UAE, not to be Out-Done by Qatar, has Finally Passed a New Arbitration Law

More Modern Arbitration Laws for the Arab Gulf

GAR reports that the United Arab Emirates has issued its long-awaited self-standing arbitration law, based on the UNCITRAL Model Law.  The Arabic version of the the law is found here.  In this post, I am reproducing the GAR story with a few edits.

His Highness Sheikh Khalifa Bin Zayed Al Nahyan, the president of the UAE, issued Federal Law No. 6 of 2018 yesterday, after it was approved by his cabinet of ministers in February.

It repeals and replaces the previous UAE arbitration law, contained within a chapter of the UAE Civil Procedures Law No. 11 of 1992.

The new law will apply to all arbitral proceedings, including both domestic and international proceedings.  Its 61 articles include:

• articulation of the principles of separability and competence-competence; 
• power for arbitral tribunals and courts to order interim and conservatory measures relating to ongoing or potential arbitrations, with no waiver of the right to arbitrate if they are issued by the court; 
• clarification of the competent court and its powers; 
• confirmation that electronic writings satisfy the requirement that the arbitration clause be in writing; 
• rules ensuring the enforceability of interim and partial awards; and 
• the requirement that requests for annulment must be initiated within 30 days of notification of the award to the parties, with clarification that they do not automatically stay enforcement proceedings.

The law also says that the UAE's minster of economy will coordinate with the arbitration institutions of the UAE to issue a charter on the professional conduct of arbitrators.

Essam Al Tamimi, senior partner at Al Tamimi & Co in Dubai says, “this state-of-the-art arbitration law will fortify the UAE’s position as the leading seat in the MENA region. It is a landmark law that is the best arbitration law in the region."

Thomas Snider, partner and head of arbitration at Al Tamimi & Co, says that “with this new law, the UAE has achieved a critical milestone in fostering arbitration as a leading and reliable form of dispute resolution for all types of commercial and construction disputes in the country.”

Mohammed El Ghatit, founder and co-managing partner of OGH Legal in Dubai, tells GAR he first heard talk of a new arbitration law in 2006, the year the UAE
acceded to the New York Convention, and that for the country to finally issue one [several drafts later] is a “fantastic achievement.”

He says there have been a few “minor changes” to the draft law adopted by the cabinet in February. For example, in that draft, an order for the enforcement of an award was not subject to appeal, though an order rejecting recognition and enforcement was. In the final version, both types of order can be appealed. The final version also prohibits members of the boards of arbitral institutions, or their administrative staff, from acting as arbitrators in cases administered by their
institution. This prohibition did not appear in the previous version.

Qatar passed a modern arbitration law in February 2017, making it one of the few countries in the Arab world with a modern arbitration law that would be familiar to European and American companies working in the region.  An English version of the law appears here.  I understand some problems may exist with the translation, but I do not know enough about the law to point out the language with possible traps.  Another translation appears here.

A summary of its key points appears here.  More commentary about the Qatari law here, here, and here.

ADR and the BP Gulf Claims Facility

Using ADR to Compensate Victims of Environmental Catastrophes

In my Environmental Dispute Resolution course, I devote one class to a discussion of the claims facilities used in the 9/11 terrorist attacks and the BP Gulf Coast oil spill disaster.  The facilities attempted to handle the inevitable claims arising from these traumatic events in an organized way that allowed expeditious handling of the claims outside of litigation.  Both adopted a form of arbitration.  

If well designed, these facilities could also enhance procedural justice for claimants --  voice, careful consideration of the facts by the neutral, impartiality by the neutral, and respectful and dignified treatment of claimants.

Updating the Story

An article in The New York Times today updates the status of the Gulf Coast claims facility.    

The Times describes the spill this way:

The oil rig fire and the nearly unstoppable fountain of oil that followed at the Macondo Prospect on April 20, 2010, was the largest marine oil spill in the nation’s history. The oil poured into the gulf for 87 days, fouling an estimated 68,000 square miles of waters and almost 500 miles of coastline from Louisiana to Florida.

The spill released approximately 210 million gallons of oil.

BP, its reputation damaged and facing administrative penalties, criminal prosecution, and vast class action lawsuits, agreed to create a process designed to handle the civil claims for damages. With time, the agreement governing the Gulf Coast claims facility morphed into a 1,000-page document entitled the 2179 Economic and Property Damage Class Action Settlement Agreement.  

BP's Buyer's Remorse

Increasingly, BP has had buyer's remorse as the tab for the civil liability associated with the spill has grown from a predicted payout of  $7 billion to an estimated pay-out of $ 19.5 billion.  The Times explains:

A central element of the agreement . . . would prove to be a time bomb. Instead of having claims calculators contend with different kinds of arguable evidence to prove that damage was linked to the spill, the negotiators came up with a formula that relied solely on financial data for proof of harm. If a business was in a certain region and could prove that its income dropped and rose again in a specific pattern during 2010, that would be enough to establish a claim.

This liberal test has brought a "frenzy" of claims.  

BP has unsuccessfully challenged in federal court the administrator's interpretation of the agreement.  Its lawyers also sought greater oversight of possible fraud in the claims handling process.  The supervising judge called in Freeh Group, a firm headed by Louis J. Freeh, the former F.B.I. director, to investigate. Freeh issued a 98-page report finding some problems, but not a vast system of corruption.  More recently, BP began appealing one in five claims awards under the appeals provisions of the settlement agreement.

ADR Expert Expresses Dismay

Kenneth Feinberg, who spoke to our students last year, served as the administrator of the 9/11 Victims Compensation Fund and as the first administrator of the Gulf Coast claims facility. 

The Times quotes him expressing "dismay" that the problems associated with the Gulf Coast claims facility “too easily lead[] to the conclusion that an alternative resolution doesn’t work, and in an oil spill you’re better off with an Exxon-Valdez, decades-of-litigation approach. That’s a real public policy missed opportunity.”

Exxon Valdez Spill

Feinberg references the March 24, 1989 accident in which the Exxon Valdez ran aground, tore its hull, and spilled 11 million gallons of oil into the Alaska's Prince William Sound. Until the BP spill, the Exxon Valdez accident was seen as the biggest environmental disaster in U.S. history. 

In 1989, only a few law schools were beginning teach ADR principles, skills, and values, most notably the University of Missouri Law School under the leadership of Len Riskin.  

Accordingly, the court adopted the best known approach to mass torts. It approved a class consisting of 32,000 fishermen, Alaska natives, landowners, and others whose livelihoods were gravely affected by the disaster. Lawyers for this class have explained the history of the litigation:

• A class action jury trial was held in federal court in 1994. The jury returned an award of $5 billion in punitive damages. 

• In 2001, the Ninth Circuit Court of Appeals ruled that the original $5 billion punitive damages verdict was excessive. 

• In 2002, U.S. District Court Judge H. Russell Holland reinstated the award at $4 billion. Judge Holland stated that, “Exxon officials knew that carrying huge volumes of crude oil through Prince William Sound was a dangerous business, yet they knowingly permitted a relapsed alcoholic to direct the operation of the Exxon Valdez through Prince William Sound.” 

• In 2003, the Ninth Circuit again directed Judge Holland to reconsider the punitive damages award under United States Supreme Court punitive damages guidelines. 

• In January 2004, Judge Holland issued his order finding that Supreme Court authority did not change the Court’s earlier analysis. 

• In December 2006, the Ninth Circuit Court of Appeals issued its ruling, setting the punitive damages award at $2.5 billion. 

• Subsequently, [in 2008,] the U.S. Supreme Court further reduced the punitive damages award to $507.5 million, an amount equal to the compensatory damages. With interest, the total award to the plaintiff class was $1.515 billion.

In short, class action claimants waited over 20 years to reach this litigated resolution.  One environmental organization called it a "historic legal battle." 

Most of my students would have been toddlers when the accident happened. 

So, back to my first paragraph.  These claims facilities must be well-designed.  The Gulf Coast claims facility will offer new lessons for future designers about when this alternative approach makes sense.

So far, the federal courts have backed the process and shown overall confidence in the current administrator, Patrick Juneau.   

May 9, 2014 Update: More on BP's challenges of certain claims here. 

Trust: Breach and Repair

Trust: Breach and Repair

The Nature of Trust

Three elements contribute to the level of trust one has for another:

• The individual’s chronic disposition towards trusting others;
• Situational parameters; and
• The history of their relationship. 

Two general categories of trust exist:

• Calculus-based trust: Grounded in the fear of punishment for violating trust and in the rewards to be derived from preserving it.

• Identification-based trust:  Based on the identification with the other person’s desires, goals, and intentions.  It exists because the parties can effectively understand and appreciate one another’s wants. 

Rebuilding Trust:

Re-establishing trust, once breached, is very difficult.  

“In conflict, trust is broken, cruel words are spoken, friendships dissolve, love turns to hate, and hate into revenge.” 

“Trust is rebuilt not by focusing on what the other person did or did not do, but on improving one’s own behaviors, increasing one’s trustworthiness, and being congruent – not just in words and promises, but in actions, attitudes, and character.  It depends on integrity and authenticity.”

Former adversaries can rebuild trust by:

• Treating each other with unconditional respect.

• Listening deeply and sincerely, especially to criticism.

• Expressing empathy for the other person, even if the other party does not listen or empathize in return.

• Speaking openly and honestly about problems and failures, especially one’s own.

• Being sincere and unlimited with apologies, as with criticisms.

• Negotiating clear boundaries and respecting those established by others, even when others do not respect them in return.

• Supporting participation and teamwork, empowering others, and making decisions collaboratively.

• Agreeing on vision, shared values, and goals, and acting on them.

• Acknowledging interests and being flexible regarding solutions.

• Being willing to sacrifice something important to aid a former opponent or to achieve a higher goal.

• Participating in social interactions and sharing information about each other’s personal lives.

• Being consistent and dependable in crisis and hard times.

These recommendations are easier to list than to implement.  Yet, doing so leads to personal growth and learning.  

And, even if your opponent continues to distrust you, by adopting these behaviors you can restore balance into your own life centered in positive intention, and even love, but certainly respect for yourself and for others.  

April 29, 2014 Update:  The blogger at The Legal Watercooler provides an interesting discussion of trust breach and repair through the lens of the show Mad Men.  I just started the sixth season on Netflix last night.  So, I am watching Don Draper's acts of breach of trust. I'm anxious now to learn how he goes about repairing that trust.  

#polarvortex, Climate Change, and My Course on Environmental Dispute Resolution

Understanding and Solving Complex Environmental Issues

This Cold Morning

Schools and offices closed as the temperatures dipped to lows not seen in decades. Experts explained what was happening here and here.  A deep dip in the jet stream allowed the frigid cold and winds of the North Pole to descend far south.  

This morning, my little micro-climate in the central Appalachian Mountains registered a temperature of nearly six degrees below zero.  My home town of St. Louis, inundated with a large snow fall and even colder temperatures, is reportedly "closed" today.  The entire city.

As I write this post, I am bundled in a fleece robe, long underwear, yoga pants, a hat, and my pink, fluffy, finger-less gloves.  I've got a lap blanket wrapped around my legs and mid-section, but I'm about to crawl inside my down sleeping bag so I can continue to work at the computer comfortably.

Boo Boo, my littlest dog, is wearing two layers of dog clothes and has curled up on what I call his "heating station," a heating pad set on "4."  I've wrapped him in a lap quilt to finish the heat treatment.   

Climate Change: The Deniers and the Believers

In a New Year's tweet, Donald Trump used the bitter winter weather to argue that global warming is "bullshit."   On Facebook, a friend posted this response:  "Just because you can stick your head in your fridge's freezer does not mean the house is not on fire!"  

And so, that is how so many conversations about our big problems go.  Funny, but they do not help us move forward in any meaningful way.

What might?  How about building more capacity for group facilitation, consensus building, and cooperative behavior?


Environmental Dispute Resolution Course at the Appalachian School of Law

Last year, my Dean, Lucy McGough, invited me to teach a course on Environmental Dispute Resolution. Yes, I said!  Please!  

Less than 20 of the 200 ABA-approved law schools in the U.S. offer this type of course. I am proud to say Appalachian School of Law is one of them.  

But, what a sad statement that statistic offers about the kinds of skills we are teaching the next generation of civic and legal leaders graduating from our nation's law schools. These graduates face complex problems that repeatedly teach us that "we are all connected."   Yet, they have a modest tool box of tools, unless they attend a school like ours.

Here's how I describe the course to students:

This course explores the characteristics of environmental disputes, how they arise, and how we choose to resolve them.  We will examine a range of consensual and non-consensual processes (litigation, arbitration, multi-party negotiation, mediation, negotiated rule-making, consensus-building, collaborative governance, and group facilitation) and evaluate the consequences of process selection.  We will explore and examine the advantages and disadvantages of different process choices in environmental disputes.

The course gives me a place to teach these various processes and their corresponding techniques, skills, values, and ethics.  I also use it to teach distributive bargaining skills when parties have a fixed pie they must divide.  More often than not parties think they have a fixed pie when, instead, they have many opportunities to expand the pie before they begin dividing it.

I rely on four original simulations to teach the course:

• Icky Stuff (about a dangerous by-product of a manufacturing process);
• To Hell with Your Angels' Share (about widespread property damage resulting from a fungus that grows in the presence of ethanol fumes arising from aging whiskey);
• Proposal to Reintroduce Red Wolves into the Central Appalachian Mountains of Southwestern Virginia (as the name suggests); and,
• The East River Wind  Farm Project (about the attempt of Dominion Power to locate a wind farm on a ridge of the Appalachian Mountains located about an hour from the law school).  

Students are assigned roles that include government officials or regulators, local businessmen, industrial representatives, farmers, landowners, environmentalists, eco-terrorists, hunters, local politicians, and labor.  Each representative has confidential facts he or she can share strategically as the negotiation evolves.

Last year, my trained mediators got an opportunity to serve as the group facilitators. They were surprised at the additional skills the task required and pleased at the chance to experience the complexity and promise of these types of processes.

At the end of the course, students will know:

• The relevance and prevalence of consensual processes (multi-party negotiation, mediation, negotiated rule-making, consensus-building, collaborative governance, and group facilitation) in solving environmental problem;
• The role of environmental litigation and adjudication to enforce standards, interpret laws, and to attribute liability;
• How to effectively prepare for and participate in an environmental problem-solving process;
• What consequences process selection has on the outcomes that are possible;
• How environmental conflicts differ from other conflicts and how they can be managed effectively;
• The central elements of effective advocacy and the different ways organizations manifest them;
• The purpose and effective elements of public comments to administrative agencies;
•  Judicial review of administrative decisions;
• The role of arbitrators and administrative law judges in administrative decision-making;
• Basic theory and practice of administrative adjudication;
• Basic theory and practice of administrative rule-making;
• Basic legal processes; how a case proceeds through the courts; and,
• The basic structure of government, and the federal/state separation.

I must have done something right last year, even if I barely stayed one step ahead of the course calendar. This year, I understand the course has a wait list.  I know it will be a lot more fun for me, and based on the lessons I learned last year, it should be a better course for students.  

We won't tackle climate change, although Mediators Without Borders keeps trying. But, we can get a sense of how talk works even with big, polarizing issues, like climate change. 

Back to School: Pre-Law Publication Recognizes Appalachian School of Law

The August 2013 issue of preLaw: A National Jurist Publication features the Appalachian School of Law in its article entitled: "Small and Personable."

The article focuses on 12 law schools -- located in Virginia, West Virginia and eastern Tennessee -- that offer small class sizes and a personal touch.

The discussion of ASL notes that its founders decided to place the law school in the heart of central Appalachia so it could serve the region in many ways.
It quotes our fabulous Dean, Lucy McGough, saying:

We are committed to and take great pride in our "Cheers Effect."  Here at ASL, everybody not only knows your name, but also is invested in your success in law school, in passing the bar, and in ensuring your professional career. 

It notes ASL's focus on experiential learning leading to practice-ready skills.  It recognizes our nationally known externship program.

It also describes our upper level focus on dispute resolution, our bar exam prep course, and our award winning community service program.

For the full article, see here.

Back to School: ASL's Unique Dispute Resolution Curricular Program

The Appalachian School of Law is the first, and so far, the only law school founded with a focus on Alternative Dispute Resolution (ADR).  ASL’s dispute resolution curriculum is unique in several ways.  Students get advanced training in negotiation  mediation, arbitration, early neutral evaluation, group facilitation, consensus building, and dispute resolution system design. 

2L Dispute Resolution Survey Course

First, only nineteen law schools, including ASL, require all their students to take an ADR survey class.  The curriculum reflects the realities of lawyering in an era of the so-called “Vanishing Trial."   The course provides students with basic interest-based negotiation skills.  It also introduces them to the role of advocate in several ADR processes, especially mediation.  

Research shows that ASLstudents who take only the required survey course have more training in ADR than most practicing attorneys.  This training creates more employment opportunities for students and allows graduates to more skillfully represent clients.

Lawyer as Problem Solver Certificate Program

But many students take more than the one required ADR course. They pursue the Lawyer as Problem-Solver (LAPS) Certificate. The Appalachian School of Law is one of only forty law schools with an ADR-related certificate program or curricular concentration.  

ASL’s LAPS certificate program focuses on the role of the modern attorney in facilitating strategic problem-solving for clients both inside and outside of the courtroom.  The program seeks to provide students with the skills they need effectively to serve their clients, including skills in oral and written communication, interviewing and counseling, negotiation, mediation, arbitration, transactional drafting, estate planning, and pre-trial, trial, and appellate practice.  

In the last several years, approximately 20 percent of students in the graduating class earned the LAPS certificate.  Students who earn the certificate have over 110 hours of ADR-related training in the skills, theory, and ethics of ADR.

Advanced Upper Level ADR Courses

Appalachian School of Law offers a number of advanced upper level courses relating to ADR.  They include:

• Workers’ Comp and Safety Laws and ADR
• Certified Civil Mediation
• Client Interviewing, Counseling, and Negotiation;
• Insurance and ADR Practice
• Environmental Dispute Resolution

Only eighteen of 200 ABA-accredited law schools offer a course in Environmental Dispute Resolution.

Other courses in the catalog that cover ADR topics include:

• Arbitration and Dispute Resolution System Design
• ADR In Criminal Cases
• Advanced Negotiation

     
   Co-Curricular ADR Activities

      Students can develop their knowledge and skills in ADR through several co-curricular activities.  The Appalachian Journal of Law dedicates its spring issue to ADR topics.  Students can write an ADR-focused note for publication and edit articles submitted by nationally known ADR scholars.  

      The ASL ADR Society offers students an opportunity to participate in ADR-related competitions at the intra-school, regional, and national level, where they have competed successfully against top-ranked schools.  
      For more information about the ADR program, contact me, Professor Paula Marie Young.  Additional information appears here.