“2nd Annual Hong Kong Mediation Lecture”

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“2nd Annual Hong Kong Mediation Lecture”

Hosted by: Mark Appel, Herbert Smith Freehills and the Hong Kong Department of Justice.

Transcript

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Good evening, good good morning to everyone that's dialled in from all over the world, we're delighted to welcome you to this second annual mediation lecture in Hong Kong. My name is Simon Chapman from Herbert Smith freehills. In Hong Kong, with very proud sponsors of the mediation lecture this year, I'm delighted that this has become a real fixture of Hong Kong legal week. Obviously, the lecture this year is taking place in a virtual format rather than physically in person. But that does mean that we've been able to reach a very wide audience, we have almost 300 people signed up for the lecture this evening, which promises to be a really interesting discussion. And we're particularly pleased to have Mark appel, who's joined us all the way from Malta this evening, to deliver his lecture. And I will hand over in a minute to the Secretary for justice, who will introduce mark in a bit more detail. I just wanted to say how pleased we all were to see so much interest in mediation with all of the events that are taking place.

This week, of course, there is the set piece of mediation conference, which takes place on Friday. events like this are really important for us as a firm to be associated with, it's particularly important for us to connect and to collaborate with colleagues and friends across the region. And today, of course, across the globe, to discuss trends in dispute resolution, and in particular, in mediation and best practices. And we're very much looking forward to hear Mark speak about some of the themes in investor state mediation today. We've committed to sponsor this lecture over the next five years. And we of course, hope to see many of you again next year, hopefully some of you in person rather than just over a screen, there will be an opportunity to ask questions of the speaker at the end of the lecture today, just as there would be in a physical format, you will see a q&a button hopefully, on your screen, please do send through any questions that you have over the course of the lecture. They will only be visible to the three of us. And we will select the best questions and ask mark to comment on those at the end of the lecture. But please do send through any questions that you have, that you would like Mark to address, into course. So without further ado, I wanted to hand over to Secretary for justice, who will welcome mark and introduce Mark more formally today. But thank you again to everyone that has joined in. And we look forward to a very interesting lecture.

 

Good evening, Simon. And good afternoon, Mark. I'm very pleased to be here to say a few words. The annual Hong Kong mediation lecture is actually as Simon was saying it's going to be one of the fixtures of the Hong Kong legal week, we started last year. And we are very, very pleased and honour for Herbert Smith freehills, to agree to sponsor it for five years. And we hope that this will continue to be a very good tradition that we in Hong Kong will be able to contribute to the development of mediation. It's very interesting also, for Herbert Smith, freehills to be to be related in this way, because I think I understand that not only are they one of the largest leading global law firm, but they have in the law firm that provides alternative legal services in China. And I think that's an interesting aspect to vote, and, of course, some the current chief executive office. The CEO, Justin D'Agostino has been in Hong Kong for a long time, and I'm very pleased that he's able to station here in Hong Kong whilst I'm heading this law firm, so keeping the link in Hong Kong and putting Hong Kong also on the map on the global map in that way. The evening tonight about the mediation lecturer is also a very interesting subject. Something goes away in Hong Kong has been trying to promote investment mediation, we've been running investment law and mediation training. Horses for the past two years. But for the covid 19 pandemic, it would be in that the third time this year, but we're going to reschedule it. And this is a very important subject and I think it is taking up a lot of attraction. For example, next Monday, the uncitral preceptory intercession meeting, we will also be talking about investment mediation.

 

So I'm sure we will be hearing a lot more on this subject. But most importantly tonight, we are very pleased to have Mr. Mark capelle to talk to us on this very interesting topic, investor state mediation at the tipping point. Mark is our long term friend. We've known each other a long time, we and most of you may know him through his senior executive positions at the American arbitration Association and the International Centre for dispute resolution. But some of you may not know and I think it's very relevant to what we're hearing tonight is that since 2016, Mark has served as the chair of the imi investor state mediation Task Force, working with state and investor representatives, expert academics, the energy charter Secretariat, exert and uncitral on investor state dispute settlement, reform and mediation in particular. Last year, Mark was able to join us in Hong Kong and spoke at the Department of Justice's media mediate a thirst pledge 2019 mediate, first Unlocking Potential, and he spoke on can mediators be deal makers, and it was a very impressive session. And thank you very much, Mark, for joining us, your expertise last year. And of course, again, sharing us your insights and expertise here with us tonight. I'm sure all of you are very eager to listen to mark and to learn from his experiences. And I will say no more and pass on if I may, to mark to share with us his expertise on this very interesting topic. Thank you.

 

Thank you, Madam Secretary. For that very, very kind introduction. I am only sorry not to be present with you today with friends and family in Hong Kong, but another day, perhaps the the subject of my presentation, which is investor state, mediation is in fact a, a theme or a study in leadership, both personal and institutional. And I can think of no, no to better hosts for this particular topic. Then the Hong Kong Department of Justice, and Herbert Smith, Hong Kong DOJ, for their mediation first policy, and Herbert Smith for their law, Herbert Smith freehills for their long standing activity in the mediation field, and their particular leadership on mediation advocacy. So this is a real pleasure. Some of you may be familiar with the tipping point, a book by Malcolm Gladwell. In that book, as well as in a follow up book called blink. Gladwell looks at how and when change occurs. What is that magic point in time, the tipping point, when that most powerful of forces inertia stops holding back change in necessary change. The topic of my speech seems to have arrived at that time in place. But what were the sticking points, what was required and what is required for change to occur, what accumulated events have led us to this place? So let's explore. You could be forgiven for asking why assisted voluntary settlements are a novel idea in investor state relations. After all, mediation is well established globally as an efficient and effective conflict settlement tool from divorce and child custody actions to major commercial disputes mediators have Globally work with parties to create process, facilitate effective communication and assist the creation of sustainable solutions. So why not investor state mediation? Well, certainly it's not the absence of problems. Conflict is natural in any commercial relationship, but adding in significantly different goals. So the investors profit motive on the one hand, and the state's interest in public interest, an interest in public well being on the other would seem to increase the opportunity for dispute significantly. In 2018, exceed the International Centre for the settlement of investment disputes, had 56 cases of file. I know, parenthetically, that exceed had 21 cases filed in 2008. So that's something like a 200% increase over 10 years. Not bad in terms of growth. But mediations, growth and mediation success is is in significant part, due to the opportunity to craft negotiated solution solutions that aren't proscribed by either contract or law. So whether it be an extension of time, or negotiated price, or resource requirements. In 2016, an internationalist, a friend of mine, and I think a friend of the secretaries as well, hearing that I involve myself in investor state mediation said to me, investor state mediation won't work.

 

states don't settle. But it seems they do. So between 1966 and 2020, ICSID reports that 35, some 35% of the cases, never went to conclusion, never went to decision. Now, other reasons beyond settlement exists, so exhaustion of funds, voluntary claim withdrawal, but I think it's fair to assume that a fair number of those cases were removed after a negotiated settlement was reached. An ad it's hard. Mediation is a simple extension of the negotiation process. It's enhanced negotiation, negotiation plus one, the mediator. So why not mediation in investors state faces? Well, it turns out there was a whole host of reasons, but the stilled, many of them come down to trust. Investors and states won't use a process they don't trust. The good news is that over the last eight years, much has been done to provide needed education and address legitimate concerns with the investor state mediation process. So what follows now in my remarks, is a bit of an event chronology with object lessons in leadership in effective communication, and innovation. In 2012. The International Bar Association published a set of investor state mediation rules, the drafting committee, was chaired by two veteran investor state practitioners, and as your being Brett and Bart Lega at the time, and it was in private practice. Now she is the chief legal officer of uncitral. Before moving to private practice, Bart, of course had worked for the US State Department. So plenty of experience there.

 

The drafting Committee for the IBA rules read like the who's who of internationalists, leadership caps, as do rules, rules like legislation are make make make practice legitimate. They normalise practice. They also set the standard for what process consumers can expect. I'm recalling now one of My own law school professors who too many years ago, held up a set of procedures, you know, set up, in this case commercial arbitration procedures and said they reflect the common law for that process. The iba investor state rules addressed both novel and best practice approaches to mediation for investor state cases by way of example, they address the possibility that too needy co mediators might utilise y to y to Well think of an investment project in trouble over community, environmental or label labour and employment issues, might it not be helpful to have an experienced treaty savvy mediator working in concert with a trusted locally based mediator more in tune with community concerns. The iba rules also adopted best practice in mediation, speaking to an organisational meeting, a mediation management meeting, and recognising the value of addressing critical issues up front, including language languages, pending arbitral or judicial proceedings. And their impact on the process, the possibility of adding additional parties to the mediation whose participation might be critical to its success, privacy and confidentiality issues and any special requirements for ratification of the ultimate mediated, negotiated settlement.

 

I'll speak to two other sets of rules later. But in truth in 2012, the IBA leadership raised the bar the intersection of public international law and commercial law has always made for an interesting debate regarding what skill set and knowledge base are best suited to the resolution of bias or investor state claims. Add political considerations, the possibilities of multiple forums of arbitration mediation, court actions and widely disparate cultural dynamics that mix and you might start to appreciate the challenge of identifying the right person to assist the negotiation of investor state disputes. And one of the first reported investor state mediation cases the parties use the services of one Robert Strauss Robert is legendary attorney and advisor to three US presidents and multiple corporate CEOs. Talk about setting our high in 2014, the imi the international mediation Institute recognising an opportunity to support mediation and investor state relations created the imi investors state mediation Task Force, the first co chairs of the task force here and as you'll be Brett and Barb Lega. Importantly, the task force took on the subject of qualifying investor state mediators bringing in many of the same international experts, academics, arbitrators, mediators, and institutional representatives who've been actively engaged in bringing Ester state mediation to the fore. In 2016, I inherited and Bart's good efforts as chair and in September of 2016 imi published its competency criteria for investor state mediators. It's available in detail on the imi website, but it lays out six areas for examination, an understanding of investor state issues, experience in mediation and other dispute resolution processes. So the need to understand multiple fora experience with different types of negotiation, Mediation and Conciliation understanding of arbitration and not surprisingly in this context, intercultural conflict Good to see. And then lastly, a broad Omnibus, catchable other competencies.

 

So subject matter expertise is useful process management skills, obviously useful, technological know, how wasn't that forward thinking, considering our our reliance on odr on online dispute resolution. By way of comment, we mediators understand that you take parties as you find them. And so they come from different cultures, different legal and political business systems. They hear and speak differently. And so different styles of mediation really must be contemplated on remembering again, a comment from a colleague many, many years ago who asked if she was facilitative, or evaluative in style, she replied, Yes. So she said, I facilitate in the morning, and I evaluate in the afternoon. The selection of the mediator could could be a topic on its own whatever these talks, but it's important because it gives process consumers a baseline in terms of expertise and experience to consider. Perhaps needless to say, it's a tall order to find someone who takes all of the boxes I've already given you. So what do you do?

 

Well, I've mentioned earlier the involvement of leading investor state ADR institutions, so the energy charter, Secretary and exit and onset trawl, those same institutions supported by imi and working in close concert with the Centre for effective dispute resolution, cedar develop and deliver. This is pre pandemic, a global series of investor state mediator training programmes. Unsurprisingly, those programmes were built around the imi criteria, they included intensive sessions on is DS environment is DS law in ISDS practice followed by a mediation skills training built to suit the investor state environment. By way of example, one of the role plays in the training programme involved a civil society organisation participating in a negotiation process. Perhaps, not surprisingly, attendees came from different worlds. So they were they were International, public, international lawyers, they were investor state arbitrators, they were commercial mediators. I had the privilege of attending one of those programmes as faculty and I can tell you they were extraordinary, it was extraordinary. So courtesy thought leaders as broad parameters of investor state procedure is in place question of mediator competency quality is being addressed, but nagging doubts still existed. a 2016 survey of experienced ISDS practitioners by the Centre for international law, National University of Singapore appointed up some concerns. It was the strong consensus of those surveyed that states would find the mediation option more problematic than meat then investors. Number one among perceived obstacles to acceptance was the perception that states preferred to defer your decision to a third party to give it to an arbitrator. I don't want to I don't want to make this decision. Why you ask, dig a bit deeper as they did and you'll find out obstacle number three was the first objections titled fear in this case fear of public criticism. Also, fear number seven, fear of future prosecution or corruption or fear number 16. Fear of setting a bad precedent as any student of history or business management will tell you fear is a great motivator or as in this case, a D motivator. Now, having already staked out a Leadership is at our institutions once more stepped into the breach, starting with the energy charter, conference, energy charter Secretariat, Alejandro Carr bio ladies staff in 2016. Understanding full well that neither investors nor states would participate in the process they didn't understand work with imi with Task Force, the draft and investor state guide mediation process. The guide is comprehensive in nature addressing both practical and procedural considerations. So by way, of example, considering when is the right time to meet, or how to prepare,

 

or how to provide for transparency. Yeah, working in public matters, even while allowing for necessary confidentiality in the negotiation process. But but the aect didn't stop there. Instead, they carried out a long series of running separate workshops, seminars with government representatives, investors, and investor state Dispute Settlement experts. That dialogue allowed aect to explore many of the concerns addressed in the single survey minimising some and illuminating causes and possible solutions. Others. Here are a couple of examples. It's always been assumed that the need for transparency would limit state's ability to negotiate complex contract and treaty based claims. But But state representatives reporting they that they had found ways to maintain transparency. So reporting on the existence of transparent reporting on the outcome of the settlement, reporting, parties were engaged in negotiation will all will transparency, all the while preserving the confidentiality of the negotiation sessions themselves? Unless anticipated problem, proof much tougher. It turns out that many states lacked and I suspect still necessary structural and policy support for mediating negotiation. Too often, even if the state wanted to mediate, there was either a scattered, limited or no process in place, or a budget that it turned to. So the state literally had no way to pay the mediator. Hire one but not pay them. Unfortunately, on receiving this feedback from the secretary at the energy charter conference, charged the secretary with drafting a protocol or protocols of accurate voluntarily be utilised by states, either by way of developing a domestic investor state dispute resolution framework.

 

We're serving as guidance concerning the practical and legal issues that should be considered by states in developing a conflict management plan for investment disputes, ECC aect. Staff started working on these issues with a select subcommittee of the imi investor state mediation Task Force aect also continued its discussions state representatives, tester state institutions, the resulting energy charter model instrument on our on management of investment disputes. I'll say it again, energy charter model instrument on management of investment disputes, delivers the requested comprehensive approach to investor state management. So, the model instrument makes conflict management good policy creates the administrative and budgetary framework addresses the need for early and effective interest between agencies communication and cooperation requires it balances PD needs for transparency and confidentiality. Importantly, the model instrument produced a really innovative idea, a way to address fear amid concerns about political backlash and potential charges of corruption, creating a multi agency commission. So findings state, multiple agencies to manage treaty based disputes Simply stated, shared decision making shared shared success.

 

Earlier when talking about the IBA investor state mediation rules, I spoke to the power of scedule rules in terms of legitimising in a normalised process, it should come as no surprise then that as mediation has become better, no.

 

Exit

 

world back and uncertain. Separately took up the challenge of drafting new meaning. For reasons I'll explain briefly, those rules are different. I'll start with exit exit staff. And frog kunichika. In particular, have been part of virtually every major new initiative in the development of investor state mediation from the start exit faced to issue issues. many if not most of you will know that exit is featured for years a conciliation process as opposed to mediation. The terms conciliation and mediation are frequently confused, and for many mean one in the same but it's it's processes well defined, if less frequently used and clearly wouldn't need current expectations of the process. And speaking of process, whatever mediation process X is published and will publish will need to but dovetail or fits, you know, with existing ex administrative process. So, like the energy charter secretary, exit engaged in lengthy conversation with ISDS users arbitrators, mediators experts. What has resulted date and I say to date, the hope that the exit mediation rules will be adopted in 21 is really a bespoke investor state mediation process. The rules are detailed in terms of filing registration requirements, but strikes me that's natural, given their place in larger exit dispute settlement process. Happily, Apple. They also referenced several ISDS specific opportunities and needs by way of example, the draft exit rules specifically addressed the possibility of one call meeting. They also recognise that a more complex nature of investor state disputes will benefit substantially from fulsome early discussion, procedural. The first session, as it's captured by the rules, suggests discussion of representation, communication, confidentiality, and ratification, among others. Important early discussion avoids this understandings later. So you can imagine one of your official colleagues now asking you why is it taking so long? You happily early discussion also an agreement on procedural matters creates what we in the mediation or the negotiation you'd like to call habits of agreement. That's that's things. Good thing. sets, it sets a good a good table for further discussion. There are subjects that aren't mentioned in the rules. And might be considered so for example, something I would consider and mediators will certainly think about dressing in that early management conference is addressing issues of public pronouncements or public communications. Those of you active in the public for how many times have you heard better to avoid negotiating through the press. Now, the draft uncitral changing, we're now talking on trial as opposed to exit, I have taken a different again for good reason. The uncitral rules historically have been the group standard for a whole host of commercials, they they any any uncitral would necessarily be less focused on any particular commercial, let alone something as specific or esoteric as the as investor state mediation. So that's resulted in a simplified, perhaps you could characterise them as only the essential

 

by way of example, you want to draw wills, when mediation begins and ends, appointment of the mediator or mediators, conduct of the mediation and communication, including provisions for an early meeting. confidentiality, by the way, confidentiality or struggle, even the settlement agreement itself is confidential absent, the agreement of the parties otherwise, orders required by law, or if required for non admissibility of mediation, communications and other proceedings. The settlement agreement is addressed, and particularly in the context enforcement regime. So now once the trial is thinking, and mediator immunity, so immunity from service process, we don't want mediators testifying in post CD's after the fact and limitation of liability for years. I note and you can see on the constant trawl, sort of legislative pages and mission notes that there have been some very useful comments various states of notable among them are calls for both China and Italy to make express the option of online dispute resolution, option, help and cons now odr of mediation What should we approve of immense value parties and practitioners alike? Is the draft uncitral notes on mediation also coming? Many of you will be familiar with the uncitral notes organising arbitration proceedings, originally published in 1996. Think and updated in 2016. The mediation notes once the trauma patients provide both rationale for the procedures themselves and also practical advice concerning organisation, conduct proceedings, including and enforced issues. convention, which of course brings me perhaps the single most important contributor to increased confidence, international mediation, which is the Singapore convention itself.

 

Many of our colleagues in the mediation community be forgiven for understanding the need for an enforcement next, after all, mediated settlements are run voluntarily by the parties. I recall the study favourably favourably comparing the state power of mediated settlements to judicial orders in the United States some 40 years ago. Long, long time history still, we're trying to change perceptions and some issues. So it is a fact that in many jurisdictions, a mediated settlement requires future performance. future performance is tantamount to a contract with usual defences to enforce self lack of agreement on essential terms, lack of authority, and that is paid users on certain certainty does not predict success and certainly doesn't reduce at 2016 to 2007. International mediation Institute global power conference, one of the top rent, in fact, maybe it was the top neath process. Change of users was legislation for enforcement and recognition of mediated agreements. Enter the United Nation convention, international settlement agreements resulting from mediation. Singapore convention, the Singapore convention provides a simple straightforward, global mediator mediation settlements enforcement enforcement.

 

couple of quick notes.

 

The convention is designed to act as a shield as well as a sword so it's for enforcement, but it's also for action. So protection against future legal actions. The protections, quote unquote, already settled in deference to states. Yes, so comet, the convention relies on existing state enforcement regimes. Now there are issues. So the convention has grounds for status, setting aside mediated agreements, including policy. So clearly, tension will lead to post ratification decisions in particular jurisdictions. Finally, I've noted that three ratifying states, Belarus, Iran, Saudi Arabia, have exempt state from coverage under the convention. With respect, I think that's a lost leadership lost revenue opportunity states and particularly states wishing to purge foreign direct investment will deal will do well to include state agreements within the protections afforded by the convention. This is especially true given developments in the field of the state is in a position in a position to establish forcement regime itself and readily available tools like the energy charter model instrument for management of fester state conflict are are available states to create that regime. So effect state notice, thorough preparation, state editing, in response.

 

I mentioned 100 out of the convention, second opt out option is reserving a finality, terms of settlement agreement until the time of mediations

 

I could see an argument being made for the state that for settlements involving the state, that settlement should be agreed to at the time of mediation, what it would do, and I'm now thinking that they state that he would give me leverage at the negotiation table. So I am now in the position of saying not only are we going to we're going to agree and the agreement is going to be under the

 

implementation and dialogue and process goes on. And notably it will straw working group three, where investor state work is going on and I told investment meeting is A portant topic of discussion. So what about Brussels? As the old proverb says the proof pudding is in the eating. In a recently reported is mediation, I should say successfully successful mediation, the profile of assisted the reporting state bester. looks a whole lot if you look at her profile looks very much like the imi investor state issue criteria. Also, today, in anticipation of this seminar, I noted the that on the imi website, the page featuring the energy charter model instrument has been downloaded over 16,000. cells so someone's interesting. For those of us familiar with history of the New York convention, it might come as something of a surprise, or perhaps a delight. At eight some 55 states have adopted. How you might say, What about COVID? our discussions every day seems? Well, if anything, seems to be COVID is accelerated the need for negotiated solutions. Investors are late with supply chain disruptions with employee availability employee health states, on the other hand, are reallocating budgets to address dire public health and economic circumstances brought on by lenders. I started his investor state mediation at the tipping point. I think so. But time will tell. kind, thanks for your attention. And I welcome a few questions.

 

Mark, thank you so much for that. really fascinating overview of the issues in relation to investor state mediation, you touched on a large number of topics that I think will be of interest to those who have joined us remotely. And I just wanted to remind everyone that you're free to submit questions in the q&a button, which should appear somewhere towards the bottom of your screen. If you do have questions to mark. We did have a couple of questions already that have come through over the course of the lecture. The first question mark was a sort of practical question in relation to timing. And you talked about the sort of effectiveness of investor state mediation more generally, in your view, do you think it's more likely that there would be a better uptick for uptake rather for investors? Using the mediation process as a remedy of first resort, if you like so before any formal proceedings are commenced? Or is it more likely that the draft rules that you've talked us through will be invoked more frequently, while some form of formal proceeding is already underway?

 

Yeah, thanks, I'm great question. I have to say, I'm reminded on this day of the, I guess, the day after the US elections of something I used to hear in the US about Chicago, they would say, vote early and often. And I think I think mediation should really be contemplated early and often. You know, mediation is an excellent conflict management tool, and you'd need not have a at Even a claim in place to take advantage of the mediation process, I think the best users of the process, again, now speaking to both states and investors, why wait for it to get to the point where someone needs to file for investors state arbitration, why not engage a mediator when the problem surfaces, while there are still multiple, sort of creative and effective problem solving solutions available? You know, so so I really appreciate that question. Now, I have to say, is it still effective at the time of a at the time of and during an investor state arbitration? And again, I would say yes, perhaps in parallel. Frankly, I think mediation and I've seen it work in a post award context, because it's lovely to win, but it's important to collect. And mediation can be a great way of taking a decision of some kind, and then negotiating a an outcome that is agreeable to the parties. So I guess, Simon, early and often is how I would answer that question.

 

That's a good answer. Well, the question that's just come in, you've talked to us over the course of this lecture about the development, the history of mediation in the context of ISDS matters. One question we've had from somebody who's dialled in, is to ask you to look into your crystal ball. And tell us, what do you think about the development of investment mediation? Perhaps over the next 10 years? So looking into the future?

 

Okay, that's a great question. And, of course, it's it is, as we all know, dangerous, at very least to try to prognosticate. But if we are at the tipping point, think about the universe of cases, if 35% of the cases that are being read even only 35% of the cases, at exit, or being resolved, or short of a hearing. That's a terrific number of mediations to start with. And assuming, and I think we have to assume that globalisation will continue, no matter our politics of the moment, globally, wherever we may be located, we really have come to rely on each other. I think mediation will have a far rosier future in terms of uses as a conflict management and Dispute Settlement tool for investors state mediations. So I think it's if the person who submitted that question, I would say, you know, get it get that training now, because it's gone.

 

And one topic that you touched upon was some of the training that's being given or produced to prepare people to be good mediators in the context of ISDS cases. And do you think that people who have good arbitrators can also be good mediators?

 

It's a very good question. It's the same question we used to be asked when I was asked whether judges would make a good mediators. And and of course, you give them the famous lawyers answer, which is it depends. You know, I think I think some arbitrators actually have very good, communicate interpersonal communication skills, can work with parties. Some of them exhibit that I think in the best of them in a preliminary hearing context, look at the ones who really draw out agreements, or draw out stipulations, I think, arbitrators who have that kind of approach are going to be better suited at the serve as mediators. Having said that, mediation and arbitration are very different skill sets. And just as there are some mediators who really would not do so well as arbitrators, there are some arbitrators who could not do so well.

 

And then that's what one final question just as we're coming up to the hour, and you talked about the confidentiality of mediation proceedings, and I think you mentioned that, for some of the draft rules, confidentiality is baked in by default, not just the mediation itself, but also the any settlement agreement that is reached as a rule result of the discussions? Do you think that there is a slight tension between the obvious need for privacy and confidentiality in the mediation context, and the push for greater transparency? With regard to the settlement of investor state disputes more generally, sort of this push for more information to be published in the public domain? Is there an inherent tension, do you think?

 

Absolutely. And, and speaking from Europe, where we saw a really cascading sort of public very public and very heated suggestions that investor state arbitration was somehow, you know, smoky room sort of agreement, you know, smoke filled room sort of environment where people, you know, came to decisions that affected the public. So so clearly that concern exists whenever you involve a public entities. Having said that, it was very interesting discussions at the energy charter organisation to hear governments say that by making a particular aspects of the process transparent, so we support it, by the way, it's easier if you have a policy supporting mediation. Yeah. So now you say, of course, we're mediator, we mediate whenever we have a problem. And then after that, we are in negotiation with x. But then, you know, you don't bring the camera into the negotiation. Maybe you agree with the mediator as the mediator, perhaps saying what's going on? mediator will say something like we're engaged in frank discussions. Okay. And then ideally, the parties then make public the ultimate settlement agreement. So there is a way that the tension absolutely exists, but there is a way to address it. Or theoretically, I will, I know that the exit rules actually have gone back and forth on the issue of what's confidential, and they now require confidentiality for every aspect of process. So that shows you just how sensitive that issue.

 

Well, not where we're right on the hour. It's exactly eight o'clock in the evening in Hong Kong. So perfect timing. Thank you. Again, it was a terrific lecture, really interesting review of what is a fascinating topic. And as you said a few moments ago, a topic that's likely to see some significant development over the next decade. So thank you, again for agreeing to be our speaker at the second annual Hong Kong mediation lecture. And thank you to everyone that's, that's dialled in, and that has asked questions. It's great to see so many people from so many different parts of the world, and lots of different organisations represented this evening. So thank you all and wish you a very good evening. Thanks, Simon.