.wto.org/english/tratop_e/dispu_e/dispustats_e.htm (accessed 28th July 2023).

Provisional Measures, Case No. 10, Order of Dec. 3, 2001, ITLOS Rep. 95, ¶ 82-84. (4) Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982

(10) Herbert, M., & Mould, J., The advocacy role in public child welfare. Child Welfare, 71, 114-130 (1992); Litzelfelner, P., & Petr, C., Case advocacy in child welfare. Social Work, 42, 392-402 (1997).

relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks art 8.2, Aug. 4, 1995, 2167 U.N.T.S. 3. (5) Fisheries Jurisdiction (Ger. v. Ice.), Judgment, 1974 I.C.J. 175

THE AOI JOURNAL

2023

ISSUE 4

RADICALIZING COMPASSION BY: MIKHAILA FENDOR, U.S.A. I recently watched an interview of Deeyah Khan,

encouraged

Founder and CEO of Fuuse production company.

conversations with active listening. Many times,

She spoke very passionately about the idea of

though, emotions are so high (rightfully so) that it

radical compassion as a useful response to

can be hard to get to any common ground in these

terrorism and to those who resort to extremism in

conversations. So once again, “where do we go

any direction. Her words ring especially true as

from here?” What do you do when you feel

the world is experiencing this time of unrest.

blinded by anger, disappointment or negative

Many people are grappling with feelings of being

emotion? What can you do to mentally slow the

oppressed or pitted against others. While some

moment down enough to get your point across

others are examining their own biases, trying to

clearly and then receive the perspective of anyone

determine

else involved? Perhaps, we can start simply by

whether

they’ve

been

guilty

contributing to these issues. Themes of us vs.

have

and

facilitate

candid

leading with radical compassion during conflict.

them, hatred, and fear run rampant in daily news and social media. Instances of harassment and

As cliche as that suggestion may sound, both I and

violence are springing up across the country and

Deeyah could tell you that it really works. The

beyond.

definition of compassion is a feeling of deep

running thin and people on all sides of today’s

sympathy and sorrow for another who is stricken

issues are desperate and asking themselves,

by misfortune, accompanied by a strong desire to

“where do we go from here?”

alleviate the suffering. In the conversations we’re

Understanding

between

groups

discussing now, the “suffering” referred to is the In many DEI (diversity, equity, and inclusion) and

oppression, anger, hopelessness, and negative

conflict resolution circles, people are being

feelings that people are experiencing in some

THE AOI JOURNAL

2023

ISSUE 4

way. If we want to get to the place of systemic

together to respond to the world that we live in,

change that many are fighting for, it’s going to

we can recognize and lift up each other’s

take

radically

differences, listen to each other’s point of view,

compassionate for the experience that another is

and positively influence each other through

having—because essentially we are experiencing

effective

the exact same suffering (even if due to drastically

Deeyah's suggestion.

being

aggressively

and

communication.

Let’s

remember

different reasons). The person on the other side of my argument, with the exception of circumstance

“We do not want to be encouraged into dehumanizing

and upbringing, could very well be me.

each other. We’re not just anything…there’s more to you [and me] than that. The more we can get to the

Yes, this could be an overambitious exercise, but

real heartbeat of it, the closer we can get to

practicing this humanizes the person you’re

solutions… We can’t afford to give up on each other.

arguing with and gives you at least a moment to

If we give up on each other, then we’re giving up on

cool down and communicate more clearly. Like I

ourselves.” - Deeyah Khan

said, that is just an initial step. As we venture

panel membership

FOUNDATION It is for individuals who have limited or no practical experience in the field of ADR and ODR.

CERTIFIED It is for individuals who have significant experience in the field of ADR and ODR.

FELLOW It is offered senior ADR Professionals who have demonstrated a high level competency and dedication to ADR. This category is by application only.

See the interview here: https://www.youtube.com/watch?v=vkux4MsjK_k&t=135s

THE AOI JOURNAL

2023

ISSUE 4

THE DISCLOSURE DILEMMA: EXAMINING THE IMPACT OF THIRD-PARTY FUNDING IN ARBITRATION BY: KRISH BHATIA, INDIA Third-Party Funding: An Introduction

Centre (SIAC) took in its newly published

Discovering the Role of Third-Party Funding in

Investment Arbitration Rules, which provide a

Arbitration: It involves an external party providing

specialised set of guidelines for the conduct of

financial support to one side in exchange for an

international investment arbitration. According to

agreed return. Third-party funding can be

Article 24(l), the Tribunal has the authority to

employed to finance a broad range of arbitration

order the disclosure of a party's third-party

disputes conducted across different sectors and

funding arrangement, the identity of the third-

under different jurisdictions.(1)

party funder, and, as necessary, information about the third-party funder's interest in the outcome of

Third-party funding is a developing trend that is

the proceedings. The Tribunal may also order the

spreading throughout international arbitration

disclosure of whether the third-party funder has

and litigation industries. Australia, the United

agreed to bear adverse costs liability.

Kingdom, the United States, and Germany are the top jurisdictions in the world in terms of the

The Importance of Disclosure

quantity and sophistication of third-party funding

Disclosure of third-party funding is crucial in

arrangements. In the past, third-party financing

arbitration

was a more specialised industry, but in recent

promotes transparency and fairness in the

years, thanks to creative third-party funding

arbitration process. The disclosure of third-party

solutions that mimic corporate finance or venture

funding arrangements ensures that all parties are

capital

third-party

aware of the financial interests involved in the

funding services in these and other jurisdictions

arbitration, which can help prevent conflicts of

has expanded tremendously.

interest and ensure that the arbitration is

agreements,

demand

for

several

reasons.

Firstly,

conducted fairly. Third-party funding was mainly established in civil litigation where it was treated as a method of

Secondly, disclosure of third-party funding allows

financing litigation and also as a purpose to

for informed decision-making by the arbitrators.

reduce the risk which is associated with the

The arbitrators can take into account the funding

litigation purpose.

arrangement when making decisions, such as when awarding costs or determining the amount

In this regard, it is important to take note of the

of damages to be awarded. However, there is

approach the Singapore International Arbitration

2023

THE AOI JOURNAL

ISSUE 4

currently no general rule requiring parties to

existence and identity of third-party funders

disclose a third-party funding agreement.(2)

should be required to uphold transparency and fairness in third-party-funded arbitrations.(3)

Conclusion (1) Third-party funding in international arbitration, Ashurst.com

Article 21-bis, for example, requires the disclosure

(2019),

of the existence of any third-party funding

https://www.ashurst.com/en/news-and-insights/legal-

updates/quickguide---third-party-funding-in-international-

arrangement entered into at any time before or

arbitration/.

during the arbitration. The issue of whether

(2)

Third-party funding in international arbitration, Ashurst.com

(2019),

parties should be required to disclose third-party

https://www.ashurst.com/en/news-and-insights/legal-

updates/quickguide---third-party-funding-in-international-

funding is a matter of debate. The third-party

arbitration/.

funder would not invest unless and until the case

(3) Dalal Alhouti, Disclosing Third-Party Funding in International Arbitration: Where Are We aNow?, Charles Russell Speechlys (2022), https://www.charlesrussellspeechlys.com/en/news-andinsights/insights/litigation--dispute-resolution/2022/disclosureobligations-and-third-party-funding/.

is strong and supported by evidence. However, some argue that mandatory disclosure of the

THE AOI JOURNAL

2023

ISSUE 4

ARBITRATION IN PAKISTAN: OVERVIEW BY: MUHAMMAD FAISAL HAYAT, PAKISTAN The concept of arbitration is not new in Pakistan,

the global arbitration community stem from the

but the seriousness with which it is treated, is. In

absence of contemporary arbitration-friendly

the legal history of Pakistan, arbitration has seen

legislation. Currently, Pakistan has two legal

highs and lows. Although it was one of the first

regimes for arbitration, the Arbitration Act 1940

countries to implement arbitration, it lagged

(Act 1940) for domestic arbitration and the

behind other countries in its adoptions.

Recognition

and

Enforcement

(Arbitration

Agreements and Foreign Arbitral Awards) Act, Pakistan was one of the first nations to sign both

2011 (Act 2011) for international arbitrations. The

the New York Convention (NYC)(1) and the

Act 1940, despite its antiquated origins as a pre-

Convention on the Settlement of Investment

partition

Disputes between States and Nationals of Other

continues to govern arbitration practices within

States (ICSID)(2), having done so on December 30,

the country.(5) The Act 1940 is not based on the

1958,

These

UNCITRAL law, hence indicating a deficiency in

conventions were ultimately incorporated into

terms of the contemporary updates required for

Pakistan's

arbitration legislation.(6)

and

July

domestic

1965, law

respectively. in

2011.

Another

legislation,

remains

effect

and

interesting fact is that on 25 November 1959 Pakistan and Germany signed the first bilateral

The importance of incorporating UNCITRAL law is

investment

These

also emphasized by the Supreme Court of

Pakistan

Pakistan in the landmark case of Orient v SNGPL

favorably within the international arbitration

where the court remarked that “in a commercially

landscape. However, the latter half of the 20th

fast paced world, where the world is essentially a

century witnessed a significant transformation in

global village, it is regrettable that Pakistan,

Pakistan’s

international

although a signatory to UNCITRAL, has till date

arbitration, diverging from the evolving global

not incorporated the provisions of the Model Law

norms

into its domestic law and the Foreign Arbitration

treaty

developments

and

initially

engagement practices.(4)

history.(3) positioned

with The

main

factors

contributing to Pakistan’s relative isolation from

Act makes no mention of incorporation by

THE AOI JOURNAL

2023

reference.”(7)

ISSUE 4

institutions and the government. Considering the global shift towards digitalization, Pakistan should

In Pakistan, the courts currently grapple with an

explore the introduction of ODR systems. Models

overwhelming backlog of cases, with more than

like those successfully implemented in countries

2.2 million cases pending nationwide(8), and a

like Turkey provide a revolutionary way to

staggering

modernize and streamline the ADR procedure. In

thousand

cases

clogging

the

Supreme Court(9) alone. This backlog underscores

short, addressing the case backlog in

the urgent need for the implementation of

is a multifaceted challenge that necessitates a

Alternative Dispute Resolution mechanisms to

comprehensive approach. By harnessing the

alleviate the burden on the judiciary. One of the

potential of ADR and potentially integrating ODR

primary factors contributing to this case backlog

systems, the country can improve access to justice

is the presence of unnecessary cases in the courts

while alleviating the strain on its judicial system.

the courts

that could be more efficiently resolved through ADR

processes.

Therefore,

address

this

Ultimately, Pakistan's historical engagement with

pressing issue, several key roadblocks must be

arbitration has been characterized by both

overcome to establish effective ADR in Pakistan.

promise and setbacks. Despite early international commitments, outdated domestic legislation and a

The existing ADR framework faces numerous

growing backlog of pending cases impede the

challenges, with the foremost being a lack of

efficient resolution of disputes. To revitalize its

adequate stakeholder capacity, the absence of

arbitration landscape and alleviate strain on the

centralized coordination, and a shortage of

judicial

trained mediators, conciliators, and arbitrators.

incorporating

contemporary

strengthen

ADR

navigate

comprehensive

this

complex

strategy

landscape,

imperative.

system,

Pakistan

should

prioritize

UNCITRAL

infrastructure,

law, train

This

professionals, and explore digitalized dispute

should encompass initiatives for training ADR

resolution methods. Such comprehensive reforms

professionals, a strategic redesign of the ADR

can enhance access to justice and align Pakistan

system, and the crucial support of both

with global arbitration standards.

(1) PMB, SIGB. “Pakistan – Jurisdictions – Newyorkconvention1958.Org, 2023, https://newyorkconvention1958.org/index.php? lvl=cmspage&pageid=11&menu=832&opac_view=-1

NYCG

(5) Law Of Arbitration In Pakistan - Courting The Law. (2017)., from https://courtingthelaw.com/2017/01/16/commentary/law-ofarbitration-in-pakistan/#_ftn1.

1958” from

(6) First-step analysis: arbitration in Pakistan. (2023)., from https://www.lexology.com/library/detail.aspx?g=fb17baa0-25f4-4416ae1e-32fadc655bda

(2) International Centre for Settlement of Investment Disputes, Database of ICSID Member States, from https://icsid.worldbank.org/about/member-states/database-ofmember-states.

(7) Orient Power Co. Ltd. v. Sui Northern Gas Pipelines Ltd., 2019 CLD 1082, from https://jusmundi.com/en/document/decision/en-suinorthern-gas-pipelines-limited-v-orient-power-company-privatelimited-judgment-of-the-supreme-court-of-pakistan-thursday-12thdecember-2019.

(3) Germany - Pakistan BIT (1959), International Investment Agreements Navigator, UNCTAD Investment Policy Hub., from https://investmentpolicy.unctad.org/international-investmentagreements/treaties/bilateral-investment-treaties/1732/germany--pakistan-bit-1959.

(8) Tanoli, I. (2022). Over two million cases pending in courts across country. Retrieved 12 September 2023, from https://www.dawn.com/news/1699337. (9) .Supreme Court of Pakistan. (2023)., from https://www.supremecourt.gov.pk/decline-in-pendency-of-cases-inthe-supreme-court-of-pakistan-.

(4) 'Chapter 1: Introduction', in Ikram Ullah, Arbitration Law of Pakistan, (© Kluwer Law International), from https://www.kluwerarbitration.com/document/kli-ka-ullah-2021ch01?q=arbitration%20in%20Pakistan

THE AOI JOURNAL

2023

ISSUE 4

IMPARTIALITY AND NEUTRALITY: MEDIATION IN CLINICAL DISPUTES BY: VASUNDHARA VAISH, UNITED KINGDOM In Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWHC 1909 (Fam), Mr Justice Francis in his judgement said: "It is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other's positions." Turning our judicial heads to more rules, The Pre-Action Protocol for the Resolution of Clinical Disputes, para 5.1 states: "Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of alternative dispute resolution might enable them to resolve their dispute without commencing proceedings." In 2022-23, the NHS settled about 80% of the claims without litigation, saving more than £4.8bn of taxpayers' money. Mediation appears to offer significant benefits in most cases of clinical negligence. In other words, claims unsuitable for mediation must be worth the gamble in money and time. The success of the non-litigative method also resulted in the creation of a Dispute Resolution Pilot now renamed NHS Resolution. It is not only concerned with (what is called their first limb) personal injury and clinical negligence but also (the second limb) legal costs claims. Clinical negligence claims are often complex with legal and factual minutiae, making Joint Settlement Meetings less than ideal. Claimants (usually) who are in extremely sensitive/vulnerable situations may find this easier than going through the rigorous process of the courts. Many claimants want a sincere apology from the medical practitioner who was negligent and/or reckless. While litigation can be an effective method of resolving disputes, it may not always provide the necessary level of flexibility to take into account the emotions and predicament of the 'victim'. Many cases do not present themselves with bright lines of wrongdoing. In this regard, it may be expeditious if the parties are open in admitting their mistakes in confidence for the neutral mediator (who does not decide the outcome!) to have the reality without manipulation of facts.

2023

THE AOI JOURNAL

ISSUE 4

In contrast, an impartial judge decides the outcome by feeling more sure about one side of the story and hearing what other medical experts 'would' have done. This, however, does not always ensure the desired outcome for Claimants because clinical negligence cases are highly fact-sensitive and subjective, leading to unpredictable results. ADR is a booming industry not only in the UK but globally. Last year in England and Wales, 92% of the mediated cases were successful. About 75% of the claims in clinical negligence get settled through mediation. It is imperative to comprehend that Alternative Dispute Resolution does not preclude individuals from exercising their right to a just and impartial trial, as enshrined in both national and international human rights legislation. Mediation offers both neutrality and impartiality - clinical cases should NOT be considered 'out of the general run of the cases' instead, should be mediated with confidence to reach the best outcome.

THE AOI JOURNAL

2023

ISSUE 4

ARBITRATION AS THE PREFERRED MECHANISM FOR CRYPTOCURRENCY DISPUTES (1) BY: ZAFIRA HUDANI, U.S.A. The Concept of Cryptocurrency

Efficiency(11): An example of this can be found in

“Cryptocurrency” is defined as “a digital payment

the 2018 Draft of JAMS Smart Contracts Clause

system that does not rely on banks to verify

and Rules which provides a seventy-two-hour

transactions”.(2) A person can buy and sell this

window to appoint an arbitrator once the

and, each transaction is encrypted for verification

arbitration statement is served. The goal is to

(3), however, you do not own anything tangible.(4)

complete the arbitration process within forty-five days.(12)

Cryptocurrency must be on the blockchain. The term “blockchain” refers to a digital public ledger

Expert Arbitrator: This benefit enables parties to

that

the

the dispute to be confident that the resolution

cryptocurrency.(5) The “blockchain” is created

reached will take into consideration specific

through a series of “smart contracts”. In this

aspects that may affect the enforceability of an

context a “smart contract” is defined as a “coded

award.

describes

who

buys

and

sells

self-executing agreement between parties on a The Validity and Value of Cryptocurrency

blockchain”.(6)

The validity and value given to cryptocurrency Characteristics of Arbitration as a Favoured

differs throughout the globe. China has banned

Mechanism for Cryptocurrency Disputes

cryptocurrencies and does not recognize digital

Party Autonomy(7): A key benefit that is available

currencies as having any legal status of currency.

to the parties, irrespective of prior agreement, if

(13) The Member States of The European Union

the parties agree to arbitrate once a dispute

consider cryptocurrency as legal tender but

arises.(8)

cannot create their own cryptocurrencies.(14) In

agreement absent ambiguity or contradiction of

Switzerland, cryptocurrency is an asset under the

logic.(9)

Swiss Federal Tax Administration: They are

This

supports

enforcement

subject to the Swiss wealth tax.(15) In Britain(16) Confidentiality: It provides the parties with a

and the United States(17), cryptocurrency is

sense of security that the information used in the

treated as property.

process is generally not made public. In addition, cryptocurrency

provides

pseudonymity;

Enforceability of Agreements to Arbitrate

the

ability to be “identified, but the identification itself

The U.S. Supreme Court in Coinbase Inc. v Bielski

shields who you actually are”.(10)

“held

that

district

court

must

stay

its

proceedings while an interlocutory appeal on the

2023

THE AOI JOURNAL

ISSUE 4

question of arbitrability is ongoing”.(18) This

Conclusion

ruling seems to favor the agreement of the parties

The achievement of an enforceable arbitral award

to arbitrate. In contrast, in Chechetkin and

will depend on the ability of the parties to come to

Payward LTD& Ors Mr. Justice Miles stated:

an agreement after considering the complexities

“First, an arbitration clause (or indeed an award)

surrounding

does not deprive this court of jurisdiction”.(19) It

elements of party autonomy, confidentiality,

seems that the court favours protecting the

efficiency, and the availability of experts in the

consumer.

subject matter of the dispute create arbitration as

cryptocurrency

disputes.

The

the ideal conduit. (1) Types of Alternative Dispute Resolution: Mediation focuses on the intent of the parties, an impartial third party assists in facilitating a resolution to the dispute. During a neutral evaluation, each party provides information in relation to the dispute and a neutral party provides an opinion on how resolve the dispute. Source: Law, M. (2023). Forms of alternative dispute resolution. Miller Law. https://millerlawpc.com/alternative-dispute-resolution/. (2) AO Kaspersky Lab. (n.d.). What is cryptocurrency and how does it work? Retrieved September 1, 2022, from https://www.kaspersky.com/resource-center/definitions/what-iscryptocurrency. (3) ibid. (4) ibid. (5) ibid. (6) JAMS Mediation, Arbitration and ADR Services. (2022). About Us Jams Mediation, Arbitration and ADR Services. Retrieved September 1, 2022, from https://www.jamsadr.com/about/. (7) .In Coinbase Inc v Bielski, the U.S. Supreme Court noted that individuals who created an account to use the platform agreed that disputes would be resolved through binding arbitration. Source The Supreme Court of The United States. (2023, June 23). Coinbase Inc. v Bielski. The Supreme Court of the United States. Retrieved August 6, 2023, from https://www.supremecourt.gov/opinions/22pdf/22105_5536.pdf pg.1. (8) Lees, A., & Sajanani, S. (2022, November). Using arbitration to resolve cryptocurrency disputes, NTF disputes and other digital asset disputes. King & Wood Mallesons. Retrieved August 3, 2023,from https://pulse.kwm.com/cryptocurrency/using-arbitration-to-resolvecryptocurrency-disputes-nft-disputes-and-other-digital-assetdisputes/; The agreement to arbitrate can include but is not limited to the seat of arbitration and the rules that will be used to govern the process of arbitration when a dispute arises. (9) Scott, K., Brown, S., Flakoll, R., & Ossio, D. (2022, January 21). Arbitration for Cryptoassests and Smart Contracts Disputes. cliffordchance.com. Retrieved September 1, 2022, from https://www.cliffordchance.com/briefings/2022/01/arbitration-forcryptoassets-and-smart-contract-disputes.html. (10) Ginsburg, R. (2022). The Problem with Anonymity in Web3 and NFTs. Nft Now. https://nftnow.com/features/the-problem-withanonymity-in-web3-and-nfts/. (11) In Coinbase Inc v Bielski USC (2023) Section II page 6 Justice Kavanaugh noted that the many benefits of arbitration “(efficiency, less expense, less intrusive discovery and the like)”. Source The Supreme Court of The United States. (2023, June 23). Coinbase Inc. v Bielski. The Supreme Court of the United States. Retrieved August 6, 2023, from https://www.supremecourt.gov/opinions/22pdf/22105_5536.pdf, pg.6.

(12) Chen, J. W. (2022a). Dispute Resolution In The New Digital EraExploring Arbitration as a Suitable Mechanism to Resolve Disputes Over Crypto Assets. Contemporary Asia Arbitration Journal, 15(2), 255– 282. Pg.272 https://deliverypdf.ssrn.com/delivery.php? ID=203111070087067012002098104105077075015044057006032032065029 123076013064081007027028002059037127043063028108069100104115085 01610302304003302812110209209112602506609500307901402212302200 01041160720121090290100980660101140970300760670301090081040970 08127&EXT=pdf&INDEX=TRUE. (13) In the case Gao Zheyu v Shenzhen Yunsilu Innovation Development Fund Enterprise (LP) and Li Bin (2018) Yue 03 Min Te No. 719 an arbitral award was set aside as it was contrary to public policy ground, because the award was for damages in U.S. dollars and not cryptocurrency. This award violated a mandatory Chinese law that prohibits the exchange of cryptocurrencies to other fait currencies. Leong, S. (n.d.). Part 2: Key Issues in international arbitration of cryptocurrency disputes. withersworldwide.com. Retrieved September 1, 2022, from https://www.withersworldwide.com/engb/insight/part-2-key-issues-in-international-arbitration-ofcryptocurrency-disputes. (14) Comply Advantage. (2018, July 5). Cryptocurrency Regulations Around The World. www.complyadvantage.com. Retrieved September 1, 2022, from https://complyadvantage.com/insights/cryptocurrencyregulations-around-world/. (15) Comply Advantage. (2018, July 5). Cryptocurrency Regulations Around The World. www.complyadvantage.com. Retrieved September 1, 2022, from https://complyadvantage.com/insights/cryptocurrencyregulations-around-world/. (16) AA v Persons unknown and Ors [2019] EWCH 3556 (Comm) at 59; The court explained that Bitcoin [cryptocurrency] met the definition of property given in National Provincial Bank v Ainsworth [1965] 1 AC 1175 “as being definable, identifiable by third parties, capable of assumption in their nature by third parties and having some degree of permanence”. (17) Internal Revenue Service. (n.d.). Notice 2014-21 IRS Virtual Currency Guide. http://irs.gov. Retrieved September 1, 2022, from https://www.irs.gov/irb/2014-16_IRB#NOT-2014-21. (18) The Supreme Court of The United States. (2023, June 23). Coinbase Inc. v Bielski. The Supreme Court of the United States. Retrieved August 6, 2023, from https://www.supremecourt.gov/opinions/22pdf/22-105_5536.pdf, syllabus pg.1. (19) Chechetkin v Payward Ltd & Ors [2022] EWHC 3057 (Ch) (25 October 2022). (n.d.). https://www.bailii.org/ew/cases/EWHC/Ch/2022/3057.html, pg.8 at [52.

THE AOI JOURNAL

2023

ISSUE 4

THE ANTECEDENT AND HEADWAY OF INTERNATIONAL ARBITRATION: BANGLADESH STANDPOINT BY: FARHANA SULTANA, BANGLADESH The evolving business landscape in Bangladesh

provision for arbitration.(5) Until 2011, Bangladesh

has prompted a shift towards more structured

lacked an institution to oversee arbitration. To

and formal business relationships, replacing

address

traditional oral contracts. As global exposure

Arbitration Centre (BIAC) was established by key

grows, the need for clear contractual terms has

chambers of commerce, providing facilities and

become essential.(1) While parties aim to honor

administrative support for various alternative

agreements, differing interpretations or changing To address this, arbitration has emerged as a

International

for diverse ADR methods. It has introduced

efficiency and privacy compared to lengthy court

innovative physical facilities for arbitration and

proceedings.(3)

mediation, published rules, and provided sectorspecific training courses to nurture professionals.

Bangladesh transitioned from the 1940 Arbitration the

Bangladesh

BIAC offers facilities and administrative support

preferred method of dispute resolution, offering

gap,

dispute resolution methods.(6)

circumstances can render contracts ineffective.(2)

Act

this

UNCITRAL

Model

BIAC's

Law-based

Panel

Arbitrators

and

Mediators

comprises renowned experts.(7) It collaborates

Arbitration Act 2001.(4) The Code of Civil

with national and international entities, signing

Procedure 2003 (Bangladesh) has also inserted

THE AOI JOURNAL

2023

MOUs

assist

institutions

with

ISSUE 4

courts. Approximately BDT 1668.66 billion is

corporate

involved in these cases.(14)

arbitration.(8) Recognized by the central bank, BIAC's rules are endorsed by Bangladesh Bank. Notably, BIAC successfully mediated its first

However, it is worth noting that Bangladesh has

international dispute between Bangladesh and

attained notable successes through arbitration

Japanese investors in a joint venture.(9)

proceedings. A compelling illustration of this can be found in the case of Niko Resources v BAPEX (ICSID Case No. ARB/10/18), where the nation

BIAC has also carried out a total of 307 ADR

emerged victorious in a dispute concerning

hearings from which many cases have been

damages within the realm of gas field operations.

resolved successfully.(10) Yet other cases involving procurement,

loan

recovery,

and

(15) Equally significant is Bangladesh's effective

human

defense against Chevron's substantial claim of

resources disputes are yet to be resolved. Arbitration's

advantages

include

$240 million (ICSID Case No. ARB/06/10) directed at Petrobangla.(16) These instances underscore

quicker

Bangladesh's progress in navigating complex

resolution, unlike the lengthy civil court processes

arbitration terrain. However, despite the growing

that may deter foreign direct investment (FDI).(11) Bangladesh

faces

challenges

prominence

contract

arbitration

Bangladesh's

evolving business landscape, certain limitations

enforcement, contributing to its low FDI rating.

persist. These include challenges related to the

(12) The backlog of cases and slow resolution

enforcement of arbitral awards, which can be a

undermine the judicial system's efficacy. The main

lengthy process, potentially undermining the

barrier to this appears to be the number of the

effectiveness

cases that are outstanding and the net number of

Additionally, the need for continuous capacity-

new cases that are added to this every year. Based

building efforts, including arbitrator training, and

on data from the Supreme Court of Bangladesh, as

improvements in the regulatory framework are

of December 2022, there are nearly 4.2 million

evident. Costs associated with arbitration may

pending cases, with around 0.77 million being civil

also deter parties with limited financial resources

cases.(13) In commercial cases, the delay in

from seeking this method of dispute resolution.

delivering justice not only denies its essence but

While the legal system grows more open to

also carries financial implications.

arbitration,

the

arbitration

capacity-building,

mechanism.

specialized

education and necessary amendments to the The prevailing laws of the land want all disputes

arbitration act could strengthen the country's

to be resolved within 90 to 120 days whereas, the

expertise, potentially fostering quicker and fairer

reality is far from it. The average time for Money

dispute resolution methods. Addressing these limitations is pivotal for arbitration to fully realize

Loans Court (MLC) to resolve a claim is nearly 8 to

its potential and contribute to a more efficient and

9 years. According to the statistics of Bangladesh

reliable

Bank, till December 2022 nearly 72189 cases were

dispute

Bangladesh.

awaiting to be settled under the money loan

resolution

mechanism

2023

THE AOI JOURNAL

ISSUE 4

In summary, Bangladesh's economic growth and global exposure have led to a shift towards structured business relationships and formal contracts. Arbitration has emerged as a preferred method of dispute resolution. Despite challenges, arbitration successes and capacity-building efforts signal a positive trajectory towards more efficient and just dispute resolution in the country.

(1) E.R. Wight, "Developments in commercial arbitration," in "A Handbook of Dispute Resolution: ADR in Action," ed. Karl J. Mackie and Karl Mackie (Routledge, 2006), ISBN 978-1138975668.

(12) Satter, Barrister Sameer, “Arbitration in Bangladesh: Looking ahead”, BIAC, V-05, p -24,2015. (13) Emran Hossain Sheikh, 'Bangladesh has one judge for 95,000 people,' Dhaka Tribune, August 30, 2023, <https://www.dhakatribune.com/bangladesh/324006/bangladesh-hasone-judge-for-95-000-people>, last accessed 12th October 2023.

(2) Andrew Floyer Acland, “Resolving Disputes without going to Court: A Consumer guide to Alternative Dispute Resolution” Century Business Book, London (1995). (3) ibid-01.

(14) Sakhawat Prince, 'Financial institutions' Tk11,552cr stuck in money loan court,' The Business Standard, April 29, 2023, <https://www.tbsnews.net/economy/financial-institutions-tk11552crstuck-money-loan-court-623706>, last accessed 25th September, 2023.

(4) UNCITRAL, United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985M odel_arbitration_status.html>,last accessed on 12th September, 2023.

(15) International Centre for Settlement of Investment Disputes (ICSID), 'Niko Resources (Barbados) Limited v. People's Republic of Bangladesh,' Case No. ARB/10/18, April 30, 2019.

(5) The code of civil procedure, 1908, S.89. (6) Bangladesh International Arbitration <http://biac.org.bd/>, last accessed 15th September, 2023.

(16) International Centre for Settlement of Investment Disputes (ICSID), Chevron Bangladesh Block Twelve, Ltd. and Chevron Bangladesh Blocks Thirteen and Fourteen, Ltd. v. People's Republic of Bangladesh, ICSID Case No. ARB/06/10.

Centre,

(7) ibid-06. (8) ibid-06.

(17) Hodgson, M., & Suh, J. (2021). The ‘Problem’ of Costs in Arbitration: Controlling, Allocating and Funding Costs. In C. Lim (Ed.), The Cambridge Companion to International Arbitration (Cambridge Companions to Law, pp. 438-467). Cambridge: Cambridge University Press.

(9) TBS Report, 'BIAC settles first dispute through fast track arbitration process,' The Business Standard, March 18, 2020, last accessed 10th October 2023. (10) Bangladesh International Arbitration Centre (BIAC), ‘’BIAC Quarterly Bulletin’’, Volume 11, Number 1, January-March 2022, page02 <https://www.biac.org.bd/wp-content/uploads/2022/05/BIACBulletin-January-March-2022-.pdf>.

(18) Meraj Mavis, 'DCCI: Amend Arbitration Act to boost FDI, crossborder trade,' Dhaka Tribune, April 2, 2023, <https://www.dhakatribune.com/business/283131/dcci-amendarbitration-act-to-boost-fdi>,last accessed 25th September 2023.

(11) Gary B. Born, "International Commercial Arbitration" (2nd ed., 2014), Wolters Kluwer.

2023

THE AOI JOURNAL

THANK YOU TO THE AOI JOURNAL SUPPORTERS! TO SUBMIT YOUR ARTICLE OR ADVERTISEMENT FOR THE NEXT ISSUE, PLEASE EMAIL AOIJOURNAL@ADRODRINTERNATIONAL.COM

WWW.ADRODRINTERNATIONAL.COM INFO@ADRODRINTERNATIONAL.COM

ISSUE 4