Are We Going to Arbitrate?

Is it Arbitration or an informal negotiation? No, it is Arbitration. The Parties have contacted the Arbitrator and agreed to arbitrate. Arbitration does not mean sitting down with counsel at a conference table with clients in the outer circle while counsel try to argue the merits of their case to the arbitrator and to each other. Arbitration is not mediation where statements are confidential.

Arbitration is a legal proceeding which should follow the rules of evidence and trial procedure: opening statements, direct and cross-examination of witnesses and experts, and closing. Arbitration briefs explaining the legal and factual positions of each side are encouraged and should be filed with the arbitrator with enough days prior to the proceeding so the arbitrator has time to analyze the briefs before the hearing. Prior exchange of documents and witnesses, per the Arbitration Procedure Rules, are mandatory and to be enforced. It is important to know the rules of evidence for proper objections and be ready to present your case through witness examination and document submission at the Arbitration.

It is the arbitrator’s duty to adhere to Arbitration rules and procedure because that is what the parties want - to present their case to an objective neutral who will make a ruling based upon the law and evidence, in a timely and more cost efficient manner than a court room trial.

By: P. Mark Kirwin, Esq., Arbitrator

Copenhagan Accord: Significant progress was made towards attacking climate change and adapting to the difficult road ahead

The COP15 climate change talks in Copenhagen were not a failure. Quite to the contrary, great strides were made in weaving the diverse cultural and political differences of our world into a cohesive whole to attack climate change. Having personally observed the many contact groups negotiating text in Bangkok, Barcelona and Copenhagen, it became apparent that the negotiators were trying to create a climate change document that would be legally binding while at the same time addressing the concerns of their individual countries and groups of countries.

For instance, addressing adaptation in neighboring nations that are experiencing cross-border desertification as opposed to an island nation that faces rising sea levels and acidification is complex and multifaceted. Choosing a certain text option proposed by one country group, as opposed to another option proposed by another group, could have devastating effect on the economies of the group whose option was not chosen for the final text. Therefore, the contact group chairs worked tirelessly trying to form consensus on bracketed text and agreeable options to the text.

To complicate matters more, there were two separate treaty tracks being negotiated, one under the further commitments under the Kyoto Protocol (CMP 5), and the other for long term cooperative action under the convention (COP 15). When negotiating text in the contact groups, it was often mentioned that a particular group needed to know the decisions of another group because those decisions would have significant impact on the text that the first group was negotiating. And, due to the need for consensus, before a particular option was chosen or brackets taken off text, the contact groups were constantly seeking information from the other groups negotiating text in order to ensure cohesiveness as the treaty documents developed.

It seemed that the flow of information and the arrival of the ministers from around the world, who became involved in the negotiations, became the biggest challenges during the last few days of the conference in Copenhagen. It was apparent by most that a legally binding treaty would not result from Copenhagen due to the complex differences on key elements of the text that still existed.

However, leaders from 193 countries meet, talked and negotiated in Copenhagen to address the reality of climate change issues. And, an Accord was reached on climate change with a deadline of next year to agree upon the legally binding text and to begin funding for adaptation and setting mitigation targets by major emitters around the world.

Yes, significant progress was made at Copenhagen. And, as a taxi driver told me, “The treaty will have a major impact in our lives so it is better to get it right than rush it.”

COP15 in Copenhagen: World Leaders Bring Hope to Talks

KIRF Co-Founder Mark Kirwin is attending the United Nations sponsored COP15 Climate Change Talks in Copenhagen as a volunteer mediator for Mediators Beyond Borders. Here is his update:

A truly tremendous event is unfolding here in Copenhagen. Amid all of the street protests, press summaries, security issues and vast numbers of NGOs (many of which have provided valuable information to the Parties), is a gathering of the leaders of the world. This is an historic gathering of world leaders who are here to address the catastrophic consequences of unchecked climate change.

As Gordon Brown just said, "It is no use saying we are doing our best, we must do what needs to be done."

This week I spoke with delegates from around the world at the COP 15 climate change talks in Copenhagen. I spoke about mediation being used as a mechanism to resolve climate change disputes as well as about the interpretation and implementaion of the anticipated treaty. I walked by world leaders trying to reach agreement on climate change policies. Yes, it is difficult and complex, with words and numbers having significant multi-level meanings and impacts to different nations. But the negotiators are working hard. (Mark Kirwin, volunteer mediator for Mediators Beyond Borders, and Yvo de Boer, head of the UN Climate Change Secretariat.)

Let us continue with our hope that a positive outcome will be reached in Copenhagen.

P. Mark Kirwin, Esq.

COP15 Climate Change Talks: No Agreement Yet

At the high level segment plenary at the COP15 Climate Change Talks in Copenhagen, the chair for the AWG-KP announces no agreement based upon numbers. So, at this stage of the Climate Change Talks there is still a low consensus on the key issues and, thus far, there is no amendment to the Koyoto Protocol. The COP/CMP 5 President is trying to set in motion dialogue with the Party heads of state on the issue. In addition, security is so tight that Party heads of state are having problems getting into the Plenary sessions. Several major groups put forth that the text is not yet in the form to be considered by the high level conference as suggested by the COP chair. They request that the political aspects be considered by the high level, but the technical aspects be sent back to the AWG-KP for further work for a period of one day. Yet there are other major groups that recommend that the political bargaining to take place. Rather that reconvene the AWG-KP, there can be informal discussions on some of the remaining issues.

The meeting was just suspended because the President of the COP resigned. She has been reassigned by the Foreign Minister as the special representative to conduct informal negotiations between the ministers of the Parties.

COP15 Climate Change Talks, Copenhagen: Two Treaties

We are now halfway through the second week of the COP15, climate change talks in Copenhagen. It appears that there is general acceptance that there will not be one treaty. Instead, the parties are working on two separate tracks, one under Kyoto Protocol (AWG-KP) and the other under Long Term Cooperative Action (AWG-LCA). As a result, there are discussions of two separate treaties.

As one can well imagine, the negotiations are very tough at this stage. The ministers of the countries are arriving and now working in the negotiations. The negotiators must answer to their countries. And, the world expects results at COP15. There are strenuous objections to certain text to the proposed documents and also concessions so that no particular party is pictured as the one stalling the negotiations. The contact group chairs are working very hard to build the bridges necessary for consensus by the Parties to the text.

As I write, negotiations are underway for the contact group on other issues for the AWG-KP on further commitments for the Annex I Parties. The Parties are discussing greenhouse gases, sectors and source categories; common metrics to calculate the carbon dioxide equivalence of anthropogenic emissions by sources and removals by sinks; and other methodological issues.

In the earlier session, the Draft decision -/CMP.5 for consideration of information on potential environmental, economic and social consequences, including spillover effects, of tools, policies and measures. This draft decision will now be sent to the Chair of the KP for consideration. This is one area where mediation can be used as a mechanism to resolve conflict under the potential consequences that will arise under the treaty and climate change from the local to international levels.

Promoting Mediation at Climate Change Talks, COP15

Mediator Mark Kirwin is helping promote mediation as a resolution mechanism for accord at the UNFCCC Climate Change Talks with Mediators Beyond Borders. As the reality of global warming and it's increasing impacts on food production, economies, poverty, human health and energy usage is becoming more widely understood, alternative dispute resolution tools such as mediation are important tools for peaceful resolution of climate change issues.



The climate change talks are progressing towards helping countries mitigate global warming and adapt to it's impacts peacefully. Mark will be attending the upcoming COP15 conference in Copenhagen, Denmark.

UNFCCC Climate Change Talks, Bangkok: Days 4 & 5

There appears to be movement backwards and forwards, coupled with frustration and peppered with optimism, as the negotiations continue in the open session Climate Change Treaty negotiations in Bangkok this week. The divide of ideals and political realities of the parties have become foundational, negotiated text statements.

This week's United Nations Framework Convention on Climate Change (UNFCCC) Climate Change Talks in Bangkok will determine the language in the COP15 Climate Change Treaty due to be ratified in Copenhagen this December. It will be the successor treaty to the Kyoto Protocol, which expires 2012.

Below are some of my observations from the conference in Bangkok.

During negotiations on the Financial Resources Group, India questioned the private sector funding language because it would require the private sector to keep two sets of books, one for international scrutiny and the other for normal business. India advanced that the developing countries have their own domestic programs without MRVs (or Measurable, Reportable, Verifiable). It questioned as to what happens to the suggested national mitigation funding if significant amounts of funding come from the private sector for NAMAs (National Appropriate Mitigation Actions). Canada’s response was that there should not be a discussion of offsets in this session because it was being discussed in another room.

During discussions on the Enhanced Action on Adaptation and Associated Means of Implementation, Australia put forth that all Parties need to draw on a variety resources to achieve funding goals. There should be direct contribution in relation to capacity. South Africa responded that this is the heart of the discussion. South Africa voiced that there must be financial commitment by the developed countries. The South African delegates maintained that developing countries are already paying for their own adaptation which is holding back their goals of eradication of poverty and sustainable development. According to the Philippines, the resources must be predictable and delivered in a timely manner. The resources to the developing countries should be based in large part on grants. The cost of inaction is much greater than action.

The United States stated that there are few issues as important as finance. There needs to be an upscale of contribution. The results of climate change will result in a whole scale change in energy structures and economics. This cannot be done with just one small group of financial contributors. We need to bring all capacities to bear under the broadest interpretations. The new US administration intends to scale up contribution for adaptation. The private sector will provide mitigation opportunities. The parties must be flexible in the manner of contribution, maximizing resources. The US will not sign the treaty of there is an international tax included in the language. This sparked statements by many supporting the G77 and China’s position which looked for funding from developed countries.

During negotiations on the subgroup on mitigation under 1(b)(i) of the 2007 Bali Plan, Sweden advanced that we need a list of predictable targets and a list of NAMA’s. The US again voiced concern that we were not negotiating text that would end up in Copenhagen. Brazil, on behalf of the G77 and China, countered Australia’s proposal for a schedule of NAWA’s, because it weakens the commitments of the developed countries because it weakens the level of ambition and contribution to the global level of mitigation.

I was able to briefly talk with the US negotiation team regarding mediation proposals.

You can read a daily update about the progress of UNFCCC Climate Change Treaty negotiations in Bangkok on the COP15 web site.