Dentons Advocating for Peace in Human Rights and Resolution in Infrastructure

Meriam Al-Rashid is a member of Dentons’ Litigation and Dispute Resolution practice group, and head the US investment arbitration group, where she focuses on international investment and commercial arbitration and risk management, covering various industries across the globe, including infrastructure, oil and gas, mineral resources, hospitality and real estate. She speaks on matters regarding human rights, cryptocurrencies, all the way to infrastructure and arbitration.

 

What unique challenges are presented when you have worked matters regarding post conflict peace negotiations?

Where a state or part of a state is emerging from a conflict situation, there are of course a huge range of competing concerns and interests that have to be balanced. It is critical that legal advisers involved in any capacity are cognisant of the political backdrop, the particular concerns of the respective groups involved, and of the overarching goal of securing sustainable peace.

Litigation or arbitration can form an important part of achieving this goal – for instance, in the division of state property where that is disputed, resolving boundary disputes, ensuring the protection of cultural heritage, and holding those who may have committed wrongs during the conflict to account. However, dispute settlement mechanisms alone are unlikely to solve post-conflict issues, and lawyers advising negotiating parties should bear this in mind when taking strategic decisions. Is pursuing a particular right or issue too aggressively likely to de-rail another part of the settlement? Or are there sensitivities on the part of certain negotiating groups that should inform how particular matters are addressed?

Lawyers may also be called upon to recommend or agree upon independent experts or mediators to help the parties work through certain issues.  The post-conflict dynamics mean the selection of such persons requires even more careful consideration than in a commercial context – their personality, style and ability to engage the parties can be instrumental in whether negotiations succeed or fail.

 

How important do you think pro bono work is in situations involving having to provide legal assistance to those involved in peace negotiations?

There are many ways in which lawyers can assist those involved in peace negotiations on a pro bono basis, and we see this as something incredibly important we can offer. By definition, following a conflict there is a real urgency to negotiations, and the timetable is tight. We want the negotiating parties – and their immediate legal advisers, where there are (for instance) government lawyers involved – to be able to focus their efforts on the key decisions and resolutions to be made. Having pro bono lawyers on hand to advise on issues that arise in the course of those – who can then progress those issues while the key players continue the negotiations in parallel – creates great efficiency. For instance, pro bono lawyers can carry out legal research in international law questions, use our fact-finding skills to investigate particular matters on the ground and gather necessary evidence to inform a party’s negotiating position, review documents towards the same goal, and manage active litigation. In so doing, we can bring to bear our experience of advising in the context of other post-conflict situations, which the parties themselves and their local or in-house advisers may not have.

Moreover, the pro bono support of a full-service firm like ours means that whatever area legal questions arise in, negotiators will have immediate access to a network of specialist lawyers with the necessary expertise.

 

On the other hand, in what ways are cases involving human right violations similar to litigation involving infrastructure and real estate?

There are certain features that all contentious cases share, whether they relate to human rights, property, or other legal areas. Advising clients on the conduct of litigation always requires: the investigation of the facts; the assessment of the merits of a case at an early stage; devising and implementing a clear strategy for the dispute, whilst always bearing in mind the overall goal of obtaining the particular relief the client wants (be it through a final determination or settlement).

There may be considerable substantive overlap between the areas of human rights and infrastructure/real estate, since the right to property has gained increasing recognition on national and international stages as something that is to be protected.  For instance, Article 1 of Protocol 1 to the European Convention on Human Rights protects the right to peaceful enjoyment of property. Violations of this article have been found in cases brought before the European Court of Human Rights (“ECtHR”) as well as national courts; for instance, in Pye v UK, the ECtHR found that the English law on adverse possession, by which two companies had lost valuable land to a squatter, breached the Convention because the companies had been deprived of their land without warning and without compensation.

There may be intrinsic similarities between clients’ concerns in litigation regarding human rights violations and those involving infrastructure and real estate, since (depending on the context) both have the potential to involve matters of deep attachment and significance for clients. In many cases, real estate (whether commercial or residential) holds a special place in the mind and focus of our clients, as human rights violations clearly also would. As such, managing clients’ expectations and considering the best way to achieve the result they want requires particular skill and sensitivity.

 

With a sheer amount of experience in arbitration, how have you seen the International Centre for Dispute Resolution and other jurisdictions’ centres for ADR develop over the past few years? How has this affected lawsuits that involve infrastructure and real estate?

It is undoubtedly the case that alternative dispute resolution mechanisms are increasing in popularity and becoming a more commonly used method of resolving disputes between parties. This is due in part to the increased globalisation of the economy, but furthermore, the role of these centres (such as the International Centre for Dispute Resolution) having the regimes that commercial parties often look for – particularly in infrastructure and real estate.

The MENA region is a prime example of how these centres play an increasingly important role in determining the physical and legal landscape. With Expo 2020 taking place in Dubai, and Saudi Arabia’s Vision 2030 which plans to put in place regional development plans across the country and in a variety of sectors, there is a real push to build and construct. These are just two examples across the GCC region, which expects to triple its population in 50 years. Whilst this drives to move the region into pushing for increasingly better infrastructure, smart government and development of real estate, the rate of growth and expansion inevitably means that disputes will arise. Such projects are often extremely complicated, take a number of years to complete and will generally have great numbers of sub-contractors (from across the world) involved. When disputes arise, the role of ADR centres becomes paramount in assisting parties to arriving at a resolution that allows plans to continue (where they may have halted), or to put parties in the position they ought to have been in where contractual obligations have not always been properly executed.

 

How do you see cryptocurrency affecting the investment scope in the following year?

Whilst cryptocurrencies certainly add uncertainty and excitement to the investment landscape via the threat of disruption, a significantly higher level of maturity is required in both the underlying technologies and adoption before they can meaningfully affect the investment scope. The most likely avenue through which the investment scope will be affected is likely to be as a replacement of fiat currencies.

However, the secondary effects will be felt in the legal sphere as regulation of investments via new mechanisms will become increasingly difficult, given the decentralised and encrypted nature of cryptocurrencies. Given the status quo will remain a continuing and viable option (that is, investment through traditional financing), it would be reasonable to assume that eventually cryptocurrencies will increase the demand for investments. It is likely that this eventuality will take a long time to come to fruition, so whilst preparation is always key and understanding how cryptocurrencies work is important, it is highly probable that in reality there will be little impact in the following year. What could indeed have an impact on the investment scope in the coming year, particularly when viewing this through a legal lens, is the translation of the blockchain technology underpinning cryptocurrencies, its application in contracts, legal documents, ledgers etc., as this is what technology firms are likely looking to attack first.

 

Meriam Al-Rashid

Partner

www.dentons.com

 

My experience includes participation in arbitrations before the International Centre for Dispute Resolution (ICDR), London Court of International Arbitration (LCIA), United Nations Commission on International Trade Law (UNCITRAL), International Chamber of Commerce (ICC), and the International Centre for the Settlement of Investment Disputes (ICSID) and the Permanent Court of Arbitration (PCA) at The Hague.

I also work on matters surrounding post conflict peace negotiations and governance, and war crimes, including but not limited to matters involving: Iraqi civil society organisations to train and build their capacity to document human rights violations; the Government of Kenya and civil society organisations to support their efforts with domestic accountability for election-related violence and politically motivated human rights abuses; legal and policy planning assistance to the High Negotiations Commission in Syria, assisting pro bono organisations to provide legal and policy assistance to Syrian civil society activists to assist them with their advocacy efforts on key issues in peace building and negotiation processes.

I am an adjunct professor of law at Fordham University in international investment law. I have taught as adjunct faculty for graduate-level courses in international law and international organisations at the George Washington University. I often speak at conferences and writes articles on issues related to international investment arbitration and international law.

 

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