Belgian Consul General de Baets featured at Global Atlanta luncheon

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Pictured at front, from right: Belgian Consul General William de Baets and Phil Bolton and Trevor Williams, respectively, publisher and managing editor of Global Atlanta.

For decades, we at the University of Georgia School of Law have welcomed collaboration with Belgium and its people and institutions. Even before 1978, when Belgium’s national airline became the 1st foreign carrier to fly nonstop to Atlanta, a Belgian attorney became the 1st foreign-trained lawyer to earn Georgia Law’s Master of Laws (LL.M.) degree. And thanks to the hard work and generosity of Georgia Law professors like Gabriel Wilner and our Center’s namesake, former U.S. Secretary of State Dean Rusk, we’ve partnered with leading Belgian universities to offer summer seminars on issues related to international  law and policy, often with a focus on European Union and transatlantic cooperation. That tradition will continue via this summer’s global governance school at the home of our partner, the Leuven Centre for Global Governance at the University of Leuven, one of Europe’s premier research institutions.

Thus it was a special pleasure to attend last Friday’s “Consular Conversations: Luncheon Interview With Belgium’s Consul General,” held at the Atlanta office of Miller & Martin, where Tom Harrold, Georgia Law alumnus and member of our Dean Rusk International Law Center Council, leads the International/World downloadLaw practice group. The event was part of a series of conversations sponsored by another Center partner, Global Atlanta.

Guest of honor was William de Baets, who’s served since last April as Belgium’s top diplomat in the Southeastern United States. In a wide-ranging conversation with Phil Bolton and Trevor Williams, Global Atlanta’s publisher and managing editor, de Baets explained he’d joined Belgium’s foreign service following 9 years as a Navy officer. Postings before his arrival at Atlanta included deputy head of mission in Côte d’Ivoire, Ethiopia, and Venezuela, and political counselor at Belgium’s embassy in Washington, D.C.

De Baets said that his office provides consular services and also engages in public and economy diplomacy; Friday’s conversation fulfilled the latter role. He spoke to a full house – a testament to the fact that Belgium ranks among the top 10 foreign investors in Georgia, which is home to more than 70 Belgian companies and more than 5,000 Belgian nationals.

Asked about Belgium’s renown as the home of Tintin and the Smurfs, not to mention 20th C. surrealists like René Magritte, de Baets recalled an artistic tradition that reaches back to the 16th C. Flemish master, Peter Paul Rubens. Additionally, Belgium did not gain independence until 1830; before that “the territory kept changing hands and was ruled by other people,” he noted. “We couldn’t speak up too much. We were saying yes and thinking no, or saying yes and doing what we wanted to do. It was a source of our humor – we couldn’t take ourselves too seriously.”

Again answering a question, de Baets spoke of his father’s participation in the resistance during Germany’s occupation of Belgium during World War II.

Flags of the 28 NATO member countries

Conversation then turned to Belgium’s role in contemporary matters. Regarding Brussels-based NATO (right), the defense alliance established 68 years ago by the North Atlanta Treaty, de Baets noted apparent disagreement within the new U.S. administration. Indeed, earlier in the week the South Carolina Governor tapped to become U.S. Ambassador to the United Nations, Nikki Haley, had called NATO “important.”

Although the United States can defend itself without NATO, Europe cannot, and so de Baets advocated strengthening the European Union’s security pillar to offset any weakening of NATO. Such alliances are essential for countries like Belgium and its neighbor, Luxembourg. Yet de Baets acknowledged difficulty in achieving the goal, given disagreement among EU member states – including Britain, even before its people voted in favor of Brexit.

Dubbing compromise a “Belgian export,” de Baets indicated that his country could a key role in aiding Europe’s efforts to resolve crises in financial and security sectors, as well as migration. The goal, he said, is to “strengthen our security without giving up our values.”

Third-party funding a focus of Atlanta international arbitration conference

meganIt’s our pleasure today to publish this post by Megan Alpert, a member of Georgia Law’s J.D. Class of 2018. Along with 2 other students who posted yesterday, Megan recently took part in the 5th annual conference of AtlAS, the Atlanta International Arbitration Society. She served as a rapporteur for a roundtable on “The Rise of Third-Party Funding: Flattening the Playing Field between Haves and Have-Nots?,” featuring attorneys Carlos Forbes (Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada and Mundie Advogados, São Paulo, Brazil), Andrea Menaker (White & Case), Eloise Obadia (Derains & Gharavi), Lawrence S. Schaner (Jenner & Block), and Tim Scrantom (JD’83) (Scrantom Dulles International), and moderated by John Watkins (JD’82) (Thompson Hine). Reflecting on this panel, Megan (above left) writes:

atlantamapAtlanta’s infrastructure and legal framework have made it a major seat for international dispute resolution. To secure that position and foster its continued growth, the Atlanta International Arbitration Society (AtlAS) facilitates a conference where representatives of the international legal community discuss various topics relating to international arbitration. I had the privilege of attending the 5th annual AtlAS conference, “International Arbitration in a Not So ‘Flat’ World: Practical Considerations for Counsel and Their Clients.” Here are some things I learned from the panel for which I served as student rapporteur:

► This particular panel focused on the role of third-party funding in cases of international arbitration. Third-party funding, or more simply “TPF”, is a process by which a claim-holder, either on its own behalf or by means of an attorney, approaches and asks a third-party funder to take an interest in the case by agreeing to provide the funds necessary to carry the case forward. The need for TPF typically stems from the so-called “David versus Goliath” cases, in which claim-holders are practically barred from bringing or defending a case because of a lack of funding.

► TPF agreements involve large investments of capital and large amounts of risk, so it’s no surprise that the “reward” sought by third-party funders is also quite substantial. The typical matrix for the funder is a contingency fee split between a fixed and variable return. Often, the funder not only wants to see its capital returned, but also wants to receive a multiple of that investment dispensed on a preferential basis. The fixed return is typically phrased as “investment plus 200%” or “three times capital invested.” The variable return, on the other hand, is roughly 10%-15% of the final award. This arrangement is, in some respect, a means of obviating the risk of not getting paid, but also insuring that some of the risk remains with the firm so they maintain an interest in the case.

► Challenges with TPF present themselves mostly on the battlefield of professional ethics. Panelists alluded to specific challenges for attorneys and their firms, such as:

  • The potential for a conflict of interest or violation of American Bar Association Model Rule 1.8.
  • Issues of disclosure and finder’s fee implications.
  • Practical concerns of jurisdiction and transparency.

It ultimately depends on the characteristics of the specific tribunal but, in general, these hurdles are not insurmountable; rather, they are areas for exercising caution. They require parties to cross every ‘T’ and dot every ‘I’.

► From the point of view of a third-party funder, the biggest issue seems to be in understanding the legal jargon and its minutiae. The difference in “privilege” and “work product” seems to be especially troubling. Third-party funders operate outside the bounds of the attorney-client relationship, and may themselves seek opinions or advice from outside counsel. It’s extremely important that all parties pay close attention to the transfer of documents as well as communications in this web of relationships. To properly operate with these challenges, an attorney will most likely require a confidentiality agreement involving the third-party funder and assurances of protection from any outside counsel having knowledge of the matter. This agreement seeks to make sure none of the parties improperly turns over protected work-product and that there isn’t any leakage of confidential or privileged information once it passes beyond the bounds of general attorney-client privilege.

atlas-logoPanelists broke down the issues into understandable bite-sized pieces, yet still managed to tackle the tough and more technical issues. They brought to light common issues and misconceptions of the use of third-party funding in hopes of correcting any misunderstandings and encouraging those who may have previously been on-the-fence to not shy away from this avenue for funding. Because of their diverse backgrounds, panelists were also able to provide different perspectives on the issues, including the international application of third-party funding for non-US tribunals. All in all, this panel was incredibly informative – especially considering I had absolutely no idea what TPF was prior to my arrival.

Atlanta international arbitration panel surveys recent developments

johann_cropIt’s our pleasure today to publish this post by 2 Georgia Law students,  Johann Ebongom, an LL.M. candidate, and Brian Griffin, a member of the J.D. Class of 2019 and a Dean Rusk International Law Center Student Ambassador. Johann and Brian recently took part in the 5th annual conference of AtlAS, the Atlanta International Arbitration brian2Society. Along with another student whose post will appear tomorrow, they served as rapporteurs for a roundtable on “Recent Developments in International Arbitration,” featuring attorneys Edward A. Marshall (JD’02) (Arnall Golden), Eric D. Johnson (CARE), Kirk W. Watkins (JD’75) (Womble Carlyle), and moderated by Randall F. Hafer (Kilpatrick Townsend). Reflecting on this panel, Johann (top left) and Brian (lower left) write:

Atlanta, Georgia, is fast becoming a preferred seat for international dispute resolution. This is in part due to the efforts of the Atlanta International Arbitration Society (AtlAS), whose primary goal is to promote Atlanta as a venue for the resolution of international commercial and investment disputes. AtlAS hosts an annual conference in pursuit of this goal, and so provides a forum where practitioners, experts, and others interested in international arbitration can network and exchange ideas related to this rapidly evolving field.

atlantamapWe had the privilege to represent the University of Georgia School of Law as student rapporteurs at the 5th annual AtlAS conference, “International Arbitration in a Not So ‘Flat’ World: Practical Considerations for Counsel and Their Clients.” The particular panel we attended focused on the use of arbitration as a dispute resolution mechanism in the payments-processing, international nonprofit, intellectual property, and construction industries. Here are a few things that we learned from the panelists’ presentations:

Arbitration is a binding dispute settlement mechanism whose basic concept is that it is beneficial for somebody with a deep understanding of the context of a dispute to decide the outcome of that dispute. The practice of arbitration first came about when merchants decided that they wanted fellow merchants to settle their disputes instead of judges, who often lacked knowledge necessary to fairly settle a dispute in a particular commercial context. These merchants they believed that because other merchants were the people with the best understanding of their particular industry, they were more likely to fairly settle their disputes than anyone else. The practice of arbitration has continued through the ages, but arbitrators in this day and age are almost always lawyers with expertise in a particular field. However, non-lawyer industry experts still play a vital role by providing information that helps the arbitrators decide the case.

► The payments-processing industry facilitates use of credit and debit cards. When someone uses a credit or debit card, the payment must first pass through a processor to get from the bank to the receiving business. Most disputes in this industry are currently resolved through litigation, but experts in the field see value in moving clients to arbitration. Litigation is often cost prohibitive and the public forum is an inhospitable place to settle disputes in the payments processing industry in general. The confidentiality of arbitration would be a great benefit, as it would allow companies to better protect consumer data.

► In relation to international nonprofit organizations, disputes generally arise between the charity and private companies, governments, or employees. However, formal disputes are not common in the non-profit industry, and when they do arise charities tend to favor courtrooms over arbitration. This is because charities are often seen as sympathetic parties, which can increases their chances of winning a judgment in court as opposed to arbitration. However, international charities often find it hard to get a balanced approach in foreign courts, as they are often subject to local bias and trust issues while litigating in foreign legal systems. Arbitration might be the solution for international organizations looking for a fair resolution to disputes arising in foreign countries.

►There are many opportunities for arbitration to be utilized in the intellectual property industry. As the cost of litigation rises, more businesses are electing to pursue cost-effective means of dispute resolution, like arbitration, in lieu of protecting their rights in court. That said, generally three categories of disputes arise in the IP industry:

  1. In the first, the two parties are unknown to each other before the dispute arises. In this situation, one party is usually alleging that the other party has infringed upon their patent rights, and they go to court to settle their dispute.
  2. In the second, parties have a contractual relationship. This can be between licensor-licensee, manufacturer-distributor, or supplier-purchaser. Because of the prevalence of arbitration clauses in contracts, these disputes are often settled through arbitration.
  3. In the final category, companies lack agreements between themselves, but work in the same industry. Typically these companies are not likely to arbitrate; however, given that litigation is very expensive, some companies do arbitrate in order to keep their legal costs down.

► The construction industry is worth many trillions of dollars worldwide. International construction projects often produce massive and complex disputes that usually cost more than is necessary and take longer than they should. The construction industry has traditionally looked for alternative ways to settle disputes. Arbitration is quicker and cheaper than going to court, and still provides an enforceable resolution to the dispute, making it preferable to other more traditional methods of dispute resolution like litigation. Arbitration is also valuable in that it provides the ability to have a dispute decided by others working in the same industry, as most construction clients would prefer that arbitrators knowledgeable about the construction industry decide their case instead of a judge or a jury with no knowledge of the industry.

atlas-logoAttending this year’s AtlAS Conference was an enriching experience. We learned about the use of arbitration as a dispute settlement mechanism in the context of four different industries and we took full advantage of the opportunity to meet and network with practitioners and experts in this rapidly growing field, many of whom were willing to share their experiences and impart helpful advice in regards to our academic journey at the University of Georgia School of Law. In doing so, we forged important professional relationships that we hope will last for many years to come. Finally, we thank Georgia Law for this wonderful opportunity to represent our law school at this important and highly educational event.

Amid UK Brexit furor, Consul General stresses Ireland’s solidarity with EU

“Ireland will be committed to the European Union for the long term.”

stephens2That pledge formed the core message of “Ireland, the European Union, and Brexit,” the talk that Shane Stephens, the Irish Consul General in Atlanta, delivered yesterday to students at the University of Georgia School of Law. (Sponsoring were Georgia Law’s Dean Rusk International Law Center, along with the university’s Willson Center for Humanities & Arts and School of Public & International Affairs.) Stephens, who represents Ireland throughout the southeastern United States, continued:

“The European Union is a massively successful peace process, first and foremost. It brought the countries of Europe so close that another war like the 1st and 2d World Wars cannot happen again. It expanded peace, prosperity, and democratic principles. That’s been good for Europe, and good for the world as well.”

The diplomat’s fiercely pro-EU stance contrasts with the current political climate in Ireland’s eastern neighbor and former colonizer – the United Kingdom, where, on June 23 of this year, British voters opted to leave the EU by a margin of 52% to 48%. Brexit hit a snag last week, when Britain’s High Court ruled that only Parliament has the power to take leave from the EU. But that decision awaits appeal to the Supreme Court of the United Kingdom; Stephens’ talk proceeded on the assumption that leave eventually would occur.

“Anticipation of Brexit already has had a huge impact in Ireland and the United Kingdom,”

he explained. By way of example, he noted that the value of the pound sterling has plummeted, and that has made Irish crops more costly, and so less desirable, in the British marketplace.

stephens1Stephens predicted that the UK would retain some relationship with the EU, but said its contours would depend on negotiations between the two. Given the anti-immigration sentiment that helped propel “Leave” to victory, a sticking point may be the free movement of workers. Stephens said:

“This is one of the core principles of the EU, one of the things that makes the EU great, in my view.”

(Driving home the point was Mise Éire/I am Ireland, the brief Irish government video that he showed, which reveals diversity in the Irish polity.) Stephens said he expected access to Europe’s single market to remain contingent on acceptance of the freedom of movement, yet surmised that “pragmatic” negotiations might produce a solution to this disagreement.

Brexit poses opportunities as well as challenges for Ireland, Stephens noted. Ireland’s status as a “market-oriented” European country is likely to increase. Its already enjoys strengths in financial technology, pharmaceuticals, and the software industry, with giants like Google having significant presence on the island. In Stephens’ words:

“Ireland is a place where people are happy to work.”