PEACE, ONE DISPUTE AT A TIME: The Jerusalem Arbitration Center — Catherine A. Rogers Professor of Law and Paul and Marjorie Price Faculty Scholar

Israel

here is one important fact about Israelis and companies, decided that the situation had to Palestinians that is not generally reported: change. They knew that both Israeli and Palestinian Tevery year Israelis and Palestinians engage in businesses would gain from a more neutral mecha- an estimated US$4 billion in trade. Israel is by far nism through which to resolve their disputes. When Palestine’s largest trading partner and, according to they met, they started with seemingly epic questions some estimates, Palestine is Israel’s second largest and insurmountable doubts, but ended with the idea trading partner after the United States. In other of the Jerusalem Arbitration Center (“JAC”). The pur- words, notwithstanding the seemingly endless pose of the JAC, as they conceived it, is to resolve stream of dismal headlines about the prospects for through international arbitration the inevitable com- peace in the region, peaceful and mutually beneficial mercial disputes that arise between Israelis and exchanges occur every day between ordinary Pales- Palestinians. Despite the region’s history, the JAC is tinians and Israelis. now well on its way to being a practical reality.

Of course, as with any commercial transactions, dis- International arbitration has a long history of provid- putes sometimes arise out of these exchanges. In ing fair, neutral, and reliable dispute resolution for those disputes, Israelis generally have full access to parties from different cultural and legal traditions. In the machinery of civil justice under Israeli law. the absence of arbitration, international commercial Meanwhile, it can be exceedingly difficult for Pales- exchanges are inevitably hampered by self-help, tinians to participate in judicial proceedings in Israel; cumbersome financing, or piecemeal contractual conversely, Israeli companies can face their own diffi- arrangements. The JAC could provide a better alter- culties in enforcement. And, of course, just as with native for Israeli-Palestinian exchanges, and by elimi- contracts between U.S. companies and French, nating expensive work-arounds, increase the Japanese, or Brazilian parties, neither party believes amounts invested in profitable exchanges. that it would be treated fairly in the other party’s courts. A NEW “ICC PALESTINE” To create the Jerusalem Arbitration Center, the ICC PLANNING THE NEW JERUSALEM ARBITRATION Israel needed a viable partner. Shachor and CENTER Hulleileh envisioned a new “ICC Palestine.” Perhaps About 2 years ago, a retired Israeli not surprisingly, the Paris-based International Cham- military general named Oren Sha- ber of Commerce (“ICC”) was initially reluctant to chor, now a businessman and the sign on. The ICC wanted assurances that its reputa- head of the International Chamber tion for excellence and any resources that it would of Commerce of Israel (which goes lend to the project would not be wasted in some by the acronym “ICC Israel”), and quixotic quest for the impossible. But the ICC had Samir Hulleileh, who heads up one Oren Schachor long championed the notion of “peace through com- of the largest Palestinian holding merce,” so after an intensive in-person lobbying ef- fort by ICC Israel, the ICC came around to the view to believe that cooperation through the JAC waspos- that this was a serious international endeavor, which sible and could be mutually beneficial. would be a good test of the mettle of its motto. In record time, the ICC Palestine was established only Today, Shachor proudly states that he is much more three months later, and by May 2011, a Memoran- “a soldier of peace than a general of war.” Despite dum of Understanding for the JAC had been signed switching objectives, Shachor’s military experience by the ICC Israel, the ICC Palestine, and the ICC in has been essential to creating the JAC—who else but Paris. a former general with such a distinguished military background could push through the obstacles and The ICC Palestine still has all the skepticism about the JAC. markers of a start-up. It was founded and is chaired by Munib Shachor works at the ICC Israel Masri, a successful American-ed- with Baruch Mazor, now a promi- ucated businessman who has nent Israeli businessman who also been dubbed the “Palestinian has a distinguished career as a for- Munib Masri Rothschild” by Israeli media for mer Israeli military officer and as his extensive philanthropic works an informal statesman in interna- in Palestinian communities and tional efforts on behalf of Holo- Baruch Mazor economic enterprises. Adminis- caust survivors and their children. tratively, the institution is headed Shachor’s title is “Director General” of the ICC Israel, by a vibrant 30-something Pales- and Mazor’s is “Secretary General.” More than tinian woman named Yara Asad, “Generals,” however, Shachor and Mazor denomi- who has an executive MBA nate themselves “Merchants of Peace.” They are Yara Asad diploma from Duke and is cur- working to bring the promise of peaceful economic rently finishing her PhD in Paris. cooperation between Palestinians and Israelis to sometimes-wary onlookers in Israel, Palestine, and It is a one-room operation running on a shoestring beyond. budget out of an office borrowed from a Palestinian pharmaceutical company thanks to its CEO, Talal CHALLENGES FOR THE JAC Nasereddin. What Asad lacks in experience and for- Creating the JAC requires continued suspension of mal legal training, she makes up for with her deter- disbelief and a slow building of reciprocal trust be- mination, sharp managerial skills, and an almost tween peoples who have a long history of reasons to uncanny intuition about legal issues. Asad is em- distrust each other. But the process of creating the blematic of the new generation of Palestinians who JAC is less about opposing parties staking out posi- have a vision of the world beyond their troubled, tions and strategies for compromise. It is more and as yet undefined, borders—and they are deter- about working together to build a strong, resilient mined to make that vision a homemade reality. and independent institution on a solid foundation. For that reason, the seemingly constant flow of polit- THE ICC ISRAEL ical shake-ups, and even incidents of violence, that On the ICC Israel side, Oren Shachor may seem an regularly disrupt efforts at political peace have not equally improbable source for the vision to create derailed work in putting together the JAC. Perhaps the JAC. For more than 30 years, Shachor was in the even more surprisingly, while the Israeli Government Israeli military. His resume counts him in virtually and the Palestinian Authority have trouble agreeing every major violent clash with Palestinians during on almost anything, they have both committed sup- that period, including one in which he was wounded. port to establishment of the JAC. Eventually, former Prime Minister Yitzak Rabin ap- pointed Shachor to serve as the commander in As a practical matter, one of the most significant charge of overseeing the occupation in the West challenges for the JAC is bridging the vast disparities Bank and Gaza. In that role, in his own words, Sha- in business and legal expertise between Palestinians chor was “the very symbol of the occupation.” It and Israelis, disparities that are also represented in was, however, this close daily work with Palestinians, the process of creating the JAC. As Mazor explains, as well as his role in negotiating the Oslo Peace Ac- he knows that the ICC Israel has a significant advan- cords, that gave Shachor the background and insight tage over the ICC Palestine in “know-how” about in-

- 2 - ternational arbitration training, arbitrator training, and judicial training and generally and about exchanges. Long term plans include joint advocate the ICC as an institu- and arbitrator training programs in conjunction with tion (the ICC Israel has Israeli attorneys, and a regional international arbitra- existed for over 50 tion moot court event involving Palestinian and Is- years and enjoys rep- raeli law students. resentation on the ICC Paris’ Executive The kick-off event for these initiatives was a “Teach- Board). It is also well- In” in Ramallah on December 7-8, which provided a known that the Israeli general introduction and overview of international Signing the Memorandum legal profession, Is- arbitration. It was designed to generate “buy-in” and of Understanding for the rael’s cadre of international arbi- highlight the many challenges ahead in preparing creation of the JAC. trators, and its legal infrastructure Palestinian professionals and legal institutions to par- (including legal education) hold ticipate in the JAC and elsewhere. It was remarkably many advantages over their Palestinian counterparts. well-attended not only by members of the Palestin- ian legal and business communities, but also law pro- Against this backdrop, the structure of the Jerusalem fessors from most of the Palestinian law schools, Arbitration Center is designed to be a symbol of the numerous judges, and representatives from various equality and empowerment that it seeks to ensure ministries of the Palestinian Authority. Prime Minis- through its arbitral processes. Its legal form will be a ter, Dr. Salaam Fayyad, opened the event with an op- joint venture, with ownership shared equally be- timistic vision of how local commitment to, and tween the ICC Israel and the new ICC Palestine. In competence in, international arbitration can help at- addition to the prestige of its name, the ICC in Paris tract foreign investment and increase overall trade, has promised to provide essential guidance and in- with Israel and beyond. ternational support in everything from selecting the board of the JAC, to management of an arbitral insti- Plans are also underway, in conjunction with the tution, to establishing its internal accounting system. Palestinian Ministry of Justice and the support of the The joint venture agreement and arbitral rules are Palestinian Authority to revise the Palestinian Arbi- being developed jointly by Palestinians and Israelis, tration Law, which was adopted in 2000 when the with input from the ICC in Paris, and administration Palestinian Authority was first established. Under of the JAC will also be divided equally. While the JAC this law, the level of enforcement of domestic arbi- itself will be headquartered in Jerusalem, there are tration awards in Palestinian courts is extremely low. plans to build contact centers in Ramallah and Tel The current law has many substantive provisions in Aviv, the respective homes of the ICC Palestine and common with the UNCITRAL Model Law, a model law the ICC Israel. that can be adopted by States and ensures national enforcement of international arbitral awards in a CAPACITY-BUILDING IN PALESTINIAN INSTITU- manner consistent with the New York Convention TIONS (the treaty that obliges Contracting States to enforce The structure of the JAC alone cannot resolve all the international arbitral awards). However, the law also disparities between Palestinians and Israelis, particu- includes several loopholes that allow Palestinian larly ones that are tied to Palestinian institutions. courts to engage in an exacting review of arbitral Accordingly, the ICC Palestine, in conjunction with proceedings and outcomes which is inconsistent with Penn State Law and with the support of various international standards. The law reform effort will other institutions (including JAMS; Queen Mary Law focus on closing these loopholes to ensure that the School, Center for Commercial Law Studies at Univer- problems with enforcing domestic awards do not af- sity of London; and the International Arbitration fect enforcement of awards rendered under the aus- Group of the law firm of Wilmer, Cutler, Pickering, pices of the JAC. Hale & Dorr LLP), is undertaking a series of initiatives aimed at promoting international arbitration in vari- LEGAL CHALLENGES FOR THE JAC ous Palestinian institutions, and building professional In addition to challenges within Palestinian legal in- capacity in Palestinian business professionals, stitutions, there are also several complex legal issues lawyers, and judges. These initiatives will include relating to the structure of the JAC and its proceed- various types of educational exchanges, advocacy ings. Unlike domestic arbitration, an international

- 3 - arbitration has a “legal seat” that constitutes its “ju- From another perspective, the JAC is an example of ridical home.” The legal seat determines which an institution that is trying to bring binding and legal courts can intervene in various aspects of the arbitral dispute resolution infrastructure to an economically process (such as to respond to requests for interim under-developed jurisdiction. In this regard, its ef- relief and arbitrator challenges). The legal seat also fort may be a model for many other jurisdictions that determines what law applies when courts review an do not have the legal infrastructure to attract and award, and which courts have the power to vacate or protect foreign investment. In this vein, initiatives to nullify an award (as opposed to grant or refuse en- generate buy-in and to increase Palestinian legal and forcement of the award). If JAC arbitration had a business professionals’ capacity to participate in and legal seat that was regarded as within either Israeli manage commercial disputes may be exported to or Palestinian courts’ jurisdiction, that could subject other places like Bangladesh, Peru, and Kenya. JAC awards to treatment similar to domestic Israeli or Palestinian awards, as well as potentially denying Finally, and seemingly the most unusual feature, the them the benefits of the New York Convention. JAC is seeking to bring peaceful dispute resolution to disputants from jurisdictions that are openly hostile Another legal challenge, at least in the beginning, is to each other and that lack formal diplomatic rela- with respect to the jurisdiction of the JAC. The joint tions. While this may seem like a problem that is pe- venture agreement currently provides that for the culiar to the JAC, there are many similar situations first few years, disputes in excess of $7 million that around the world. Think of the former Yugoslavia, are submitted to the JAC will revert to the ICC in India and Pakistan, Sudan and Southern Sudan, just Paris for resolution. This is effectively a limit on the to name a few of the most newsworthy. To the ex- jurisdiction of the JAC, but an innovative one that tent the JAC is successful in its effort to provide reli- has little precedent. It must be disclosed to potential able, efficient dispute resolution for parties in a users, but not undermine the confidence in, or func- region that is defined by intractable violent conflict, tioning and viability of, the JAC. it may be a model for future institutions in similar contexts. It may also create some space for political THE JAC AS A MODEL FOR OTHER ARBITRAL processes to take a lead from the private sector, for INSTITUTIONS peace to follow from commerce. Other challenges that the JAC faces are not so unique. From one perspective, the JAC may be seen as a particularized example of the “regionalization of international arbitration,” meaning the development of regional arbitration centers whose rules and per- sonnel are more familiar with local legal traditions and culture. Just like small community banks can Originally published in volume 5, number 1 of the NY Dispute carve out a niche by providing service that is better Resolution Lawyer, (spring 2012), a publication of the Dispute tailored to the local community than large, nation- Resolution Section of the New York State Bar Association. wide banks, regional arbitration institutions can pro- vide service and know-how that is more tailored to Catherine Rogers is a professor at Penn State Law, where the local market. They can be cheaper, too. she teaches international arbitration and professional re- sponsibility. She is an Associate Reporter for the Restate- ment (Third) on International Commercial Arbitration, and For such regional institutions, the general challenge is active in various efforts to reform professional legal is how to establish trust and legitimacy for an institu- ethics in international arbitration. Her forthcoming book, tion that is new and intentionally disconnected from Ethics in International Arbitration, is due to be published political and legal apparatus. Building on rules and by Oxford University Press in 2012. protocols established by global leaders is a technique that has been used in other new centers from Bahrain (in conjunction with the AAA’s international division, the International Center for Dispute Resolu- tion or “ICDR”), to the India Center of the London Court of International Arbitration (or “LCIA”), to the Centro de Arbitraje de México (whose rules are based on the ICC Rules).

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