In passing: David Caron (1952-2018)

The sudden news of the passing of my dear friend and colleague, Dr. David Caron, fills me with sad thoughts and happy memories.

Years ago, when I was starting out in international law, David – then a chaired professor at Berkeley, the law school an hour’s drive from my own – was a pillar of support. He was the 1st scholar to accept my invitation to speak at the 1st conference I organized, anchoring debate on “Reconstruction after Iraq” and publishing in our Cal-Davis journal an important analysis of claims commissions as a transitional justice tool.

Warm and witty, David once sent me a handwritten note of thanks for the “lovely bouquet” of pre-tenure reprints he’d received from me.

Both of us transplants from Back East, David and I shared an enthusiasm for California and enjoyed helping to cultivate a close-knit Left Coast international law community – even as we took part in events and activities across the globe.

David’s achievements truly are too numerous to mention. Among many other things, he was an inspiring President of the American Society of International Law, from 2010 to 2012. About the time he completed that term, he took emeritus status at Berkeley, and he and his wife, Susan Spencer, embarked on new adventures – 1st as Law Dean at King’s College London.  (A distinguished international arbitration specialist (see GAR obituary here), he had practiced at London’s 20 Essex Street Chambers since 2009. David, a proud graduate of the U.S. Coast Guard Academy, also was a noted expert on the law of the sea.) In 2016, he was appointed a member of  the Iran-United States Claims Tribunal.

It was in this last capacity that I last saw David. The Global Governance Summer School sponsored by my current institution, the Dean Rusk International Law Center at the University of Georgia School of Law, brought us to The Hague not many months ago. The highlight of our legal-institution briefings was the half-day we spent as David’s guests in the lovely mansion that houses this 37-year-old claims tribunal. (It was not his 1st visit with Georgia Law students; David took part in our International Colloquium in 2008, and in the ASIL Midyear Meeting we hosted in 2012. And he was a strong IntLawGrrls supporter.)

With breaks for tea and biscuits – David was ever the gracious host – our students were treated to a candid discussion between David and Dr. Hossein Piran, Senior Legal Adviser. The two had served as tribunal law clerks years earlier, and the respect they showed one another provided an invaluable lesson about the promise of civil discourse and of the pacific settlement of international disputes.

That lesson is a most fitting way to commemorate David’s passing.

Pictured above, during our June 2017 visit to the Iran-U.S. Claims Tribunal, front from left: Ana Morales Ramos, Legal Adviser; Hossein Piran, Senior Legal Adviser; Kathleen A. Doty, Director of Georgia Law’s Dean Rusk International Law Center; David Caron, Tribunal Member; and Georgia Law Professor Diane Marie Amann, Faculty Co-Director of the Dean Rusk International Law Center. Back row, students Nicholas Duffey, Lyddy O’Brien, Brian Griffin, Wade Herring, Jennifer Cotton, Evans Horsley, Casey Callaghan, Kristopher Kolb, Nils Okeson, James Cox, and Ezra Thompson. This tribute is cross-posted from Diane Marie Amann.

Write On! TDM Call for Papers Special Issue on “Non-Legal Adjudicators in National and International Disputes”

We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120) special issue on “Non-Legal Adjudicators in National and International Disputes“. This special issue will analyse the current scenario, as well as new trends, developments, and challenges that non-legal adjudicators[1] face when resolving national and international disputes. It will consider litigation; national arbitration and diverse forms of alternative dispute resolution (ADR); international commercial arbitration; investment arbitration; inter-State arbitration and the dispute settlement system of the World Trade Organization (WTO).

This special issue will be edited by Katia Fach Gómez (University of Zaragoza-Spain) and Weiwei Zhang(Graduate Institute of International and Development Studies – Switzerland).

National courts and arbitration tribunals very often need to address scientific and/or technical aspects of a dispute. Arbitrators may rely on external competences – e.g., party-appointed experts or ex curiaexperts. However, nowadays there are also various areas of conflict resolution in which non-legal experts are part of the adjudicatory body, and internally provide with the required non-legal competences.[2] In the national judicial context, there are examples of specialized national courts -e.g., in the environmental dispute sector- where non-legal experts guarantee the non-legal expertise of judicial courts. In the international arbitral context, a compelling example of the appointment a scientific-technical expert as full arbitrator is provided by the Permanent Court of Arbitration in the inter-State Indus Waters Kishenganga case. Non-legal neutrals are likewise relevant in commercial arbitration and in the broader field of ADR. In specialized areas such as disputes regarding construction, energy, engineering, financial services, technology and applied science cases, resorting to non-lawyers to resolve these type of disputes is a widely-used practice. It is also very remarkable that in the WTO dispute settlement system, by end of 2014, 44% of the panellists appointed have no legal background and 3 out of the 25 Appellate Body members appointed so far have no law degree.[3]

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The Jerusalem Arbitration Center: “Merchants of Peace” in the Middle East

On 18 November 2013, a momentous event in the history of international commercial arbitration took place: a first-of-its-kind arbitration institution designed to resolve commercial disputes between Israeli and Palestinian businesses was launched in East Jerusalem.

The Jerusalem Arbitration Center (“JAC”) is a private initiative supported by the Paris-based International Chamber of Commerce (“ICC”) and its renowned International Court of Arbitration, and led by the Israeli and Palestinian ICC National Committees. It is intended to increase trade and investment across this troubled border and strengthen economic integration in the region by providing neutral, efficient, and effective dispute resolution services to Israeli and Palestinians businesses. (See Catherine Rogers’ prior IntLawGrrls post on the JAC here.)

The JAC has adopted the tried and true ICC arbitration model, adjusting it to local conditions. The JAC Rules resemble the ICC Rules in many respects, including the method for nominating and appointing arbitrators, the use of Terms of References, and the scrutiny of arbitral awards by the JAC Court. The Rules were adapted, however, to reflect regional particularities and the type of disputes the JAC is expected to administer. For instance, the fees and expenses associated with JAC arbitrations were significantly reduced from those of the ICC, and the default seat of arbitration was fixed as a ‘virtual’ Paris seat (i.e., excluding parties’ ability to apply to the French courts to set aside arbitral awards, in accordance with Article 1522 of the French Code of Civil Procedure), unless the parties agree otherwise.

Moreover, in addition to adopting the jurisdictional threshold familiar from ICC practice, which requires that a JAC arbitration agreement exist prima facie, the JAC Court must also confirm three additional jurisdictional requirements under the JAC Rules before a case can be admitted. First, the amount in dispute as stated in the Request for Arbitration must not exceed $7 million; second, the dispute must be a business dispute; and third, the dispute must relate to Israel, the West Bank and the Gaza Strip, including East Jerusalem. In the event that the JAC Court finds that one or more of these conditions is not met, the dispute will be transferred to the ICC Court and be administered in accordance with the latter’s Rules of Arbitration, unless the claimant withdraws its claims or the parties agree otherwise. In special circumstances, the JAC Court may seek the approval of the ICC Court to administer a case even if one of the above conditions is not met.

To ensure neutrality, professionalism, and international presence and support, the JAC Court is comprised of nine arbitration experts, with an international President (Mr. Yves Derains), an international Vice-President (Mr. Eduardo Silva Romero), two Court Members appointed by each of ICC Israel and ICC Palestine, and three international Court Members. The Secretariat is headed by an international Secretary General (Ms. Nadia Darwazeh) and includes an Israeli and a Palestinian Deputy Secretary Generals.

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