New York, December 3, 2012— An expert panel gathered at Columbia Law School on November 20 to highlight the challenges and opportunities facing the Jerusalem Arbitration Center (JAC), a groundbreaking dispute resolution forum designed to foster trade and perhaps a greater level of cooperation between Israelis and Palestinians.
Despite the conflict between the two groups, the “reality is that they are engaged in trade,” explained Nadia Darwazeh, Paris-based counsel with the law firm Curtis, Mallet-Prevost, Colt & Mosle. Along with her co-panelists, she was invited to speak at the Law School by George A. Bermann ’75 LL.M, director of the Center for International Commercial and Investment Arbitration Law (CICIA), an institution launched in the spring of 2012 and designed to further the teaching and study of international arbitration.
The CICIA has hosted a variety of events since its opening, including on allegations of corruption in arbitration and on the role of courts in reviewing arbitration decisions. Bermann, the Jean Monnet Professor of European Law and the Walter Gellhorn Professor of Law, also directs the Law School’s European Legal Studies Center.
According to Darwazeh, annual trade between the Palestinian territories and Israel is estimated at more than $4 billion.
Yet, like many relationships between Israelis and Palestinians, this trade has been hampered by mistrust, closed borders, and political turmoil. Another important obstacle to trade is that "it is difficult if not impossible for either party to enforce their contract in the other’s courts,” Darwazeh said.
That’s where JAC comes in. At the insistence of business groups on both sides of the Israeli-Palestinian divide, JAC aims to provide an effective and neutral forum for Israelis and Palestinians to arbitrate their commercial disputes.
Despite the years of work done by Israelis and Palestinians as well as members of the International Chamber of Commerce and others to establish an administrative structure and arbitral procedures, JAC must overcome various hurdles before launching next year. Neutrality is essential for the arbitral body to thrive. And, despite the built-in distrust between potential parties, Darwazeh said she felt confident maintaining neutrality will be “doable.”
She emphasized that JAC must stick closely to its mission of resolving commercial rather than political disputes.
Enforcement of JAC awards is key to the success of the Center. An Israeli party must go to a Palestinian court to enforce a JAC award; and vice-versa for Palestinians who win a JAC award. So far, Darwazeh explained, top-level political officials on both sides have promised to support JAC and contend with the thorny issue of enforcement.
The second speaker, Catherine Rogers, a professor at The Dickinson School of Law at Penn State who has served as an adviser to JAC, described several instances in which Israelis and Palestinians have overcome misunderstandings and deeply-held resentments to push JAC forward. “JAC’s success,” she said, “will be built on mutual self-interest.” If it works, it could serve as a template for other countries in conflict like India and Pakistan or North and South Korea, she added.
The final speaker, David Rivkin, a leading practitioner of international arbitration at Debevoise & Plimpton, provided some historical context about the benefits of arbitral bodies. Pointing to examples of arbitration from ancient Greece to modern-day incarnations, Rivkin described arbitral bodies like JAC as institutions that “can improve the rule of law.”
Despite the potential pitfalls, the panel remained enthusiastic about JAC’s chances. “There is cause for optimism,” Darwazeh said, echoing the other speakers’ comments, because “there is a real drive by both business communities to get this project off the ground. There is support at the highest political level. And at the end of the day, there is no viable alternative.”
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