BIT’s and BAT’s

Rainbow Warrior in Auckland Harbour after bombing by French secret service agents.Gary Born, Chair of the International Arbitration Practice Group at Wilmer Cutler Pickering Hale and Dorr LLP, was in New Zealand this week as part of his appointment as the Inaugural Senior Visiting Research Fellow at Victoria University Law Faculty’s New Zealand Centre for International Economic Law.

His visit marked the 30 year anniversary of the Rainbow Warrior case that shook a nation (those of us old enough to remember will recall the case of two French secret agents who blew up a Greenpeace ship in Auckland harbour). Mr Born acted as counsel for Greenpeace.

In addition, I was lucky enough to catch Gary speaking on his most recent initiative around a Bilateral Arbitration Treaty Regime, that aims to provide a default arbitration mechanism for the resolution of defined international commercial disputes.

The mechanism (fondly known as a BAT) would utilize the UNCITRAL Arbitration Rules, providing a means of resolving commercial disputes when nationals from contracting states had not agreed upon an alternative means of dispute resolution. Awards would be subject to recognition in the contracting states under the New York Convention and, subject to additional arrangements, in all New York Convention contracting states.

And the connection with mediation?

Bilateral Investment Treaty (BIT) investor-state dispute settlement (ISDS) relies heavily on arbitration and traditionally mediation has not figured. But, there is a feeling that this is changing since the International Bar Association published its Rules for Investor State Mediation in late 2012 – much has been written in the past year or so on whether investor state-mediation really is one of the last great unexplored tracts of the mediation landscape.

Gary’s initiative takes this one step further and all power to him – the challenge for those of us in the international mediation community is to find how the mediation process can be included in these regimes to add value to both BITs and BATs.

More to come on this topic … and special thanks to Dr Petra Butler who was instrumental in Gary’s visit to NZ.

Further information;

A draft Model BAT can be seen here. A commentary on the Model BAT’s provisions can be got from here. Further details about the Model BAT and its rationale can be found in an article here

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