 Welcome back again, thank you all for joining us. In the last day and in the morning session this morning, I think one thing that we can extract is that business and human rights is a very diverse topic with a diversity of challenges, a diversity of actors, and as we started to discuss in the last panel as well, a diversity of solutions, which is sort of what this panel is based on. So our panel, for this moment in the training session, we've named nonjudicial mechanisms, international arbitration's effectiveness in providing redress in cases involving human rights violation. For this panel we have with us representative from an international organization, we have from academia, from actual arbitral practice, in mediation practice, we might potentially have our business representative joining us a bit later. So we'll hear from both of these interesting panels which I'll introduce shortly, but before we get into our speakers and get into a bit of more detail in considering and analyzing the appropriateness and effectiveness of certain remedies in creating access to justice for human rights that are nonjudicial. I want to explain a little bit what that means for those of you unfamiliar or maybe even for those of you who are just to outline some of the terminology we'll be using today. So one, you hear the terminology ADR oftentimes which is short for alternative dispute resolution which we've named instead of using the terminology ADR we've used the terminology nonjudicial mechanisms which effectively means what you can do to solve a conflict without going to court. And this can be a number of processes, could be something as simple as negotiation, facilitated communication, mediation, conciliation, civil complaint review boards, non-corporate, sorry, corporate grievance mechanisms or arbitration which will be a bit of our focus today. So arbitration is a creature of contract effectively unlike a court or a judicial process which is a creature of estate competence, arbitration is a creature of contract. So effectively there's a certain, a couple of advantages and why this practice emerge. The name advantages, namely particularly in the context in an international context is that it provides a neutral forum. You avoid having to choose one particular home state court. Another noted advantage is you choose your adjudicators. Arbitrators are party appointed, another huge advantage. In its origin, it was considered a fast and an economical choice that's beginning to change more and more today. But the point is that it provides one other option to parties that are choosing to resolve their disputes when there's a cross-border conflict. The question is, is in the area of human rights, does this present certain issues that maybe just go beyond effectiveness and speed issues as to the appropriateness of the use of the remedy in human rights and is there potential to use international arbitration more in the area of business and human rights? So we'll be discussing a bit of that today. So it's enough of our introduction. Now I'd like to hear more of people who work frontline experience who have very interesting perspectives. We'll start with Brooks Daley. Brooks is the deputy, who is to my right, is the deputy security general of the Permanent Court of Arbitration in The Hague. The PCA is an intergovernmental organization founded in 1899 for the peaceful settlement of disputes. Before joining the PCA, Brooks worked at the International Chamber of Commerce Court of Arbitration in Paris, and before that, practiced as a lawyer in London in Los Angeles, which is where he is from originally. So Brooks, welcome. Our presentation started. Catherine, thank you very much for having me today and that introduction to arbitration and what it is that allows me to move directly into what is my institution. I'll describe to you my institution, what we do, our experience with human rights issues, in the cases we deal with, generally, and human rights issues, the potential for arbitration with respect to human rights and business disputes. Although arbitration has become the dominant dispute resolution mechanism in international commerce, my institution was founded to help governments arbitrate disputes, to avoid going to war. In the 1890s, there was an arms race and a number of states thought that it would be worthwhile trying to develop methods for avoiding recourse to arms. They held a peace conference in The Hague. They discussed arms reductions. They also discussed a mechanism for resolving disputes without going to war. Arbitration, until that time, arbitration was used frequently by states, but each time they wanted to arbitrate, they had to set everything up from scratch. They had to negotiate where would the arbitration be held? How many arbitrators would they have? How would they appoint the arbitrators? What language would the proceedings be in? Creating an arbitral institution was designed to facilitate this process, to make it easier for states to go to arbitration instead of war. When things got tense, if you had a long negotiation necessary to go to arbitration, it might keep you from going to arbitration. You might end up going to war, even though you might have been willing to try arbitration. So they decided, let's create an arbitral institution and we won't create any obligation to use it. That's one of the great failures of 1899. The states didn't have to use it. They said, we'll create it. We'll use it when we want it, but we want to create any obligation on states to have recourse to it. Of course, we know they essentially failed because only a few years after the founding of the permanent court of arbitration, the First World War broke out. Ironically, this great temple to peace, the peace palace that you see in the picture was completed in 1913 to house the permanent court of arbitration. And so only a year later after this auspicious construction was completed, the Great War broke out. The peace palace is now better known as the home of the principal judicial organ of the United Nations, the International Court of Justice, but it remains the home of the PCA and then that's what it was originally built for. Now, what is this old institution? It still exists. It has three parts. There's an administrative council of member states. We now have 117 member states, a pretty broad membership. There are members of the court. Each member state can appoint four members of the court. These are really arbitrators. You don't have to use them in any specific case, but the idea was that by having a list of competent people available, it would make it easier for you to get a tribunal in place in the case of dispute arises, but you don't have to use this list of arbitrators. And the third part, the International Bureau is a fancy name for a secretariat of a court. It's a mixture of lawyers. It's where I work. It's headed by the secretary general who's appointed by member states for five years. It's lawyers and administrative staff who assist arbitrators, council and parties in assuring that their proceedings go smoothly. Where are the documents? Do you need a court reporter? Do you want to have a hearing in Hong Kong or Namibia? Wherever you want to have an arbitration, we can do it, not just the Hague. Now, how about a real case? Let's talk about things in practice. Let's talk about the ABA arbitration briefly. So you see what a real PC arbitration might look like. The Sudan People's Liberation Movement Slash Army was a political movement and armed group in the south of Sudan that had negotiated a peace treaty with the government of Sudan in 2005, the Comprehensive Peace Agreement that foresaw that the south would be allowed to have a vote and decide on whether it would become an independent state. One of the outstanding issues, though, before that vote was to take place was the status of the ABA area. First, this ABA area, which you can see on this map, there's a line directed to it. It's not the little gray part, but where you see ABA, there's a line pointing to it. It's just a little black dot, it's a small area, but it falls right on what was likely to be the border between the north and the south. Should the south become independent? Both the north and the south claimed the area and they agreed that a referendum could be held in that area about whether it would stay with the north in the case of independence or join the south. But first, they had to agree on what the borders of the ABA area were and they couldn't agree on the borders of the ABA area. And they had a number of failed attempts to solve this problem and their final attempt was to submit the question to arbitration at the Permanent Court of Arbitration. So they signed an arbitration agreement and they agreed, as you see here in this text, to refer their dispute to final and binding arbitration. So arbitration is a binding procedure. It's not negotiation, mediation, conciliation where the parties have to agree on the result. Arbitrators are given the power to make a final and binding decision on the dispute. They submitted it to the Permanent Court of Arbitration to be kind of conducted in accordance with the set of the PCA's procedural rules. We have a number of procedural rules. Some are designed for specific sectors, including the environment or disputes relating to outer space activities. This is one of the things that has got attention from people in business and human rights. Maybe there could be a set of rules specifically tailored for business and human rights. So the case began. The parties have pointed in arbitral tribunal. Usually arbitrations have one or three arbitrators. In a large, complex case, from time to time, particularly in interstate disputes, they'll point five arbitrators. Each party appointed two arbitrators and the Secretary General of the Permanent Court of Arbitration appointed the presiding arbitrator, a French professor of international law. And the parties then submitted written pleadings, setting forth their arguments. They then met at the Peace Palace. They could have met anywhere, but the Peace Palace has, as you see, a nice room for hearings. And they argued the case before the five arbitrators. On each side of the arbitrator, you see a PCA lawyer there to assist wherever necessary. And among the various decisions the tribunal made, it delimited the Abbey area. And the pink line you see is the Abbey territory as decided by this arbitral tribunal. And that decision is binding on the parties. Now, there were allegations that there were violations of human rights in this region by both sides. But arbitral jurisdiction is limited to what the parties give to the arbitrators. They only can decide on what you give them power to decide. And no one said you can decide on violations of human rights. They said you can decide on what the limits of this territory are. So although there are all sorts of human rights issues in this area, in the facts of the case, that is not what was given to the arbitral tribunal. Let's look at a case where those issues were given to an arbitral tribunal. This would be the Eritrea Ethiopia arbitrations. Eritrea and Ethiopia went to war in 1998 over a boundary dispute over territory. They laid down their arms in 2000 and agreed to submit their existing disputes to arbitration. One dispute was about where the boundary should be, the land boundary. Another dispute was about all the alleged violations of international law committed by each side during the war. And those disputes were submitted to an arbitral tribunal at the PCA. Here you see a map of the border of the two states. The red arrows show where the main Ethiopian army movements were across the border. So claims were allowed to be submitted to this arbitral tribunal for violations of international law by the other government. And of the various claims, this case went on for 10 years. They had a mass number of claims on all sorts of different subject matter, but they included what are clearly human rights issues. Let's look at one of the areas of the claims. This related to the Eritrean internment of prisoners of war. They held over 1,000 Ethiopian prisoners of war in the period 1998 to 2002. Ethiopia accused Eritrea of mistreating these prisoners and the arbitral tribunal found, among other things, that Eritrea was responsible for failing to protect the Ethiopian POWs from being killed upon being taken prisoner. So that's clearly human right, the right to life. If you're taking prisoner, you shouldn't be killed for no reason. Also, they failed to provide Ethiopian prisoners of war with a minimum standard of medical care. So some suffered or died because they didn't get sufficient medical care. This is clearly a human right, as well. The arbitral tribunal found these human rights in the applicable law to the dispute. Customary international law was part of the applicable law and they found that these human rights were protected under customary international law and that Eritrea had violated them. So here's an arbitration where arbitrators decided on human rights issues. What about business and human rights? Well, somebody told me this was going to be discussed at the UN forum in December on business and human rights. So I attended and I heard a talk organized by two NGOs about the potential for arbitration in business and human rights disputes. And it was said that the third pillar and the guiding principles, remedies, that we need to provide remedies for are people who have suffered violations of their rights, that arbitration could provide one of the potential remedies. Of course, this wouldn't exclude other remedies going to national court or mediation of these disputes, but it could be added as one of the potential remedies. They, some of the speakers said that a set of specially drafted arbitration rules that took into account the needs of business and human rights cases that they should be transparent. Everybody needs to know what's going on in these cases. You need to know what the decisions are for it to influence the rest of the world and how they behave. That third party should have access to these proceedings that they should be able to submit arguments as amicus. They shouldn't be closed like some arbitrations are, that perhaps a specialized panel of arbitrators with expertise in the field should be constituted to facilitate identifying appropriate arbitrators to decide this sort of case. I listened with great interest because among the various things they said was, and the PCA should do this and the PCA should draft these rules and they did it for the environment. Why aren't they doing it for human rights? So we listened with great interest and we saw some difficulties, which many people have perceived, but I will just talk about a few of the ones that I see. One is consent. Arbitral jurisdiction is, of course, based on consent. A state doesn't impose it. A national court may have jurisdiction over you because you're in the territory or because you did something there. An arbitral tribunal only has jurisdiction over someone who suffered a human rights violation and the corporation that potentially did it if those parties consent to arbitral jurisdiction. Now, individuals suffering these violations, they have a strong incentive to accept arbitral jurisdiction if they have no other place to take their claim. So I'm not too concerned about their potential for consent, but what about the businesses? Do they have a strong incentive or any incentive to accept arbitral jurisdiction for these claims? Well, they might. There are a number of situations we can imagine this. One is they want a great reputation for corporate responsibility. They want to have a strong outward appearance. It's good for business. I mean, some of these are, they may just be run by people in good faith who don't wanna violate human rights and if they're accused of doing so, they want to address them. But we have a lot of examples and I know somewhere discussed yesterday where some corporations escaped jurisdiction over their claims and so those, if they're already finding jurisdiction in national courts, why would they accept jurisdiction in arbitration? Question, so a big issue will be creating the incentives for businesses to accept arbitral jurisdiction. And one of the other potential reasons that businesses could be attracted to give consent would be if they want to benefit from certain state aid in making a foreign investment. That is, foreign investment insurance or certain loans that may be available by state or state controlled entities. States could condition the access to those resources for their home corporations. If you want to invest abroad with the assistance of our government in terms of insurance or some kind of subsidized financing, you should also accept arbitral jurisdiction from anybody in this country where you're going to be investing who says that you've done something to violate their rights. So there could be some, if state entities that provide this assistance to foreign investment add this to the conditions for providing this assistance, that's a possibility for consent. What about costs? National courts, national judges are paid by tax dollars. So for litigants to bring a case in a national court, of course you still have to hire your lawyers but you might not have to pay anything to your judge. Hopefully you're not paying anything to the judge. But in arbitration, arbitrator's fees and expenses are paid jointly by both parties. So it's not one pays one, one pays the other. But there's a deposit made at the beginning of the case and the deposit is used to pay the arbitrator's fees and expenses. And again, lawyer's fees are expensive as well. We know that many of the litigants we think about who might have human rights claims to make, they have no financial resources or very limited financial resources. So how do we provide them the resources they would need to bring these claims? There are some examples of financial assistance. The PCA itself has a financial assistance fund but it is designed at this stage for developing countries to bring claims in arbitration. Could that same model be used for indigent individuals bringing human rights claims? Certainly it could be, then you have to find the money but this is a big issue is the costs. Third one that I'll mention, there are many more we might get to in discussion but enforcement of arbitral awards. In international commerce, this is why arbitration is so attractive is that there's an international convention, there's a treaty signed by 154 states that says we will accept foreign arbitral awards and we will enforce them in our country just as if they're a judgment of our own court. There's nothing like this for court judgments in the world. This is why international arbitration is the preferred method for international commercial dispute settlement. Does this translate perfectly to human rights claims? Now this is the convention I was talking about. Look how much the world is a member state of this convention. Everything that's blue has signed up to this convention and says they'll accept foreign arbitral awards. The problem in our context of business and human rights is that around a third of these states have said we'll only accept foreign arbitral awards if the subject matter is commercial. Now it's not clear to me that every one of these human rights disputes with businesses can be qualified as a commercial dispute. The other states that haven't expressly made the commercial reservation under the New York Convention may have other grounds to refuse enforcement. This convention also says if you consider the matter as too sensitive a matter of public policy, you may not have to accept the arbitral award as well. And this convention is typically used for commercial disputes. It's not clear how all the states of the world will react to someone saying here's an arbitral award relating to a human rights violation, enforce it. Particularly what if it's one where an individual who suffered human rights violation or allegedly did so lost the case and then they try to bring a case in the national court. A judge might say, and then the corporation shows up and says, hey, we agreed to arbitrate that case. You should have no jurisdiction because we submitted all of our disputes to arbitration. The case is over, a final and binding decision. A national court judge may say, well, this isn't just some average commercial case. This deals with human rights. On the basis of our view of public policy, we're going to take jurisdiction anyway. So these are, this hasn't happened yet. This is all theoretical. But this is why the business and human rights analysis for enforcement of arbitral awards is different than enforcement of arbitral awards in the commercial context. Now, despite all of these concerns, potential problems or difficulties, we have an example of arbitration being used in a business and human rights situation. Rana Plaza, the Accord on Fire and Building Safety says that disputes under that agreement will be submitted to arbitration. Now, the scope of what can go to arbitration is very limited in that Accord. And it's also, the arbitration agreement is actually terribly drafted. We would call it a pathological clause. That if when you start arbitration, if the other side doesn't want to comply, it actually doesn't have the right mechanism to force them to comply. So there's a drafting problem, but that's a separate issue. The principle that arbitration can be used in this context is shown here. So I think what we really need to, and we'll see in the coming years and this afternoon, is whether this is an exception, an outlier, or whether arbitration can be adapted to be a much broader part of the remedies available to support the third pillar of the UN guiding principles. And I will stop there. Thank you very much, Brooks. I think I was very comprehensive and very illustrative. And what you did very well is show that there is potential, but there are challenges and limits. Yesterday, we had an intervention from a judge, Borgeriarte, that discussed some of those limits as well and mentioned specifically public policy. And I think that's one of the large concerns. And you mentioned some advantages, such as inserting transparency, the integrity of the arbitral tribunal, competent arbitrators with expertise. But as much as you insert some of these, maybe safeguards, these adaptations to an arbitral process, are there really deep concerns with the public interests and public policy and the legitimacy of private arbitrators stepping in an area which is traditionally a duty of the state? The, as you mentioned in the Eritrea arbitration case, failure to protect these minimal standards, duties that we often attribute to the state, were decided by arbitrators. So there is clearly precedent in this area. The question is, as you mentioned going forward, how can arbitration be adapted if this is a challenge that we want to take on to make it an appropriate remedy? Because there are advantages, for sure. We heard yesterday from the business community as well, who articulated the need and the interest for fast and efficient resolution that one thing was to create a damage and the other was actually surprisingly an acceptance to pay damages, but to do it quickly and to move on. And so arbitration, at least in its commercial inception, was based on that origin. Can that be adapted to a more public area, which is human rights, and even as it pertains to private areas, business? So those are some of the questions that are put before us. We will be moving through the panel. I wanna make sure that we have enough time to have multiple perspectives, but at this point, are there questions for Brooks? Good answer. Or also, maybe perhaps from the panel, quick, short. Before we discuss with the audience, I would like to pick up each of your points, Brooks, and try to see if we could, instead of looking at obstacles, look at novel way of looking at those things. Consent, and I'm taking each of your labels. Consent, I don't see any problem there. We have experiences now with investment treaty arbitration where the state is actually the one who says to the businesses and to the other state, okay, arbitration is an offer to you, and if you accept it, apostereyory, then consent is met. So I think we have models. We also have the US-Iran tribunal out of the Iranian crisis or revolution, as we say. And there, the two countries agreed that all the businesses had, and it was a very drastic move, had to go to the Hague, to the new tribunal that was established, and at the same time, desist, desist entirely from the proceedings they had started in their own countries, you know, US on one side and Iran. So the states decided that in fact, the companies could not go anymore to courts, and if they were in courts, they had to move their case to the Hague. And this is a very strong historical example. And so we can build on those historical examples, and I can see the states taking a move in the human rights treaties and protocols and whatever. I mean, there are possibilities. Costs, the fund at the PCA is an example. One of the things we have discussed recently in France via the bill that was pending and has been abandoned now, and then the new bill coming in, is that insurance has a role. When you collectivize the risk and you ask the companies to pay a premium into an insurance fund, and I'm looking at you because you are the business representative, but this was very appealing to the businesses who were in the room when we discussed that. And therefore I could see that part of the fund, if we are creating a fund, which is a very good idea, I think insurances could come in and pay into the fund via the premium they are collecting on the businesses. So by collectivizing the risk, I think you are actually incentivizing corporations also to participate. On the commercial reserve declaration on the New York convention, I'm not worried about that. I think all the human rights abuses we are talking about stem from commercial activities. So it would be a mistake if we as lawyers were kind of timid and prudent there, it is a commercial activity. Businesses are doing their mandate, they are acting on the market and it's just a byproduct, I'm sorry, the human rights violation is a byproduct of a commercial activity. So I think we should be bold there and say that this is a commercial activity. And the public policy exception, it's funny because to me the public policy exception is actually an arm, it's a tool. It's not an obstacle. Why? Because right now I think the point and I think Professor Polkar alluded to that yesterday, although that's not exactly what he said and I'm hoping that I can add and not go against what he said. But I think the level of human rights protection that is required by international law is much higher now than any state law. And therefore we can use what I call transnational public policy, which is an obligation stemming from international law. And imposing on states and actors equally the respect of public policy. For me public policy is actually a tool. It's not an obstacle. Directly on that point, I think this is an argument that's received a lot of debate and can you create a transnational public policy, particularly when you consider such diverse legal traditions and such diverse concepts of what is a violation of public policy and different domestic jurisdictions or not. But this is a challenge for the international community. This isn't, as we mentioned, if we're talking about potential today versus obstacles and creating, at least having a more problem solution-oriented approach versus a problem approach, this could be a way to arm, as you mentioned arbitration, it, I think it will, it's work. Let's put it simply. So this is Catherine Kessejian. Thank you for that intervention. Also with us, thank you for joining us is Maria Areto from Edecode. If you want to maybe perhaps react or wait and like people at least have some questions for the audience from Brooks and before we move on with our interventions. As always, from our, well, we are an SME, a small company and what we business people can do is just take care of our own people. At the end of the day, they should have their medical, we call here the medical assurance or gene ecology and so on and take care that all the people working with us are being treated correctly and not by us managing the company but also by all people in the company to each other. So what we are a small grain of sand in all these politics and so on and from our point of view is just constructing from the basis that things, goals are suited and related to human being's right. That's what I wanted to, to add. And I thank you for your participation because and we've spoken about this in the last two days, but micro and small and medium enterprises are in fact the grand majority of businesses here and while it may feel distant from the world of international dispute resolution as we mentioned yesterday in Orijarriete's intervention, there are oftentimes arbitration clauses signed in commercial contracts and it may lead to a very small enterprise being taken particularly to a distant form and the cost involved with that but we'll open that discussion as we discuss more practical challenges later on. I'd like to give the opportunity to our participants. I see two questions. Thanks Brooks, that's fascinating and really clearly put. I was just wondering in the case of the Congolese wars in the 90s, they went to the Hague and it was interstate resolutions being sought or a case being brought. Maybe it went to the court. Yeah, I just wanted to clarify. Okay, thanks very much. Thank you very much. Thank you very much for that very interesting presentation. I had one sort of remark also to Catherine and one question. First remark, you were talking about the possibility to create a transnational public policy and I was just thinking about the case we discussed yesterday, the Kiebel case in which the Court of Appeals for the Second Circuit decided or said that corporate liability for international human rights violations is actually not sufficiently universally accepted in international law for it to be actionable under the alien towards statute. So I do think it is a good thought and it is an interesting thought but if there are more people out there thinking like that I think it's going to be problematic in this specific context. Just on the Kiebel case, the Second Circuit, there is a very, very strong dissent. So read the dissent, this is the future. No, no, but again, we have a duty as lawyers, professors, wherever we work in whatever capacity to be forward-looking, you know, the dissent is the law of tomorrow. Don't look at what the Court is saying. Same thing with the French judges in the trammory of Jerusalem. This is a gross misunderstanding of what international law is today. You know, these people are living in the 19th century. So we are in the 21st century and this is a very important point. But these people need to agree in the end if we're going to create something like a transnational public policy, we will need to be trained and educated and this is your role, my dear. Thank you. Thank you, we have another question from Judge Polkar. A few points of clarification, I would ask. When we, I see the difficulties of having special rules on arbitration, human rights arbitration but in any case these rules will be optional, I guess. So not compulsory, not binding. So in any event, creating special rules should not be impossible. Maybe not very efficient, not very useful because in any case the parties would have to agree on using these rules. But it may help in some cases, not necessarily in all the cases. As to the insurance, the insurance will be to cover the cost of arbitration. But wouldn't be imaginable also, that's not binding measure too, to have insurance simply for the events. At the end, it might be even better to have arbitration to cover immediately the event. You may have then a dispute with insurance but that will be quite a different situation. And the only issue of the commercial link because the dispute may be between the, sorry? It's the characterization. The characterization, okay. Well, but of course the characterization may be a difficult issue in a particular case. It's not self-evident that any human rights aspect goes within the commercial. I mean it would be a point to be decided on a case-by-case basis I think. I don't think you can clearly say that in any event is a secondary effect and comes false within in all the cases. I mean, so it will be a matter of dispute, certainly whether it's covered or not. But perhaps one could work on the arbitration clauses because in some situations or many situations, the problem when the violation occurs is who is responsible for the violation. I mean, you have a commercial contract and within another company is who is responsible? The one that benefits for the product, the one that produces, this might be the question to be discussed on arbitration and working on the clauses of arbitration may resolve the problem, probably. So what? Thank you, I don't know if there's a response or... The insurance? Sure. Actually just a little note on the insurance. I discussed that with my students on Wednesday and they were shocked that we could ensure that kind of activities. Just to tell you something about the insurance. Those kids are basically looking at the thing as a moral problem. And if you are harming human rights, you are harming people, you should not be able to, in any legal system, criminal, you cannot insure against criminal activities. So if we consider that human rights violations are criminal activities, then insurance should not be in there. But I was just, I just wanted to... Maybe they didn't understand. Yeah, yeah. But I just wanted to tell you that insurance, although in the French discussion, present discussion has been considered as perhaps the one thing that would incentivize businesses to go a bit further into their acceptation that they should be more active and they should be more active, proactive, whatever. From the grassroots, what my students represent, I think they do represent city society grassroots. I mean, they are the kids, they are the citizens who may be impacted by this. So I was interested in seeing their reaction and looking at me and saying, are you saying that all of that is insurable? What's the moral background of that? So I just wanted to mention. So what I'm seeing that I very much like is that the wheels are turning in the audience. And as we're gearing up our engines, I want to add a little bit more fuel into the debate. So I want to turn to Catherine Kesejano. I'll introduce now, hear her intervention and get the dialogue, continue the dialogue. So also, so thank you all already for your insights so far. Tell you a little bit more about the person sitting here to my left. Catherine Kesejano is the deputy director of the European College of Paris. She teaches European business law and international dispute resolution at the University Panthéon Assa Paris II, where she is the director of a master program in European law. She is the president of the International Law Association, the French branch, and she is regularly invited to teach in different countries. She's taught at New York University Yale Law School. She currently acts as a mediator or arbitrator in a selected number of transnational disputes, either ad hoc or under the auspices of among others, ICC, ICC, London Court of International Arbitration, AAA, American Arbitration Association. Before joining Paris II, she was the deputy secretary general of the Hague Conference on Private International Law. She was practicing a turning in Paris for many years, focusing on transnational litigation and international business transactions. She received her legal education from the University of Paris, where she received her doctorate in the University of Pennsylvania Law School, where she received her LLM. She is the chevalier de la Légion d'honneur. Oh my God. We should know who we're speaking to and a number of other awards. I will stop. But just to let you know that we have knowledge on this panel and we're lucky to hear it. So thank you for joining us today and the floor is yours. Thank you, Katerina. I know next time when you ask me a bio I will make it short. Well, it's a pleasure to be with all of you to discuss those issues, which are actually difficult issues, but again, I want always to be future oriented, even though my life is probably more the past than the future. What we are talking about in this area is, and I want to emphasize that, is really private enforcement. And this has been a trend in the past 20 years or so in many different fields and competition law is one of them. And so the question I'm asking to myself and to all of us is why private enforcement has been in a way very well accepted in competition law and environmental law and so on and why is it so difficult to get it in business and human rights? There seemed to be kind of a discrepancy in the legal thinking around the world with this private enforcement in business and human rights. So I would like all of us to think about that and to really take this and go very seriously into the reasonings and the consequences of that starting point. My second starting point is, and this really came up to my mind yesterday, during the day and again this morning, we are not talking about either or. This is not one thing or the other. It is not, those different issues are not mutually exclusive. We have to think in terms of working from every single step possible up to the end of the spectrum, prevention to sanction enforcement. If we are not considering, and there is a very grand word for this, this is the holistic, the famous holistic perspective, if we are not doing that, I think we are missing the point. And this has been said yesterday, but I think we should emphasize that a lot for businesses. It is absolutely crucial that we, the people who are active in the field, get out there, get to you, get to people who are in the business who are confronted with those issues or maybe confronted with those issues to really help you getting to the level where you have to be. And I think we will live in a better world. That's all what I'm saying. Now, I want to focus my presentation or my notes or whatever you want to call them on the other leg of ADR. And by the way, ADR, I do not define it as alternative dispute resolution, but as appropriate dispute resolution. And therefore, for each issue, for each case, for each matter, you must find the best dispute resolution mechanism that you can find. And again, it's not an either or, you can use many different aspects. So I want to focus on the other leg of appropriate dispute resolution, which is mediation, facilitation, conciliation. There are many different aspects to this same little niche. And we are not going to go into that. It's not important at this point. And for this discussion that we are having this morning to go into the details of the differences between mediation, conciliation, and facilitation, all of that have two things in common, which to me are essential. One is that the facilitator or mediator or conciliator is not taking a decision. That person is there to help the parties. And this is psychologically very important because in the mediation, facilitation, whatever, and for the next couple of minutes, I'm only going to speak of mediation, but you will be covering all of the others. The person there is really saying to the parties, this is your dispute. You have to own it as a party. You have to make sure you are a completely involved person into finding a solution to the problem that you are facing. And it's very important because if the facilitator or the mediator does a good job, then, and this is something you cannot invent and I'm going to come to that later on, the parties in the end of the day will actually be able to find a solution with the help of the mediator. And that solution, that's why it's so much successful when we are able to reach a solution because both parties are owing the solution and then they are enforcing whatever solution they have found for themselves. So I think it's a very strong tool. Second aspect is, and that may be a problem, so we have to find a way to actually bypass the problem is the confidentiality. It's the fact that, and because there is the reputational aspect in all those issues, for the businesses it may be an incentive to actually try to find a solution without the eyes of the general public, that may be a problem again, but the way I can see a solution to the problem is that, apostereury, the business can actually communicate. So I would not keep the confidentiality up to the end. I would keep the confidentiality on the process but then at the end we would allow the NGOs and the people who have been harmed and the business to communicate on the positive results. Look, we have been able to find a solution which is a satisfactory solution for everybody and we are the good guys. And we have to find more and more possibilities to get the businesses to what they are best at which is do their métier, do whatever they are there for and taking advantage when they have been able to find good solutions. So incentives is very, very important. Do not communicate only when you have a problem. Do communicate when businesses are doing a good job and I think that to me is absolutely essential and I think mediation has the possibility of giving that incentive to businesses. I think my next point is about using mediation as a prevention and here I would like to give you three examples and try to see if we can build up on the three examples. The first example is the BP oil spill in the Gulf of Mexico. What happens under US law and this is US law and what I'm thinking now is try to bring that solution to the European level. What US law now obliges the companies to do when they have had a case like this and they have gone to court and have been sued in court for this kind of damages. The companies and BP is actually under such a scheme. They have to accept a mediator who is actually a different kind of mediator. It's actually somebody who is more like an auditor who goes into the company, have all the employees of the company from the little guy down there to the CEO. All of them have a duty imposed by the court to actually respond to questions put by the mediator and in the BP case the mediator has a team of 15 people working with them. All of that being paid by the company and that person is actually inside the company. He works on the premises of the company and he makes all the auditing and he says, he gives after the auditing to the employees, okay, this you should not do that anymore. You should do this, you should take that route. You should improve this kind of line of business and so on and so forth. So, I think, of course BP is a large company. The Allspiel was really a very strong one. This is only a national solution but I think perhaps we can learn from that experience and try to see whether we can build on it. The next two examples I'm going to take from the practice of the NCPs, the national contact points and I'm going to actually kind of oppose the UK solution to the French solution. The French solution as very often and I can say that since I'm French is that those people can do everything. They have the knowledge and so the NCP, the French NCP is actually doing the mediation themselves and I'm thinking, okay, did you get training? Do you know what is the mediation? Do you know how to do things? Do you have the skills to do it? And the answer is no, these people have no idea what a mediation is. On the contrast, and I'm looking at you because you are coming from the UK but the UK contact point uses mediators who are there, who have been trained, who are specialists, who are professionals and who know how to do the job. And I prefer this second model because I think you are, you know, probably you have a solution which is stronger and more robust. So that are two ways, you know, the BP experience plus the NCP which is a posteriori, gives you an idea of where mediation can be actually used. And my last point will be to basically ask you to think in terms of when this mediation process and how this mediation process can be built into this holistic solution that I was talking about earlier. I think in line with what I said in my second introductory remark, I think we should be able to propose that mediation at any point, both prevention and when there is a problem, say to the parties, look, you have mediation there, use it if you can use it. And sometimes it may be necessary to start a court case or to start an arbitration but make sure that the judges and the arbitrators are aware of the possibility to stay the proceedings so that to give room to this other process. And I'm not suggesting at all, I'm totally opposed to that. I'm not suggesting at all that the arbitrators and the judges do the mediation themselves. No, absolutely not. But they should be aware that the system exists. They should say to the parties, look, there is this system outside there. Why don't we stay the proceedings at this stage because we find it a good timing and we will stay the proceedings, we'll wait for you, we'll be still available if you cannot succeed, but please go to mediation. We will help you if you need to help to find a mediator, to appoint a mediator. We are not going to do it ourselves but that's what could be proposed. So the timing is essential, but then you need the judges and the arbitrators to be trained to recognize the good timing within the litigation where you propose that to the parties and you'll give room to this alternative method. And the how, I don't want to be too long. I think I've spoken already too long but I was actually reflecting again, this is something that I asked my student to reflect on is the contractual practice. And I'm looking again to my left. The contractual practice of the businesses for their supply chain, for their subcontractors, for all of their contacts. What kind of closes can we invent in the contracts in order for those mechanisms to be already in built in the contracts so that if there is a problem, we can use it at the time when we need it. So I've developed, I mean, I've developed some closes. I didn't publish them yet, but if I'm not too lazy I will try to publish them or to give the ideas to other people and they can use those. But I think that's something we should think in those terms. Thank you and sorry for being so long. No, absolutely no, apologies necessary. Thank you. Thank you also for providing really concrete and practical proposals and potential solutions. As a fellow mediator, I love the idealism and the support of an alternative or as you mentioned maybe appropriate methods. And then of course, then there's the lawyer side of me that of course only sees all the risk and the dangers and a couple of things that come to mind. What is nice and as you mentioned with an option like mediation where the parties themselves come up with the solution with the facilitated professional is that maybe perhaps there's more investment in the solution which could help with enforcement but what happens when there's inequality between the parties which often there is and is that somehow not doing a favor as one issue. And then so you do have an agreement and potentially they're invested but as of yet and Brooks and I know being members of the Unsuchile Working Group do as of yet there is no international convention for the enforcement of negotiated agreements. So how would you get international enforcement of an agreement perhaps out of conciliation or mediation or whatnot. And then with the timing and the staying of proceedings or giving parties an opportunity or other options to solve a conflict. As we mentioned, as we heard yesterday from the judiciary there is a lot of mistrust in particular when we aren't in the U.S. which has a very pro ADR mentality even from the judiciary. This is at least in the continent in particular in the Iberian Peninsula a lot of mistrust and not just from the judiciary but from business parties. How do we change the culture to allow for these mechanisms to one be understood and to use. So a couple of points to consider if you want to answer or also opening the debate also from our representative from the business community our token business community representative and our participants but I'll turn it first to the panel for their comments and then open it up to the floor. Inequality, there are means that have been developed in for example labor mediation where you allow trade unions to be there represented so I could see that the victims of the human rights abuses would be helped in the process of mediation by NGOs. You know, activists who are there and who would be helping the victim. So I think inequality, yes, you are absolutely right but we have developed means in other kind of mediation so I think there are solutions out there we can adapt them. International enforcement of settlement you are absolutely right. We have a solution in within Europe because we have Brussels one deals with that the solution is clear beyond we have to work on this and that would be a good job for the Hague conference. Fausto, are you our hero to the Hague conference? Can we give you that mandate? Mistrust from judiciary, yes, education, education, education. Any other responses? And then we'll take a question from Patricia. Nothing as well, thank you. Brux. I was reflecting on Fresco Sagan's comment on the need for arbitrators to keep in mind and parties in the course of an arbitration that mediation is available to them at any time. This is a general problem for arbitration not just in our context of business and human rights disputes. And the fundamental problem is the perverse incentive that arbitrators and counsel have to continue an arbitration proceeding because it's more lucrative to have an ongoing legal proceeding than it is to have a case that's quickly settled in mediation. A number of years ago I was at a conference at the lunchtime having something to eat by myself and actually they sat and it was crowded so these two people who were having this discussion sat down next to me two arbitration practitioners and one of them said, did you hear Joe was arguing this case before this arbitral tribunal? It was the first day of the big hearing and the presiding arbitrator said in the first 10 minutes, you know, I think the parties should try to mediate a settlement to this case. And Joe was horrified because he was gonna make partner because of this case. So that was, I was listening to him, wow. That's, you always knew this is the case but when lawyers are saying, and then the result was you should never appoint that arbitrator. So it was that counsel in many cases they need the work, that's what's filling their, you know paying for their roof and their food and they don't have an incentive to say, you know what? Yeah, I'm not gonna work on this arbitration for the next year or two years and make a lot of money. I'm going to settle it quickly and let the parties benefit from the more efficient resolution. Now, could this be different in business and human rights disputes? Could we create different incentives there? And in relation to costs, one of the things I had been thinking is we probably can get some arbitrators to do these cases pro bono. They're really very sensitive, very strong public interest. This is just commerce as much as we want it to be for the purposes of enforcement. These are really sensitive important cases that your heart goes out to the claimants here. We've seen at the Permanent Court of Arbitration some cases where you have a desperate or sympathetic claimant or both parties with a real dispute but very limited resources, we have been able to find arbitrators or mediators who have been willing to handle a case pro bono at a very limited fee. Once you get there where the arbitrators don't have a strong incentive, they don't make more money by having a longer case, they'll look at mediation very seriously. And similarly, if we have funding that would only fund counsel in a limited way or legal aid where, for example, legal fees would be limited in these proceedings, we could also create incentives that the counsel wouldn't, they'd wanna do it for the prestige but they're not going to lose something by a case ending early. They could get, we could take them on flat fee arrangements that they get the same amount either way, for example. So anyway, this has inspired me to think a little bit more about how we might create, with the specific needs of costs dealing with costs in business and human rights disputes, we might also, this might relate to using a greater use of mediation and reversing the perverse incentives that we find in arbitration generally. Thank you, and thank you for your patience, Trisha. It's great, I feel I'm learning lots and making, I think everybody has to think very hard. I mean, having been involved in the OECD guidelines and trying to force the national contact points to actually be effective, to understand what they were supposed to be doing, to know they actually have that role and that's taken 15 or so years to get them to the state they're at. And we see them going backwards, actually, I must say. I was on the steering board of the UK National Contact Point and I did welcome, although I was criticised by French NGOs sometimes, for wanting to have the expert mediators because they were hopeless, absolutely hopeless, the NCP had no idea how to start, how to conduct it. So it was worse than just bashing it out between you. But I have had mixed experiences. I still bring cases to different NCPs. And in the UK, I would say that you can have a brilliant mediator who really does take a proactive role and helps you, both sides, work out a possible solution. But my recent experience has been disaster, actually, really. You know, someone who comes more from maybe labour disputes and just was out of his depth, you're talking about Congo, it's not that well known, talking about peasants and maybe, you know, illegal artisanal mining and this company that was obviously should never have been allowed to list on the London Stock Exchange. You know, so they're really out of their depth. So I wouldn't discount having, you know, training up government personnel to be able to be mediators. And of course, the problem with all of these accepting arbitration is that you don't have any finding of fact. So if you have what we need in this area to be able to pick the appropriate ADR is to decide, well, no, this is of a gravity such as it must, you must have some adjudication. You need a determination. And other cases where it might be slightly more ambiguous or there's a willingness, when you say, you know, the parties have to own the dispute. But if it's your most fundamental human right, even what's to own, I mean, that is fundamental. And then that does raise all sorts of other issues. So I think not all kinds of commercial related human rights problems can be dealt with just through mediation. And I think we're being pushed down that road. And I'll discuss it later with the corporate level grievance mechanisms. Okay, I'll leave it there. Probably I didn't, I was not clear enough. When I said the parties must own the dispute, I meant they must try not to ask a third party to find a solution for them. This is a pure psychological study that has been many psychological studies that I've made. You know, as a human being, you accept something, it's party autonomy in a way. You accept something much better if you found the solution yourself, helped by other people. So that's what I meant. Of course, I fully agree with you. And the finding of facts, this is done in arbitration. We have all kinds of means. True, but that's why, yes, but true, but then that's why we can adapt. You know, you see, my point is always that for any problem or obstacles, there are solutions. So let's try to adapt, find a mean to do it. And speaking on the point, I think, so that the effectiveness, which I think this is where our discussion is really taking form, but I think your raising points about appropriateness and one note about arbitration, on the seat of arbitration, wherever arbitration is held, that country's arbitration law is what governs. In Spain, for example, employment disputes between an employer and an employee are not arbitrable. So I would assume that in mediation it would probably present the same problem. Again, you have varying variances in jurisdictions. In the US, for example, it's a special mediation committee, the EEOC, the Equal Employment Opportunity Commission is allowed to mediate, but depending on the topic, right, and as Catherine said, therefore you can create solutions, right? In the US, you create a certain kind of mediation panel, maybe a certain kind of arbitration panel, but there are regulatory limits and that is with it, you know, as we know through public international law, it's the right of a state to govern and to regulate, but again, it's a question of how much we wanna adapt considering these challenges, considering the sensitivities of the issues. So there are limits and there's hard limits and that varies from jurisdiction to jurisdiction, but the question before us is how do we wanna make those adaptations practically and through law to provide solutions that may or may not be more appropriate based on the needs of the parties? And there, a reaction. Yeah, I wanted to add from the business point of view or from my small side that in our case, what we, the tools we use for arbitration are in the prevention of health and working risks and there we have a procedure where we, well law tells you that you have to be arbitrate conflicts between different employees or when you are, when somebody's not respecting the other and so on, but we have included also a previous phase where how to detect and stop this situation before it comes to a very bad point and situation where you cannot go back because conflict is so high that you have, it would be much more difficult. We have the arbitration figure that is based on the prevention, security, PSA is called here, it's a service of prevention subcontracted that we're arbitrate, but we are working on different sizes with making a lot of foreign communication and as Professor Kaceldi. Kaceldi is fine. Kaceldi is fine, okay. Okay, pointed to educate people and to give the tools to behave, to educate, how to talk to each other, just to make everything smoother and not having to arrive to a worse situation. And this is insight, but related to contracts, I think there is a lot of work that could be done. A lot, and I was very interested in those clauses that you were talking about, so we'll be looking forward to when you publish them. Because we could also include that in the contract, so I am employing, yesterday we were signing an employment contract and there's nothing about that, which we are, this comes afterwards when you have to train the people on products and technical issues, but also on quality and prevention issues, but it should be a good point, a start point to have this type of clauses in the contracts, employment contract. Everybody would be clear that you are contracted like that and to behave in this way, speaking on that. And in your experience, how effective have those remedies been? In the examples you used? In my experience, the best is to educate, to create the climate or to create the atmosphere, to work in a clear relationship between people and making them have more skills in communication. That's because when you treat someone in a way, it's because you have not been in a wrong way, it's because before or a year before you have not been able to tell that person, well, this is a difficult conversation and you have to be able to tell that person that you are not in the right way. Well, this is a difficult conversation and trained to in communication training, you have this skill, you go to that skill, you are trained to communicate or to speak about difficult situations and things and you resolve them in the first minute when it appears and that's the way we think that we could. We have never had the opportunity to have the arbitration and hopefully we don't have to because we hope to resolve things before they come up. I think one conclusion we've drawn for these days is the need for public education on this topic, that's for sure. And let's turn to more questions from the floor. Carlos and Borja. Hello, just say I mainly agree with Brooks' name. Yesterday you spoke also about arbitration and the problems of arbitration. If I, yesterday raised the question if even the arbitration could be a way to avoid the right to a due process for one of the parties. But I agree with you that the main problem with arbitration is cost, especially international arbitration. You have spoken about the pro bono programs but this is really can work in your country or in the United States it's very strong the pro bono programs but in Spain really they do not exist. Big major films say that they have pro bono, they say in their web, in internet, the pro bono section but this is only there because they have seen in the American love films pro bono section and they make the same. But this pro bono program, when you come to it, it's empty or it's very, very small. So I think that this is a complex situation because here it's very difficult to find arbitrators ready to work free or for a nominal fee. And cost is one of the problems. And the pro bono works in the Anglo-Saxon world I think that is due to the way that people think. You have the sense that you receive, if you are, if your business goes well, you are receiving for society and you have to go back to society. And the way that lawyers go back to society is the pro bono system. But this idea is not, at least in Spain, I don't know in Italy or in France. But in Spain pro bono is just, there is no pro bono real programs on my own love films. So I think that this is very difficult to achieve here, free arbitrators. It's complex. Probably people will look for government-funded arbitrators to probably the idea in Spain if you propose any kind of free arbitration. And there is another problem I think related to mediation that you said that, okay, in labor, it's really that the labor law in Spain is 90% mandatory law and you cannot change anything. But in labor law in Spain, there is a mandatory mediation before the Servicio de Mediación Arbitraje Confiliación that is a public body. And before you sue your company, you have to go there to look for an agreement. But usually when I was practicing, law, I had to attend several times. And there is no mediation. You just go, you, to sue, need a paper signed by the mediator. You go there to have your paper because the court will require the paper. But nobody tries. And there are only agreements there in a way to obtain unemployment wages from the government. You need that mediation and you go to mediation. But there is no real mediation. And I don't think that there is no real mediation due to the mediator doesn't want to mediate. I think that we are not a culture of mediation. Because, and that figure has been there for 40 years. It comes, or 16 years, maybe it comes from the labor system of the Franco's government and probably come from Italy. Because most of the labor system, administrative system in the Franco's government was copied from Mussolini's system. Probably in Italy at least was in the past. It's mandatory, but nobody mediates. Nobody goes there to, you come through the door saying, okay, I don't agree. It's the first, usually the joke is, I don't agree as a way to say hello. So that's why I think that it's complex to, now in, for instance, in criminal matters, it's beginning in Spain mediation, with minor, obviously with minor crimes. But I don't think it will work. But it's due to a way as the pro bono system doesn't work in Spain. In Spain the poor people is assisted by poor lawyers paid by the government and that is the truth. It's sad to say that, but the turn of the official, that is the way that, I don't know the word in English, especially in English, the public funded lawyers to help people that cannot pay the fees, is done usually by the poorest lawyers as a way of life. And we all know, I don't know if there are many practicing lawyers in here, but we all know that this is the real truth or for the bar association tries to say other thing. No, so that's why I think that is, that's solutions that you propose, at least in Spain, I don't know in other countries, but I suppose that South Europe is similar because we have a similar culture and a similar mentality and we happen. So here in Spain, if you want arbitration, you have to pay an arbiter, an arbiterator or you find the friend that is that kind of, but it's more a meagables component areas, it was called, I don't know, friends that try to solve, it's an expression of all the Spanish law that maybe represents arbitration. Well, just a quick point since I do live and work in this region and I am a trained mediator, I think part of the problem, and I'll invite you as a judge from the bench to develop through the court system, effective mediation systems where you appoint competent mediators and from the bench, there's a lot of power to support and promote this system. It has to come from somewhere, the culture and I agree with you that there is a deficit, but I think one of the things that we're doing is focusing on solution. So I think that's where the judiciary has a role. It's enforcing the law, the law of mediation, which is not just at the regional level but the national level, effectively. And that's work that we have to do together. But there is a solution, I think there is a way. Carlos, your question. Yes, thank you. Well, I completely agree with the Brooks approach about the different barriers or different problems that we have or different challenges that we have to address to make effectiveness in the arbitration. I think you have been referred about this international proposal immediately from the American Robert Thompson. It's quite interesting, try to avoid or to address some of these obstacles in mediation, including the cost. The point is, for me, there is another main question that should be resolved or addressed is in mediation and in remediation, there's a temptation to focus on economic compensation. And the approach from the business of human rights to resolve the problem is obviously could be or should be economic compensation to the victims but also another more comprehensive approach of the restorative justice approach that is including right to the truth, including try to resolve in the future prevent the repetition of that situation. So it's completely different. I know commercial activities is completely different resolving in commercial conflicts because at the end you have a agreement and it mainly is addressed on compensation or something like that. It should be contractual. So I understand the mediation and remediation as a really interesting way to explore and to... But I think that we have to make the right approach from the business of human rights approach. The other thing is when we're talking about mediation and the confidentiality versus the confidentiality that gives the confidence to the different parties gathering, I agree with you with that, in mediation and depending on the mediation. But as I told you before, the truth is part of the solution in some of the cases of the human rights violations. So the point is... And even, for example, when we have been talking about the national point of contacts linked to the OCD guidelines, one of the... an effective situation that most of the countries is because the parties that trust in the process and the procedure and the results of that and also because it's no transparent and there's no right to access to the information of all the process and also because they have a mandatory to implement the final award in that. So this kind of problem is that we were identified for our yields in different experience. What do you think that it could be? So in my opinion, it's not arbitration or not arbitration or mediation or no mediation. I think it could be very interesting experience in both. But the point is which are the limits which should be adequate adaptations for that for this particular issue that is business and human rights. And thank you for your exposition. But for me, at least it was very, very interesting. I'm just going to tackle one of the issues that you mentioned, which is this right to the truth. In the mediation process, there is a very, very important time during the process. And I'm not speaking of procedure. I'm speaking process. It's when the party who has acted in a way that is causing harm reaches the point where it recognizes the other party. So usually the mediation is like this. You start where the parties don't look at each other. You start where the parties ignore who they are. They actually don't understand who they are mutually. And then gradually, and that's where Patricia mentioned that she had a terrible experience recently, but that's where the mediation skill is actually so difficult to acquire. And I'm telling you that because I'm still continuing my training as a mediator. And it's really very difficult. But you get to the point where there is recognition. And as soon as you have recognition between the two parties, meaning I am able to look the person in her eyes, whoever that person is, to recognize that that person is who she is, is who he is, and has acted in a way so and so forth. And to me, this right to the truth is right there. It's not a right to the truth which is public. I mean, the NGOs and all the activists are actually doing it. But when you are, and I'm sorry, I'm going to get very personal, but you have to know that. 2015 is the 100th anniversary of the genocide against the Armenians. I know what it is to be denied as a person. I am one of the descendants of an Armenian father who lives through the genocide. And whenever a Turk is telling me, sorry, that never existed, that we never did anything, and so on and so forth, I am denied as a person. So I recognize that recognition. I recognize that recognition. Sorry. It's so important. And I think this right to the truth is actually right there. But I would agree with you also that not all cases are fit to this kind of process. So we have to find, that's why I was speaking about appropriate dispute resolution, I totally agree with you that some cases will be absolutely not fit for this kind of process. So on this point, we fully agree. But we have a long way to go. We have work to do. I mean, all of us. It's a great time to be in practice or in an NGO or in a business right now because we all, I mean, you said you are the little sand in the thing, but this little sand is making a difference. So if you, wherever you are, whether small or big, you make the little difference, it will change the entire picture. I'm sorry, I'm almost preaching now. Well, in the difficulties I outlined, I didn't mean to be too pessimistic about them. I just wanted us all to look at them in a very realistic way. But I have some optimism about some of the areas that have just been raised. First, arbitration is about commerce and financial damages. That's the most common kind of relief you get in international arbitration. But we shouldn't forget that arbitrators may have wide powers to craft all sorts of relief. Maybe they don't do that enough. But in our context, that might be the most critical kind of relief. I go back to the Eritrea Ethiopia disputes. Really, at the end of the day, what Ethiopia wanted was the declaration that Eritrea had started the war. And that is one of the findings of the claims commission. The Yusad Bellum claim found that Eritrea was responsible for starting the war. The claims, many of these other claims had quantified damages. When you added them all up at the end of the case, they essentially canceled each other out. So the financial damages were actually, it was the principle, the money wasn't a big deal in Eritrea Ethiopia. And that may be the case in the sorts of, in many of the kinds of claims that we might see. And so, but we shouldn't discount the ability of arbitrators to make declaratory relief or to maintain jurisdiction to watch a situation evolve. Maybe something's not ripe yet and they'll come back to it and they can provide a sort of oversight capacity. The also, if this regime is a transparent one, if we imagine a new arbitration regime focused on this area and it's transparent and there's a community of users of it, we have the potential to have a shaming mechanism as well, which we see in many cultures as really the ultimate recourse. It's not about paying someone money, it's if you, for compliance, you make someone look bad. Everybody looks down on them if they don't comply. We can see that it potentially happens in the public arbitrations we have. In the interstate cases, they tend to be public and a state more than anything feels the pressure of the international community when an international decision is made against them and they don't comply. So we might be able to also see that parallel in the context of human rights disputes that if we have a transparent type of proceeding that the parties would feel a different kind of pressure to comply and that the enforcement mechanism designed for commercial disputes may not be as relevant. It might not be such a big deal that we're not sure whether the New York Convention will function perfectly in human rights disputes. It may be that with a transparent process, there'll be a much stronger need and desire by the parties to comply with the determination. Then with regard to costs, I agree completely. These are serious concerns and they're legal cultures that are more predisposed or designed to offer a certain amount of free legal services and others that are not designed to do that or don't have that as part of their legal culture. We should not underestimate on the arbitrator level the intense prestige that comes from an arbitral appointment. So parties often in a commercial dispute, they appoint the arbitrators and they worry about the costs later because the biggest cost is always the lawyers. But at least as far as the arbitrators go, if the PCA often, when they say we can't agree on arbitrators, can the PCA appoint arbitrators? We discuss their fee arrangements with them before they're appointed and you'd be surprised how much leverage you have then when you discuss it beforehand because they want to be the arbitrage. Many of them more than anything, they'd like to be the arbitrator more than getting the money or at least as much depends on the profile. In our field though, these aren't going to be simply commercial practitioners typically and they may be more interested in the principles at stake and I'm not, so I'm optimistic that we could find if you come to them at the beginning, you can establish panels or in a specific case approach them before appointment and say, would you be willing to do this case pro bono? It's happened in actually a conciliation recently where we appointed a conciliator in a case between an intergovernmental organization and a private party and it actually, the private party's complaints, almost they do relate to some extent to say employment relationship and being treated fairly. So you could almost, there are some parallels with the human rights dispute and the conciliator was willing to take the case pro bono. And that's just the end of last year. So this is a special field and I think the people with a strong interest in it, we might be able to convince a certain number anyway to do it for reduced fees. I think the lawyers are, it's a harder sell. The law for, you know, the arbitrators, some are retired people looking for something to do that's interesting to them. Some of them are professors who already have a salary and they'd be very excited about deciding this kind of case and they're not concerned about the money. We see it in our cases too at the PCA. Some arbitrators never send us bills. They feel like it's a public function they're serving and we have to chase them up. Do you have any bill to send us? And some of them you can see by their bills, they see it much more as a commercial activity. So there is, it's much, I think it's easier in arbitrator appointments to find the right people who would be willing to do it for nothing or for a fixed fee. Council is going to be harder to do, but I think there are still potential, there is still potential there. It's never been tried in a centralized way. If we say we want a list of law firms that will say publicly that they're willing to take business and human rights disputes and do them pro bono or do them at a fixed fee and let's see who signs up. And some of these, just like the ones who want to put it on their website even though they don't do it, some are going to want to be on that list and then they're going to have to think about can we provide that service if we sign up and they're going to have to, they're going to be, if they're left out they're going to feel like they're not taken seriously. Also for the cases where parties are willing to pay. So I think there's potential, but these concerns are real. It's hard to find people who want to work for free. But this is a sensitive enough area with a strong public interest that I think we will find people available if we look. Well thank you all for your interventions and comments for our panelists as well. The museum has asked us to end promptly at one PM but if there's any concluding remarks from the panel. Well then I would like to thank you very much and to all of you and we'll work convenient at three PM. Thank you.