Hatespeech and digital platforms

Last week I noted work about free speech and vilification. It is interesting to see the subsequent European Court of Human Rights chamber judgment in Beizaras and Levickas v. Lithuania (application no. 41288/15).

The Court held unanimously that there had been a violation of Article 14 of the European Convention on Human Rights (ie regarding prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) alongside a violation of Article 13 (right to an effective remedy). In considering online homophobic hate speech the Court notes that the case raised questions about the State’s responsibility to protect individuals from homophobic hate speech.

The applicants  - Pijus Beizaras and Mangirdas Levickas - are two young men in a same-sex relationship and resident in Lithuania. In December 2014 Beizaras posted a photograph of them kissing on his Facebook page, which went viral, with hundreds of comments in Lithuania, mostly calls for the applicants to be “castrated”, “killed”, “exterminated” and “burned” because of their same-sex affinity.  Some were about LGBT people in general; others personally threatened the applicants. Lithuania's prosecuting authorities and courts refused to launch a pre-trial investigation for incitement to hatred and violence against gay people, finding that the couple’s behaviour had been provocative and that the comments, although “unethical”, did not merit prosecution.

The ECHR found  that the applicants’ sexual orientation had played a role in the way they had been treated by the authorities, which had quite clearly expressed disapproval of them so publicly demonstrating their homosexuality when refusing to launch a pre-trial investigation. Such a discriminatory attitude meant that the applicants had not been protected, as was their right under the criminal law, from undisguised calls for an attack on their physical and mental integrity.

After being targeted online  the two men had  turned to the National Lesbian, Gay, Bisexual and Transgender Rights Association, a  non-governmental organisation, asking it to complain to the authorities and to request that the government initiate criminal proceedings for incitement to hatred and violence against gay people. The prosecutor decided not to initiate a pre-trial investigation, indicating that he considered that the authors of the comments had merely been “expressing their opinion” and that although they had reacted “unethically”, the behaviour did not warrant prosecution, in line with the Supreme Court’s practice in such cases.

Lithuania's domestic courts then fully endorsed the prosecutor’s stance in a final ruling of February 2015, adding that the applicants’ behaviour had been “eccentric” and deliberately provocative. In particular, the applicants could have foreseen that posting a picture of two men kissing would not contribute to social cohesion and the promotion of tolerance in Lithuania, a country where “traditional family values were very much appreciated”. It would have been preferable for the applicants to share their picture with “like-minded people”, especially since Facebook gave the possibility to restrict access to just friends.

Relying on European Convention on Human Rights Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private and family life), the applicants argued in August 2015 that they had been discriminated against on the grounds of sexual orientation through the authorities’ refusal to launch a pre-trial investigation into the hate comments on the  Facebook page. They also argued that the refusal had left them with no possibility of legal redress, in breach of Article 13 (right to an effective remedy). Third-party comments regarding the application were received jointly from the AIRE Centre (Advice on Individual Rights in Europe), the European branch of the Lesbian, Gay, Bisexual, Trans and Intersex Association (“ILGA- Europe”), the International Commission of Jurists (ICJ) and the Human Rights Monitoring Institute (“the HRMI”).

The Court found in relation to Article 14 and Article 8  that the comments on Beizaras’s Facebook page had clearly affected the applicants’ psychological well-being and dignity, bringing the case within the scope of Article 8 and therefore Article 14. The Government had acknowledged that the comments had been “offensive and vulgar”. However, it denied that the applicants had experienced discriminated, arguing that decisions not to start a criminal investigation had had nothing to do with their sexual orientation. It argued that the decisions had been based on the applicants’ behaviour (which among other things had been provocative because of a cross woven into the second applicant’s jumper, potentially sparking conflict with people of a different cultural and religious background) and on the fact that the comments in question had not reached a level so as to be considered criminal.

The Court in contrast considered that the applicants’ sexual orientation had played a role in their been treatment by the authorities. Focussing on what they considered to be the applicants’ “eccentric behaviour”, Lithuania's criminal courts had expressly referred to their sexual orientation in their decisions. They had quite clearly expressed disapproval of the applicants so publicly demonstrating their sexual orientation when refusing to launch a pre-trial investigation, citing the incompatibility of “traditional family values” with social acceptance of homosexuality. Because of that discriminatory attitude, the applicants had not been protected, as was their right under criminal law, from what could only be described as undisguised calls for an attack on their physical and mental integrity.

The ECHR found that the hate speech had been inspired by a bigoted attitude towards the gay community in general and that the same discriminatory state of mind had been at the core of the authorities’ failure to comply with the duty to investigate in an effective manner whether those comments had constituted incitement to hatred and violence. In downgrading the danger of such comments, the authorities had at the very least tolerated them. The ECHR therefore found that the applicants had suffered discrimination on the grounds of their sexual orientation.

The Court further considered that Lithuania had not provided any justification showing that the difference in treatment had been compatible with the standards of the Convention. Accordingly, the Court held that there had been a violation of Article 14, taken in conjunction with Article 8 of the Convention.

In relation. to Article 13 (right to an effective remedy) the Court found that the Lithuanian Supreme Court’s case law as applied by the prosecutor (subsequently upheld by the domestic courts) had not provided for an effective domestic remedy for homophobic discrimination complaints. In particular, the Court noted with concern that the Supreme Court’s case-law emphasised the “eccentric behaviour” of persons belonging to sexual minorities and their duty “to respect the views and traditions of others” when exercising their own rights.

Further, although the Supreme Court had previously examined homophobic speech, it had never been as serious as in the applicants’ case and the Court had thus not had the opportunity to clarify the standards to be applied. That finding was borne out by statistics which showed that of the 30 pre-trial investigations regarding homophobic hate speech opened in Lithuania between 2012 and 2015, all had been discontinued. Indeed, the domestic court which had handed down the final ruling in the applicants’ case had even pointed out that opening criminal proceedings would have been a “waste of time and resources”.

The ECHR noted reports by international bodies such as the Council of Europe’s European Commission against Racism and Intolerance (ECRI) that there was growing intolerance towards sexual minorities in Lithuania and that the authorities lacked a comprehensive strategic approach to tackle racist and homophobic hate speech. The ECHR therefore found that there had also been a violation of Article 13 of the Convention in denial of an effective domestic remedy for complaints about a breach of their private life owing to discrimination on account of sexual orientation.

Mediation and 'Smart' Contracts

'The Role of International Mediation in Data Protection and Privacy Law - Can It be Effective?' by Sinta Dewi, Robert Walters, Leon Trakman and Bruno Zeller in (2019) 30 Australian Dispute Resolution Journal 61 comments

The role of international mediation and mediation more generally in data protection and privacy law can be an effective tool to resolving data disputes. This article will examine the data protection laws of Indonesia, Australia, Singapore, the Philippines, European Union and China. This comparative examination is timely, with the creation of the Convention on Enforcement of International Settlement Agreements Resulting from Mediation (Singapore Convention) which opened for signing on 7 August 2019 and the associated Model Law. If implemented and utilised, the Singapore Convention has the potential to become an effective legal mechanism to assist in resolving cross-border personal data disputes.

'Smart Contracts: A Requiem' by Eliza Mik in Journal of Contract Law (Forthcoming) comments

"Smart contracts” are technologies that facilitate the generation and transfer of blockchain-based crypto-assets. The unfortunate labeling of these technologies as ‘contracts’ has spawned a plethora of legal theories, which are built on unsubstantiated technical claims, terminological misunderstandings as well as on a general disillusionment with traditional institutions. Concepts such as “validation” or “self-enforcement,” both of which constitute permanent fixtures of the “smart contract” narrative, seem to have hijacked common sense with promises of certainty and guaranteed performance to the point where a structured and logical argument is rendered difficult. It is necessary to clarify the meaning of the term and remind those who debate the legal enforceability and validity of “smart contracts” of the basic principles of contract law. In particular, it is necessary to recall that contract law is indifferent to the manner parties express their agreement

NSW Dispute Resolution

The NSW Law Reform Commission report on dispute resolution comments

Dispute resolution processes (traditionally referred to as “alternative dispute resolution” or “ADR” processes) can provide many benefits for disputing parties. They can reduce the costs and delays associated with litigation and facilitate flexible outcomes. In the context of litigation, dispute resolution can keep disputes private and avoid exposing them in public hearings. It can ensure cases are managed effectively, for example, by narrowing the issues in dispute. Dispute resolution can also assist parties to preserve, repair or improve their relationships. 

There has been a considerable growth in the use and availability of dispute resolution processes in the past couple of decades. This is reflected in the NSW statute book which now includes around 50 statutes that make provision for, or acknowledge the availability of, some form of dispute resolution. 

On 1 March 2013, the Attorney General asked us to review statutory provisions for dispute resolution. ... Our consultation process involved two consultation papers, a survey of NSW government agencies that administer dispute resolution provisions, and some face to face consultation. 

The two consultation papers were:

• Consultation Paper 16 – Dispute Resolution: Frameworks in New South Wales (“CP 16”) (released in April 2014), and 

• Consultation Paper 18 – Dispute Resolution: Model Provisions (“CP 18”) (released in December 2016) - noted here

In the first half of 2014, we also surveyed all NSW government agencies that had a role in administering the dispute resolution provisions. We wanted to understand how broadly the provisions are used and what issues the agencies encountered. We received 91 responses. 

CP 16 gave an overview of the statutory provisions for dispute resolution in NSW. It asked what provisions are appropriate in the variety of contexts the existing provisions cover. We received 14 submissions. These are listed in Appendix C. 

Mediation emerged as the focal point of stakeholder discussion in response to CP 16. We heard that mediation and quasi-mediation processes in NSW statutes vary in detail and coverage and are often inconsistent. Stakeholders suggested that this patchwork might contribute to uncertainty among users. In particular, it is sometimes unclear exactly what types of dispute resolution are available and what safeguards apply in particular statutory contexts. Further, there are currently no provisions that protect parties during commercial/consensual mediation outside a judicial or particular statutory context. 

Despite this, we were not persuaded there would be significant benefit in attempting to consolidate these existing provisions into one or a small number of models. Rather, we considered it might be beneficial to develop model provisions that would apply to mediations taking place outside any statutory or judicial context, except where parties agreed not to apply them. We also considered these model provisions could also be applied in some existing statutory contexts. 

In CP 18, we suggested model mediation provisions on a limited range of topics:

• definitions 

• confidentiality of mediation communications and their admissibility in evidence 

• mediators’ immunity 

• termination of mediation, and 

• enforcement of the outcome of the mediation.

 Submissions to CP 16 had identified these areas as appropriate subjects for uniform provisions to improve consistency and clarity.

However, the majority of submissions to CP 16 did not support:

• provisions governing the representation of parties to a mediation Introduction 

• a requirement of good faith participation, or 

• provisions governing the choice of mediation practitioners.

Stakeholders thought it would be difficult to achieve uniformity in these areas in light of the wide variety of contexts in which mediation takes place. 

In CP 18, we suggested the model provisions could be applied in the statutes listed in Appendix A to this Report. We did not think they were appropriate for application to those statutes listed in Appendix B to this Report. Accordingly, we proposed in CP 18 that the statutes listed in Appendix B be excluded from the scheme. This includes statutes that apply to judicially-ordered or supervised mediations, and statutes that already cover the same or similar matters as the model provisions. We thought these excluded statutes could be amended in due course (to the extent appropriate) to bring them into line with the model provisions. 

We initially intended that the model provisions would apply to the related processes known as neutral evaluation and conciliation. Submissions to CP 18 (listed in Appendix D) generally did not support such extension, as we discuss below. ...

The Commission's conclusion is

After further consideration, we have decided not to recommend the adoption of the model provisions suggested in CP 18 or any other changes to the law. 

This conclusion is informed by a number of interrelated considerations. While we have considered some potential uniform provisions, we do not believe that statutory intervention is warranted, for a number of reasons:

1. Mediation is context-specific, and what is appropriate in one context does not necessarily suit another. 

2. It is a fundamental precept of voluntary (as opposed to court-ordered) mediation that the parties are in control of the process, and can decide on the terms and arrangements for mediation – including the mediator’s rights and immunities. 

3. Any generic provision would require a common approach to what is mediation and who is an eligible mediator. Having regard to the diverse contexts for mediation, we have not reached any degree of consensus among stakeholders on these matters. 

4. The existing law of without prejudice privilege provides a sufficient default provision for the confidentiality and admissibility of mediation communications, where the mediation agreement does not otherwise provide. 

5. There is no particular reason for affording an agreement that results from mediation any greater status than one that results from any other process of negotiation. 

6. On balance, suspending limitation periods pending mediation would create more problems and controversies than leaving limitation periods to run, and would tend to promote delay. 

7. No sufficient harm has been identified as arising from the current diverse arrangements to warrant the imposition of a uniform statutory regime. 

We have therefore concluded that there would be no sufficient benefit gained from adopting the model provisions we proposed in CP 18. The best course is to leave the existing statutory provisions unchanged and allow them to develop as the need arises. 

Cases of potential and actual confusion among users of dispute resolution services may be resolved by providing better information about processes and encouraging better communication between parties and dispute resolution service providers. Such approaches do not need to be the subject of recommendations for law reform.

Mediation

Last month the NSW Law Reform Commission released its Consultation Paper 18 - Dispute resolution: Model provisions. The paper reflects 2013 Terms of Reference aimed at improving legislative provisions dealing with alternative dispute resolution, in particular recommendations regarding 'a consistent model or models for dispute resolution in statutory contexts, including court ordered mediation and alternative dispute resolution'(excluding dispute resolution under the Commercial Arbitration Act 2010 (NSW) or Industrial Relations Act 1996 (NSW).)

The Commission comments

Alternative dispute resolution (“ADR”) is generally regarded as providing many benefits for disputing parties, especially in reducing costs and delays as compared with litigation. Our terms of reference require us to consider improving or updating the legislative provisions dealing with ADR and to consider the possibility of recommending a consistent model or models for ADR. ... 

In undertaking this review the Commission should have regard to:

• the desirability of just, quick and cheap resolution of disputes through use of mediation and other forms of dispute resolution in appropriate contexts 

• issues of referral powers (including timing of referrals), confidentiality, status of agreements reached, and proper protections required for the parties, mediators, and others involved in dispute resolution 

•  the proper role for legislation, contract and other legal frameworks in establishing frameworks for dispute resolution  

• any related matters the Commission considers appropriate. ...

ADR can provide many benefits for disputing parties. It can reduce the costs and delays associated with litigation and facilitate flexible outcomes. In the context of litigation, ADR can keep disputes private (instead of being exposed in public hearings) and can ensure cases are managed effectively, for example, by narrowing the issues in dispute. It can also assist the parties in preserving, repairing or improving ongoing relationships. 

[We] sought submissions on a variety of ADR processes in NSW statutes. Mediation emerged from this as the focal point of stakeholder discussion. Mediation and quasi-mediation processes in NSW statutes vary in detail and coverage and are often inconsistent. This patchwork contributes to uncertainty among users. In particular, it is sometimes unclear exactly what types of dispute resolution are available and what safeguards apply in particular statutory contexts. Further, there are currently no provisions that protect parties during commercial/consensual mediation outside a judicial or statutory context. 

Despite the patchwork nature of the statutory provisions in NSW, we are not persuaded that there would be significant benefit in attempting to rationalise these provisions into one or a small number of models. Rather we see a benefit in developing model provisions that would apply to mediations taking place outside any statutory or judicial context, unless their application was excluded.

The Commission accordingly recommends model provisions, that in summary are -

Model provision 1: Definitions of accredited mediator and mediation (page 5) 

“Accredited mediator” means a person who is accredited by a Recognised Mediator Accreditation Body in accordance with the National Mediator Accreditation System. “Mediation” means a process in which the parties to a dispute, with the assistance of a third party dispute resolution practitioner (the mediator), come together in an endeavour to resolve their dispute. It includes a process that fits this description even when such a process is described as “conciliation” or “neutral evaluation”. 

Model Provision 2: Confidentiality and admissibility of mediation communications in evidence 

(1) Definitions “Mediation communication” means (a) anything said or done (b) any document prepared, or (c) any information provided, for the purposes of mediation, in the course of mediation, or to follow up mediation including any invitation to mediate or any mediation agreement. “Tribunal” means a tribunal established under statute and includes both administrative and arbitral tribunals. 

(2) Confidentiality of mediation communications

(a) A person must not disclose a mediation communication except as provided for by Model Provision 2(2)(b) or (2)(c). 

(b) A person may disclose a mediation communication if: (i) all the parties to the mediation consent and, if the information relates to the mediator, the mediator agrees to the disclosure (ii) the disclosed information is publicly available, but is not information that is only in the public domain due to an unauthorised disclosure by that person (iii) the disclosure is made for the purpose of seeking legal advice (iv) the disclosure is required for the purposes of carrying out or enforcing a settlement agreement (v) the disclosure is required to bring a claim for mediator misconduct or to respond to such a claim (vi) the disclosure is made for research, evaluation, or educational purposes and is made without revealing, or being likely to reveal, whether directly or indirectly, the identity of any party, mediator, or other person involved in the conduct of the mediation (vii) the disclosure is required by law, or  (viii)the disclosure is required to protect the health or safety of any person. 

(c) A person may disclose a mediation communication with leave of the court or tribunal under Model Provision 2(4). 

(3) Admissibility of mediation communications in evidence A court or tribunal may admit a mediation communication in evidence in any proceedings (including judicial, arbitral, administrative or disciplinary proceedings) only by leave under Model Provision 2(4). 

(4) Leave for disclosure or admission of evidence

(a) A court or tribunal may, on application by any person, grant leave for a mediation communication to be disclosed under Model Provision 2(2)(c) or admitted in evidence under Model Provision 2(3). 

(b) For the purposes of Model Provision 2(4)(a), the court or tribunal must take into account the following matters in deciding whether to grant leave: (i) whether the mediation communication may be or has been disclosed under Model Provision 2(2)(b) (ii) whether it is in the public interest or the interests of justice for the mediation communication to be disclosed or to be admitted in evidence, notwithstanding the general public interest in favour of preserving the confidentiality of mediation communications, and (iii) any other circumstances or matters that the court or tribunal considers relevant. 

(c) Where a person seeks disclosure of admission of the mediation communication in evidence: (i) before a court, the application must be made to the court before which the proceedings are heard (ii) before a tribunal, the application must be made to the tribunal before which proceedings are heard, and (iii) in any other case, the application must be made to NSW Civil and Administrative Tribunal. 

Model Provision 3: Mediator’s immunity (page 10) 

(1) No matter or thing done or omitted to be done by a mediator subjects the mediator to any personal action, liability, claim or demand if the matter or thing was done for the purposes of a mediation session under this Act. 

(2) Model Provision 3(1) does not apply if the claimant can show an absence of good faith on the mediator’s part. (3) This section is not intended to alter the operation of s 33 of the Civil Procedure Act 2005 (NSW) or cl 2 of sch 1 of the Civil and Administrative Tribunal Regulation 2013 (NSW). 

Model Provision 4: Termination of mediation (page 12) 

(1) Where the question of whether a mediation has been terminated arises in any proceedings, the court or tribunal must determine whether the mediation has been terminated. 

(2) Unless evidence to the contrary is adduced, the court or tribunal must presume a mediation has terminated if: (a) the mediator purports to terminate a mediation (b) a party purports to terminate a mediation (c) a time limit for the mediation (and any extensions) agreed by the parties expires, or (d) litigation commences or recommences. 

Model Provision 5: Enforcement of mediated settlement agreements (page 14) 

(1) “Mediated settlement agreement” means an agreement by some or all of the parties to mediation settling the whole, or part, of their dispute. 

(2) If a party to a mediated settlement agreement fails to comply with its terms, another party wishing to enforce the agreement may, on notice to all other parties who signed the agreement, apply to the Court for orders to give effect to the agreement if:

(a) the agreement is reduced to writing and signed by the parties, and 

(b) the mediation was conducted by an accredited mediator, and 

(c) a party against whom the applicant seeks to enforce the settlement agreement has explicitly consented to such enforcement, whether by the terms of the agreement or other means. 

(3) The mediator must draw the attention of the parties to the effect of Model Provision 5(2) before the mediated settlement agreement is signed. 

(4) The Court may refuse to give orders under Model Provision 5(2) only:

(a) at the request of the party against whom it is invoked, if that party furnishes to the Court proof that the agreement is void or voidable on grounds of incapacity, fraud, misrepresentation, duress, coercion, mistake or other invalidating cause, including that the agreement is void or voidable after a court has found it is unjust in the circumstances relating to the contract at the time it was made under the Contracts Review Act 1980 (NSW), or 

(b) if the Court finds that: (i) any of the terms of the agreement cannot be enforced as an order of the Court, or (ii) making the order would be contrary to public policy, or (iii) the mediator failed to draw the parties’ attention to the binding nature of the agreement before it was signed. 

(5) Any undertaking by one or more of the parties to a mediated settlement agreement to pay the fees and expenses of the mediator is enforceable if: (a) the amount of such fees, or (b) the means for their calculation, is specified in the agreement. 

As proposal 1 (Removal of statutory defamation privilege) the Commission recommends'

Provisions establishing a defence of absolute privilege to defamation proceedings arising from the conduct of mediations should be repealed.

Under  Implementation options the paper states

Option 1: Application to mediation under an agreement (page 19) 

This Act applies to any mediation conducted under an agreement to mediate entered into after the commencement of this Act if the mediator is an accredited mediator and: (a) the mediation is wholly or partly conducted in NSW, or (b) the agreement to mediate provides that the law of NSW is to apply to the mediation, unless the parties exclude or have excluded the operation of the Act or any provision of the Act, by agreement. 

Option 2: Application in existing and future statutes (page 20) 

The model provisions should be: (a) inserted in terms or by reference into each of the statutes that in our view would benefit from the provisions listed in Appendix A, and (b) used as a template for future legislation providing for mediation, unless the circumstances otherwise require. 

In discussing confidentiality the Commission comments

2.9 Submissions support a uniform approach to confidentiality and admissibility of mediation information in evidence. This approach should apply unless the context dictates otherwise. A strong regime in this area is essential to allay parties’ concerns that information disclosed during mediation might be used in subsequent litigation or disclosed to the public if the mediation proves unsuccessful. Although the common law provides some degree of protection, a legislative regime would provide additional certainty, allowing courts to protect information appropriately and quickly. For example, in accordance with the Mediation Ordinance 2012 (Hong Kong), the High Court of the Hong Kong Special Administrative Region struck out a defence and passages of affidavits that were based on information obtained in mediation. 

The model provisions draw upon aspects of the Mediation Bill 2016 (Singapore), the Mediation Ordinance 2012 (Hong Kong) and the Commercial Mediation Act 2010 (Ontario). Submissions identified these as appropriate models. The provisions also align with provisions in the UNCITRAL Model Law, and with the exceptions to confidentiality and inadmissibility recently expounded by the UK Supreme Court. NADRAC has recommended a similar general rule about confidentiality and privilege subject to specified exceptions. 

We propose that confidentiality and admissibility be dealt with together, with courts and the NSW Civil and Administrative Tribunal (“NCAT”) placed in a supervisory role under Model Provision 2(4). This reduces procedural complexity and clarifies the relationship between confidentiality and “without prejudice” privilege by integrating both protections into the one regime. The provisions encourage regularity by imposing a default position against admissibility, subject to the aggrieved party being able to justify why the default position should not apply under Model Provision 2(4)(a). 

The factors in Model Provision 2(4)(b) that the courts or NCAT must consider are broadly similar to those imposed by s 138 of the Evidence Act 1995 (NSW) with respect to the admission of illegally or improperly obtained evidence. A number of submissions supported introducing a provision like Model Provision 2(4)(b)(ii), which relates to the public interest. An example of the other circumstances or matters referred to in Model Provision 2(4)(b)(iii) is where there is no concluded settlement but one party to the negotiations has made a clear statement, intending the other party to act on it and the other party has in fact acted, giving rise to an estoppel. 

The exceptions to confidentiality in the recommended provision are broadly consistent with those provided by s 131 of the Evidence Act 1995 (NSW) that exclude evidence of settlement negotiations. Section 131 prevents evidence from being introduced if it concerns communications between disputing parties. This applies in the context of legal proceedings and is not likely to operate where formal legal proceedings have not yet been instituted. The model provisions would expressly extend this protection beyond the litigation context. This supports the role of mediation as a dispute resolution option in its own right.

Comments on the removal of the defamation privilege are

A defence of absolute privilege to defamation proceedings arising from mediations was first introduced by the Community Justice Centres pilot project in 1980. The co-ordinating committee thought it likely that mediations might involve “a heated exchange of views, accusations and abuse” and considered it desirable to protect the parties to a mediation from possible suits for defamation. Along with subsequent provisions based upon it,, this privilege has never been tested. Similarly, there is no known evidence to support the claim made when justifying its insertion into the Land and Environment Court Act 1979 (NSW) in 2007 that “without the protection afforded by [defamation privilege], parties involved in a [mediation] might be less frank and less willing to make concessions to settle a dispute”. 

However, given that mediation communications are inadmissible, purportedly defamatory statements made in the course of mediation will be inadmissible in any attempt to prosecute a defamation claim, unless one of the proposed exceptions applies. Likewise, as mediation communications are confidential and thus cannot “leave the room”, the risk of damage from any purportedly defamatory statement is limited. The good faith immunity provided to mediators also protects them against liability for defamation. 

An express statutory privilege against defamation is, therefore, superfluous. The absence of defamation privilege in any international mediation legislation supports this conclusion. We therefore propose that NSW repeal provisions that establish a defence of absolute privilege to defamation claims. Such a privilege should not be included in any generally applicable statute on mediation.

Privacy ADR

The Privacy Amendment (2015 Measures No. 1) Regulation 2015 Cth) amends the Privacy Regulation 2013 to make the current temporary exemption from the external dispute resolution (EDR) membership obligation for commercial credit providers ongoing.

It also extends to 1 January 2016 the temporary exemption from the EDR membership obligation for utilities in the ACT, the Northern Territory, Queensland, South Australia and Tasmania.

Legal Teaching

Recommendation 7.1 in the Productivity Commission Access To Justice report noted here is that -

The Law, Crime and Community Safety Council, in consultation with universities and the professions, should conduct a systemic review of the current status of the three stages of legal education (university, practical legal training and continuing professional development).

The review should commence in 2015 and consider the:

• appropriate role of, and overall balance between, each of the three stages of legal education and training 

• ongoing need for each of the core areas of knowledge in law degrees, as currently specified in the 11 Academic Requirements for Admission, and their relevance to legal practice 

• best way to incorporate the full range of legal dispute resolution options, including non adversarial and non court options, and the ability to match the most appropriate resolution option to the dispute type and characteristics into one (or more) of the stages of legal education 

• relative merits of increased clinical legal education at the university or practical training stages of education 

• regulatory oversight for each stage, including the nature of tasks that could appropriately be conducted by individuals who have completed each stage of education, and any potential to consolidate roles in regulating admission, practising certificates and continuing professional development.

Consideration should be given to the Western Australian and Victorian models in this regard. The Law, Crime and Community Safety Council should consider the recommendations of the review in time to enable implementation of outcomes by the commencement of the 2017 academic year.

The recommendation reflects the Commission's conclusion that -

An efficient and responsive legal profession improves access to justice.

There are several elements that affect the quality of, and competition in, legal services markets — the education and training of lawyers, their entry into the profession, and the regulation of the profession itself.

The education and training of law students influences the future legal profession. – Despite concerns about a potential oversupply of graduates, there is no policy rationale in the legal market — beyond ensuring baseline quality standards — for restricting numbers. – While there are examples of leading practices in various institutions, a systemic review of the legal education system is overdue. More emphasis should be placed on skills, rather than accumulating knowledge. The systemic review should examine:

• the need for each of the current 11 Academic Requirements 

• including alternative dispute resolution as a required area of study 

• practical training, including pro bono placements, interpersonal skills and business management courses 

• the necessity, role and conduct of separate admission and practising certificate requirements.

More radical changes in legal education would only be effective if coupled with reforms to the profession. – Building on existing examples, ‘limited licences’ should be implemented to allow appropriately qualified professionals to perform select tasks in particular areas that are currently the exclusive domain of lawyers.

Specific advertising restrictions appear unnecessary given broader economywide regulation and general legal professional standards of conduct.

While restrictions on professional indemnity insurance can be justified on consumer protection grounds, they should be subject to periodic independent review to ensure they remain a targeted and proportionate response to the problem.

Implementation of the National Legal Profession Reform, which was initiated in 2009, has been stymied by jurisdictional differences. – Progress made by Victoria and New South Wales provides other jurisdictions with a ‘preview’ of the benefits of reforms. Further gains depend on evaluation of these reforms.

NZ Mediation

'Towards a History of Mediation in New Zealand's Legal System' by Grant Hamilton Morris in (2013) 24 Australasian Dispute Resolution Journal 86-101 comments

The history of mediation in New Zealand reflects a number of influences and developments. While prototypes of mediation can be found in New Zealand’s early industrial relations, the modern mediation movement is primarily a result of state-led reform in a variety of legal areas. Much of this reform has been influenced by overseas models emphasising New Zealand’s role as a “fast-follower” of alternative dispute resolution trends rather than an initiator. The rise of mediation in New Zealand has been ad hoc and pragmatic with a distinct lack of systematic development. This pragmatic change was a response to pressures such as the cost and delay involved in litigation, and major social trends challenging traditional ways, including traditional approaches to resolving disputes. Mediation continues to play a vital role in the New Zealand legal system but the exponential growth of the 1980s and 1990s has slowed as mediation begins to clearly locate and confirm its “territory” in the New Zealand legal system.

Privacy ADR in Australia

The Office of the Australian Information Commissioner (OAIC) has announced its recognition of seven external dispute resolution (EDR) schemes under the amended Privacy Act 1988 (Cth).

Those schemes are

• Telecommunications Industry Ombudsman Ltd [TIO]
• Credit Ombudsman Service Ltd [COSL]
• Energy & Water Ombudsman (NSW) Ltd [EWON]
• Energy & Water Ombudsman (Victoria) Ltd [EWOV]
• Energy & Water Ombudsman Western Australia [EWOWA]
• Financial Ombudsman Service [FOS]
• Tolling Customer Ombudsman [TCO]

Under the Privacy Amendment (External Dispute Resolution Scheme - Transitional) Regulation 2014 a transitional 12 month exemption from the requirement to be a member of a recognised EDR scheme is in place for energy and water utilities and commercial credit providers wishing to access the credit reporting system.

COSL has meanwhile announced that "having consulted with its various stakeholders, [it] is in the final stages of finalising its 9th Edition Rules" regarding privacy-related complaints. Pending release of that edition it is using interim Rules [PDF].

COSL states that

The Credit Ombudsman Service Limited (COSL) offers consumers an accessible, independent and fair external dispute resolution (EDR) service, approved by the Australian Securities and Investments Commission (ASIC). COSL has almost 17,000 participating financial services providers (FSPs) who operate in a variety of financial service sectors. Participants of the scheme include credit unions, building societies, non-bank lenders, mortgage and finance brokers, financial planners, investment managers, debt services and a wide range of other financial services and product providers.

The aim of the organisation is to provide consumers with a free and impartial dispute resolution service as an alternative to legal proceedings for resolving complaints with their financial services and product providers.

We provide a free, independent and impartial dispute resolution service. We facilitate the resolution of complaints between consumers and participants of our scheme. In doing so, we provide both consumers and financial services providers with an alternative to legal proceedings for resolving financial services disputes.

We are not government-funded, nor do we regulate the financial services industry or discipline participants of our scheme.

We are required to meet certain benchmarks prescribed by the Australian Securities and Investments Commission (ASIC) and have been approved by ASIC to operate as an external dispute resolution (EDR) scheme in the financial services industry.

Participants of our scheme include non-bank lenders, finance brokers, credit unions, building societies, debt collection firms, financial planners, trustees, servicers, aggregators, mortgage managers, and many more.

Disputes

''Cut the Dog in Half': Resolving Animal Law Disputes Through the Use of Alternative Dispute Resolution' by Michael Kaiser in (2014) 15 Cardozo Journal of Conflict Resolution 515 comments

The discipline of animal law continues to grow. Consequently, the need for methods to resolve conflicts in this arena also continues to grow. In this article, Michael Kaiser addresses mediating custody disputes involving animals, mediating disputes involving laboratory testing of animals, and mediating disputes involving allegations of veterinary malpractice. In all three sections Mr. Kaiser outlines methodologies to address, and practical solutions to, these conflicts, eschewing more absolutist positions and arguments. Mr. Kaiser demonstrates that when approached properly, all sides have something to gain from the use of alternative dispute resolution to address animal law conflicts.

Credit ADR

The Privacy Amendment (External Dispute Resolution Scheme - Transitional) Regulation 2014 amends the Privacy Regulation 2013 to provide a temporary 12 month exemption from the external dispute resolution requirement under subparagraph 21D(2)(a)(i) of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) for utilities and commercial credit providers.

ADR

'Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations' by Thomas Stipanowich &  J. Ryan Lamare in (2013) Harvard Negotiation Law Review (Forthcoming) comments that

 As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including

• a further shift in corporate orientation away from litigation and toward “alternative dispute resolution (ADR),” 

• moderated expectations of ADR; 

• increasing use of mediation, contrasted with a dramatic fall-off in arbitration (except, importantly, consumer and products liability cases); 

• greater control over the selection of third-party neutrals; 

• growing emphasis on proactive approaches such as early neutral evaluation, early case assessment, and integrated systems for managing employment disputes.

This article summarizes and analyzes the results of the 2011 Fortune 1,000 survey, compares current data to the 1997 results, and sets both studies against the background of a half-century of evolution. The article concludes with reflections on the future of corporate dispute resolution and conflict management and related research questions.

The authors note that

The present survey raises an assortment of considerations for future research, including subjects to be developed and studied. 

As a preliminary matter, it is time to acknowledge the shortcomings of the term “ADR,” a catch-all concept comprising the entire range of diverse alternatives to court trial. While it may be useful as a term of convenience in discussions of conflict management, its utility in research into the dynamics of public and private dispute resolution is inversely related to the very breadth and variety of the approaches it embraces. Wherever possible, queries about attitudes toward “ADR” should give way to more specifically tailored questions. 

Broad-based surveys like the present one and its 1997 precursor are useful in helping to identify broad trends and alert us to key “tipping points” such as the recent reduced emphasis on arbitration. They are, however, not designed to provide meaningful insights into the dynamics of individual dispute resolution processes or of conflict management systems; instead, they offer a springboard for research on these issues. The latter include (1) the priorities and expectations of business clients and other parties regarding dispute resolution and conflict management; (2) the performance and effectiveness of multi-step dispute resolution approaches, or of conflict management systems; (3) the dynamics of mediation processes, including mediator styles and strategies and the interplay between mediators and advocates; (4) arbitrator styles and strategies in pre-hearing and hearing management, deliberating and rendering awards; and (5) the impact of neutral experience, education and professional background.

ACPA v UDRP

'What is in a Name?' A Comparative Look at the ICANN Uniform Domain Name Dispute Resolution Policy and the United States Anti-Cybersquatting Consumer Protection Act' by Terrence Fernbach is a 54 page Munich Intellectual Property Law Center (MIPLC) Master's Thesis.

Fernbach argues that

Since the establishment and rise of the Internet, there have been situations where others have tried to capitalize on the unique nature of domain names by registering domain names of popular trademarks and/or individuals’ names, and then turning around and selling these domain names to the owners of the trademark or to the individual. This action, known as “cybersquatting”, has been the reason for the enactment of multiple dispute resolution systems by both governments and private institutions. Further, the amount of cybersquatting cases has increased over the years, with the World Intellectual Property Organization reporting increases in cybersquatting cases over the past few years.

This thesis is designed to be more of a practical guide for an American attorney who is faced with domain name dispute case. As a result, this thesis will focus on the International Corporation for Assigned Names and Numbers’ (ICANN) Dispute Resolution Policy, and the Anti-Cybersquatting Consumer Protection Act (ACPA). This thesis will provide three different hypothetical scenarios that may arise in domain name disputes: where two parties have the same name, or where an individual in engaging in a form of cybersquatting, or where a group has created a website for the purposes of criticizing a corporation. This thesis will also highlight the advantages and disadvantages of the ICANN procedures as laid out in the Uniform Domain Name Dispute Resolution Policy (UDRP) and the procedures available under United States federal law as laid out in the ACPA, and discuss legal strategies and probable outcomes for the three different hypothetical scenarios. Finally, this thesis will conclude that while ICANN’s Dispute Resolution Policy has some disadvantages when compared to the ACPA, it is the better dispute resolution option to use for most cybersquatting activities due to its relative speed, efficiency and lower cost, but the Lanham Act provisions as outlined by the ACPA are better suited for those cases where the client wishes for more remedies than just the transfer or the cancellation of the disputed domain name.

 In discussing ACPA he comments that

There are a few advantages in using the ACPA. First, the ACPA is a good method to use in trying to acquire an infringing domain name from a foreign cybersquatter. This is because of the ACPA’s in rem provisions, and the ACPA does not have the same burdens of proof that are found in the UDRP. However, it is important to note that the in rem provisions only apply if the disputed domain name was registered with a registrar or other domain name authority that is located within the United States.

Second, the ACPA also allows for monetary damages, statutory damages and injunctive relief, in addition to the same remedies available under the UDRP. This gives a wide array of remedies available to a plaintiff, most of which are unavailable by the UDRP. Also, the ACPA has the same remedies at its disposal as the UDRP, so the plaintiff can still seek the same relief that would be afforded by the UDRP while also seeking other remedies.

Third, unlike the UDRP, the parties can freely engage in discovery. This allows the plaintiff to access information regarding prior registrations done by the defendant, if any, and to access other information that could help establish the bad faith aspects of the plaintiff’s claim. Also, since this is a federal court action and not an arbitration panel, the parties can attack the credibility of each other’s testimony. This can not happen in the UDRP proceedings, which has the potential of becoming a sort of “I said – he said” situation, with both parties stating their respective submissions are accurate to the best of their knowledge.

Fourth, under the ACPA, the plaintiff can also seek damages from the domain name registrar, provided the plaintiff can prove the registrar acted with bad faith to profit from the registration and maintenance of the infringing domain name. While the UDRP does not have any liability provisions for domain name registrars, the ACPA, through its safe harbor provisions, only waives a registrar’s liability if they act in due diligence and in good faith. This provision allows a plaintiff a cause of action against domain name registrars who basically aid in cybersquatting. Combined with the in rem provisions of the ACPA, the plaintiff can get a cause of action against the domain name itself and, if applicable, get monetary damages from the domain name registrar.

Finally, unlike the ICANN arbitration panels, the federal courts are better suited to handle more complex litigation issues, such as affirmative defenses of acquiescence and fair use. Also, false advertising and unfair competition claims are outside the realm of the UDRP arbitrators. Meanwhile, these issues can be dealt with fairly in the federal courts. As a result, if a plaintiff would have a more complex domain name dispute issue, they would probably be better off using the ACPA instead of the UDRP.

Disadvantages of the ACPA

While there are benefits in using the ACPA for a domain name dispute, there are some disadvantages as well. First, federal litigation is not very fast. In fact, it may take months or even years to finally get a case resolved in federal court. This is not a great option for the plaintiff who wants to quickly get a domain name from the registrant/defendant.

Second, federal litigation is expensive. While arbitration under the UDRP may cost around the mid four-figure range, including agency and arbitration panel fees and attorney’s fees, federal litigation will cost a lot more, and could range in the tens of thousands of dollars at least. Considering the usual remedies involved in a domain name dispute, the plaintiff in an ACPA action might end up winning a Pyrrhic victory, spending a huge sum of money for what could have been achieved, at a much lower cost, using an arbitration proceeding under the UDRP.

Third, while the in rem provisions seem like an advantage, it may not prove to be much of an advantage when compared to the UDRP. In the ACPA, the plaintiff can get in rem jurisdiction only if the applicable domain name registrar is within a federal judicial district. On the other hand, the UDRP Policy applies to any domain name registrar that has agreed to be bound by the UDRP Policy. This gives the complainant an opportunity to get relief under the UDRP with a foreign domain name registrant as opposed to the in rem provisions of the ACPA, since the UDRP Policy can apply to domain name registries and registrars outside of the United States, which the ACPA only applies to American registries and registrars. Considering the remedies are the same for these two different provisions, it might be a better option for a plaintiff to use the UDRP Policy instead of the ACPA. Fourth, as eluded to earlier, federal judges may not necessarily be experts in trademark law. It is quite possible that a federal litigation using the ACPA may be presided over by a judge with no real experience in trademark law or with domain name issues. While having a case presided over by a judge who is unfamiliar with the nuances of the legal issues behind the case is a potential problem with any federal litigation, it could be a problem in a domain name dispute case, especially when dealing with concepts such as parody and fair use.

Just like the UDRP, the ACPA has a series of advantages and disadvantages that will require the plaintiff to consider whether they want to use the ACPA or use the cheaper and faster UDRP arbitration proceedings.

DNS Disputes

'The Evolution of Precedent in Mandatory Arbitration - Lessons from a Decade of Domain Name Dispute Resolutions' by Andrew Christie & Fiona Rotstein in (2011) 30(1) The Arbitrator & Mediator 65-74 notes that -

In just over a decade, the international system for mandatory arbitration of domain name disputes has disposed of more than 30,000 disputes, between parties from more than 150 countries, in short timeframes and at low cost. Despite the absence of an appellate body and a doctrine of stare decisis, the system has evolved a comprehensive and largely noncontroversial body of precedent, that provides clear guidance to parties on most of the legal and procedural issues involved in a domain name dispute. This paper explores both why and how, exactly, such a sophisticated precedential system has evolved voluntary, and identifies the lessons that may be drawn from this experience for other arbitration systems.

The authors conclude that -

The implementation of the doctrine of precedent in the curial system of dispute resolution requires three features: published past decisions, a rule requiring decision-makers to follow past decisions, and an appellate body to enforce the rule. Neither traditional arbitration nor non-traditional arbitration exhibits all three features. At most, only the first feature is present in arbitration systems. Nevertheless, it is undeniable that some non-traditional arbitration systems have evolved into de facto precedential systems. The UDRP, the mandatory arbitration system for resolving domain name disputes, is a paradigm of this.

What lessons can be drawn from the decade of experience of the UDRP about the relevance of precedent to arbitration generally? It is argued that two key lessons can be identified. The first lesson is that arbitrators, for wholly rational reasons, will desire to obtain the outcomes of a precedential system. That is, arbitrators rationally desire to operate a system that is transparently fair to the parties, that is efficient for them as decision-markers, and that maintains the integrity of the system. Consequently, arbitrators will voluntarily seek to comply with the principle of stare decisis, even when there is no formal requirement to do so let alone a mechanism to enforce such compliance.

The second lesson is that arbitral service providers have a critical role to play in enabling arbitrators to achieve this outcome. While publishing arbitral awards is a necessary condition for a de facto precedential system, it is most likely not a sufficient condition – at least when there is a substantial body of awards to form the corpus of precedents. Once the body of awards becomes unmanageably large such that no individual could realistically expect to read and understand all the awards, it will be necessary for arbitral service providers to produce value-added resources for accessing the jurisprudence of the body of awards. Ultimately, it may be necessary for the service provider to produce an ‘informal’ codification of that jurisprudence.

Deathmarks and ADR

The Commonwealth Attorney-General's Department has released a set of documents regarding the Philip Morris Asia challenge to the Tobacco Plain Packaging Act 2011 (Cth) that received Royal Assent and became law in Australia on 1 December 2011. As noted in previous posts in this blog, the Act restricts use of tobacco company trade marks in retail packaging of tobacco products but does not extinguish the trade marks ... in essence the Marlboro Man and other signifiers can still ride, just not very freely.

Philip Morris Asia is challenging the Australian regime, which the Government has justified on public health grounds and as consistent with international health obligations under the WHO Framework Convention on Tobacco Control. The challenge is based on what Philip Morris argues is a breach of the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. That bilateral agreement features scope for dispute resolution by an international tribunal, with arbitration being conducted under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2010.

Just before Christmas the Government provided its Response to Philip Morris Asia’s Notice of Arbitration. The Government states that -

As the proceedings brought by Phillip Morris Asia concern the Government’s right to take regulatory measures to protect public health, it is important that the public have access to information relating to the proceedings. The Government is committed to achieving transparency in these proceedings.

The A-G's website accordingly features a copy of the Australia - Hong Kong Bilateral Investment Treaty [PDF], the Philip Morris Asia Limited Notice of Claim [PDF] and November 2011 Notice of Arbitration [PDF], and the Australian Response to the Notice of Arbitration [PDF].

The latter states that -

PM Asia is incorporated in Hong Kong and asserts that the plain packaging measure impacts on investments that PM Asia owns or controls in Australia, namely its shares in Philip Morris Australia Limited (“PM Australia”), the shares that are held by PM Australia in Philip Morris Limited (“PML”), and the intellectual property and goodwill of PML. PM Asia acquired its shareholding in PM Australia (and hence a purported indirect interest in the shares and assets of PML) only on 23 February 2011.

This recent acquisition was made by PM Asia against the backdrop of:

a) the Australian Government’s long-standing regulation and control of the manufacture and sale of tobacco in Australia, and its ratification of the World Health Organization (“WHO”) Framework Convention on Tobacco Control (“FCTC”);

b) the Australian Government’s establishment of a National Preventative Health Taskforce (“Taskforce”) in April 2008 to consider how to reduce harm from tobacco usage, which led to the Taskforce considering the impacts of packaging on tobacco usage, engaging in a consultation exercise in which PML participated and, ultimately, recommending in June 2009 that the Australian Government mandate the sale of cigarettes in plain packaging and increase the required size of graphic health warnings;

c) the Australian Government’s announcement, on 29 April 2010, of its decision to implement plain packaging and to mandate updated and larger graphic health warnings for all tobacco products; and

d) continuing objections or public complaints on the part of PM Australia, PML and also Philip Morris International Inc. (the ultimate holding company for the Philip Morris group) – in the course of the remainder of 2010 and early 2011 – to the effect that the plain packaging legislation would breach Australia’s international trade and treaty obligations.

Thus, PM Asia acquired its shares in PM Australia on 23 February 2011, both in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging, and also in circumstances where various other members of the Philip Morris group had repeatedly made clear their objections to the plain packaging legislation, whereas such objections had not been accepted by the Australian Government.

It continues -

Against this backdrop, PM Asia’s claims under the BIT inevitably fail, both as to jurisdiction and the merits:

a) Article 10 of the BIT does not confer jurisdiction on an arbitral tribunal to determine pre-existing disputes that have been re-packaged as BIT claims many months after the relevant governmental measure has been announced.

b) The plain packaging legislation cannot be regarded as a breach of any of the substantive protections under the BIT. PM Asia made a decision to acquire shares in PM Australia in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging. An investor cannot make out a claim for breach of (say) the fair and equitable treatment standard or of expropriation in circumstances where (i) a host State has announced that it is going to take certain regulatory measures in protection of public health, (ii) the prospective investor – fully advised of the relevant facts – then acquires some form of an interest in the object of the regulatory measures, and (iii) the host State then acts in the way it has said it is going to act.

The Government offers a number of preliminary observations before contesting specific claims by Philip Morris. Those observations are -

First, the Australian Government is implementing plain packaging to protect the public health of Australia’s population from an addictive and dangerous substance that causes widespread death and disease in Australia (and around the world). The protection of public health is an objective of fundamental importance to all Governments, and the WHO and the FCTC Secretariat have indicated their strong support for plain packaging as an effective public health measure.

Secondly, the Australian Government’s plain packaging initiatives are based on a broad range of studies and reports, and supported by leading Australian and international public health experts. The evidence demonstrates that use of logos, symbols, designs, colours and other forms of advertising on tobacco packaging increases attractiveness to consumers, can mislead consumers into thinking some tobacco products are safer than others, and also decreases the prominence and effectiveness of health warnings. Tobacco advertising can be particularly effective on young people, the age group most likely to become addicted to smoking.

Thirdly, in so far as PM Asia contends that plain packaging measures will lead to a decline in cigarette prices (and hence increased consumption) and to an increase of market participation in illicit tobacco products (cf Notice of Arbitration, para. 6.3), those contentions are not accepted. Further, even if correct, the Australian Government has power to implement a range of measures, including further increases to the rate of excise, to ensure that cigarette prices do not fall to a level which would lead to an increase in consumption. In addition, the Australian Government will continue to vigorously enforce its laws against illicit trade in tobacco.

Fourthly, plain packaging is not an alternative to other tobacco control measures but is an integral part of the comprehensive suite of measures adopted by Australia to respond to the public health problems caused by tobacco. These measures ... are based on the comprehensive tobacco control strategy recommended by the Taskforce in 2009. The implementation of this wide-ranging set of measures will be critical to achieving significant reductions in smoking rates in Australia.

Fifthly, PM Asia claims at various junctures in its Notice of Arbitration that plain packaging eliminates branding. PML will however retain the ability to place brand names, including any variant, on tobacco packaging. Plain packaging does not prevent product differentiation or identification of a product’s place of origin on its packaging (cf. Notice of Arbitration, para. 1.4).

What the plain packaging measure in fact restricts is the ability of tobacco companies to advertise their products by packaging them with attractive branding and other designs. This is the real substance of PM Asia’s concern. By preventing such advertising on retail tobacco packaging, as one of the principal remaining means for PML and other tobacco companies to advertise tobacco, the Australian Government intends that plain packaging will contribute to efforts to reduce smoking rates in Australia.

In contesting the tobacco giant's claim of expropriation the Government states that -

The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.

PM Asia has not in fact been deprived of the purported investments it made on 23 February 2011; nor has PM Asia been subjected to measures having equivalent effect.

Further, plain packaging measures are non-discriminatory regulatory actions of general application designed and adopted by the Australian Government to achieve the most fundamental public welfare objective – the protection of public health. Such measures do not amount to expropriation, are not equivalent to expropriation, and do not give rise to a duty of compensation.

After arguing that there has been no discriminatory action, the Government requests the arbitral tribunal -

a) to declare that it has no jurisdiction over PM Asia’s claims, or that they are inadmissible;
b) alternatively, to dismiss PM Asia’s claims in their entirety; and
c) to order that PM Asia bear the costs of the arbitration, including Australia’s costs of legal representation and assistance, pursuant to Article 42 of the UNCITRAL Arbitration Rules.

In essence, it is arguable that PM Asia - knowing that restrictions on packaging were in the pipeline - acquired the Australian interests in order to take action under the BIT and with an awareness that the value of interests would be eroded by the restrictions. The tribunal might be unimpressed by PM Asia's claim for compensation regarding assets with a value that was presumably going to be reduced by “billions of Australian dollars”. Article 6 of the BIT specifies that compensation reflects “the real value of the investment immediately before the deprivation or before the impending deprivation became public knowledge whichever is the earlier”. Given that PM Asia acquired the interests after the impending deprivation became public knowledge (and arguably with the intention to thwart the restrictions) it would appear to have no interest at the relevant time.

ADR

The federal Attorney-General, Robert McClelland, has launched The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, a report by the National Alternative Dispute Resolution Advisory Council (NADRAC) on alternative dispute resolution (ADR) in the civil justice system. Resolve to Resolve, rather cruelly dubbed by one contact as 'promise to promise', complements the Commonwealth Access to Justice Strategy report noted recently.

NADRAC was asked last year to report on

strategies to remove barriers and provide incentives to promote the greater use of appropriate dispute resolution options as an alternative to formal litigation.

Its Resolve to Resolve report finds that ADR "remains significantly underutilised", with the key barrier being "a lack of knowledge and understanding" among the legal profession, litigants and general public.

The 39 recommendations include

* imposing a legislative obligation on prospective litigants to seek to resolve disputes before they go to court;
* developing a National ADR Protocol to promote consistent application of ADR principles and processes;
* developing a standards framework to improve the quality of ADR services;
* requiring lawyers and courts to provide appropriate information or advice to consumers regarding ADR processes;
* developing judicial case management courses focussing on ways in which judges can identify matters suitable for ADR;
* supporting development of strong community and private ADR services;
* providing a model dispute resolution clause as a template that may be voluntarily adopted in contracts;
* requiring Commonwealth agencies to include dispute resolution clauses in contracts; and
* improving data collection, evaluation and research to inform an evidence-based policy approach.

The report suggests obligations could appropriately be placed on legal practitioners and litigants, with the former for example being required to inform clients about

* the requirement to take genuine steps to resolve a dispute before commencing court/tribunal proceedings;
* private and community based services that may help dispute resolution;
* the advantages of nonadversarial dispute resolution;
* likely costs for which the client may be liable if unsuccessful; and
* the likely timeframe for any legal proceedings.

Parties could be obliged to file a statement setting out that they

* have taken genuine steps to resolve their dispute before commencing proceedings;
* have considered services outside the court that may assist them to resolve their dispute;
* understand the benefits of various ADR processes; and
* have obtained advice about estimated costs, cost exposures and timeframes for the proposed proceedings.

It notes controversy regarding whether mediation should be mandated, with the Attorney-General referring to Remuneration Planning Corp Pty Ltd v Fitton; Fitton v Costello [2001] NWSC 1208 in which Justice Hamilton considered cases in which mediation was successful despite an initial absence of consent:

It has become plain that there are circumstances in which parties insist on taking the stance that they will not go to mediation, perhaps from a fear that to show a willingness to do so may appear a sign of weakness, yet engage in successful mediation when mediation is ordered.

The report notes the need for exemptions from compulsion through consideration of

rgency, undue prejudice, safety, security, the subject matter of the dispute, public interest factors, and whether the dispute is essentially the same as has been previously before the same court or tribunal.

The report might be read in conjunction with the more cautious and nuanced Non-Adversarial Justice (Federation Press, 2009) by Michael King, Arie Freiberg, Becky Batagol and Ross Hyams.