Why - A Transnational Dispute Management Intelligence Service?
Article from: TDM 1 (2004), in Editorial
With accelerated economic globalisation, transnational disputes - cross-border, cross-cultural, cross-disciplinary and involving national and international levels of law and regulation - have grown in leaps and bounds. And so have methods and markets of specialists to manage them.
International commercial arbitration is now the preferred, widely practiced and rapidly growing way to resolve such disputes in a quasi-judicial way. Investment arbitration ("arbitrage transnational") is the new and also rapidly growing way to determine disputes between foreign investors and governments over alleged regulatory misconduct. ADR is being proposed - and to some extent (in particular by myself) practised as a more cost-efficient and a much more value-creating and more commercially and managerially appropriate way to resolve dispute. Early dispute management systems are built in from the start into the contractual and institutional mechanisms of complex transnational business transactions.
To provide intelligence on these developments is the principal objective of our new service - the global transnational dispute management portal - is to provide rapid updates on new developments, insights and comments (rather than only description) from professionals able to impart a keen analysis of the development and its implications, we will publish comments of any length which are of quality and relevance, both original and new brief comments and we will try to identify and publish relevant, in-depth and authoritative works already published in less accessible publications, in academic institutes, through law firms, on the internet or less familiar journals, academic reviews and professional newsletters.
There are a number of high-quality arbitration reviews around; Transnational Dispute Management is not meant to compete or replace them, but rather focus on being very up-to-date, internet-based intelligence and insight - with its great potential for user-friendly, rapid and effective searches and availability of large databases to our users. TDM will also provide a rapidly growing database of relevant pre-published articles and of primary legal and regulatory materials.
Finally, TDM is not meant to be just "another international arbitration" journal, but rather a combination of newsletter, review-journal, internet service and primary materials database which goes across disciplines - law, psychology-psychoanalysis, international business management, economics, arbitration, WTO, international investment law, and across the various areas of "dispute management" - rather than just quasi-judicial conventional "resolution" of disputes in litigation. As a result, we will emphasise mediation/ADR, conflict avoidance and commercial conflict management by bilateral negotiation or by third-party facilitated negotiation.
Providing a global overview
There are both practical challenges in the fields of commercial and investment arbitration - where the law is currently evolving rapidly, and political challenges - based on sovereignty-based criticism of investment arbitration or on criticism of all arbitration as not providing equal justice in factual terms. Similarly, the normative framework of ADR/mediation approaches is not well settled. Different regions in the world, and different industries and communities take often widely divergent approaches. TDM has been launched in order to offer a global overview, and to provide more detailed identification and analysis of specific instruments that have a wide relevance.
Our first priority is to inform reliably and rapidly on matters of professional relevance; secondly to obtain in-depth studies of intellectual excellence. But is also meant to be a "wide church": We want to be a forum for debate between divergent views and various communities. Both arbitration and mediation practitioners, but also treaty negotiators, NGOs should be represented. The ultimate ambition, naturally, is to provide the single global portal for transnational dispute management and thus an essential, inevitable place for information and debate.
Other information sources
Information on such developments is currently available from a number of sources: academic/professional journals (such as Arbitration International, The Journal of International Arbitration or the Journal of World Investment and Trade); high-quality newspapers (such as, in particular, the Financial Times or the Wallstreet Journal); legal information services (eg Lexis-Nexis), occasional and sometimes excellent newsletters produced by international law firms; the arbitration news (Mealy's international arbitration reports) and others) or region-focused services.
If one follows the internet and subscribes to special regional services, one can also keep abreast of developments. Official reports are a useful source, but they are often too long and detailed, and not easily available in a "digest" format.
TDM desires to add significant value to all of these sources. It is closely linked to OGEMID, the principal internet information & discussion forum in the area of oil, gas, energy, mining, infrastructure and investment disputes. It is also affiliated with the International Business Transactions Programme of CEPMLP/University of Dundee where we are currently building a world-class certificate, diploma and Master programme in transnational dispute management. TDM will use the full potential of the internet and web-based data management to provide both a short newsletter, but also access to an extensive, and rapidly growing, database of "primary legal/regulatory" materials. It includes short notes and Summaries - but with access to more comprehensive, in-depth studies and relevant primary material. The emphasis is not on a compilation of "clippings" from newspapers, trade journals and the internet - as valuable as these are as a rapid item of information, but rather on "intelligence", i.e. comment on the true significance, the essential elements and the wider implications of current developments written by oil-gas-energy lawyers and regulation specialists with an in-depth understanding of what a new development means - rather than just the reproduction of a press release.
TDM will also include a selection of what we think are the most relevant recent publications (articles, notes, case reports, official international agency reports).