Our ADR Times Contributing Editor, Zach Ulrich, had the opportunity to sit down with expert international mediator and arbitrator Eric van Ginkel, and discuss topics including the role of culture and language in international disputes, differences between international and intranational conflicts, and Mr. van Ginkel’s career as a neutral. A consummate commercial attorney, mediator, and arbitrator, Mr. van Ginkel has a 40-year-plus career in corporate, entertainment, and law firm environments. He is a skilled negotiator with extensive experience in arbitration and litigation management, and in negotiating complex international business transactions, distributorships and licensing, commercial real estate, financial transactions, and biotech co-development deals. Mr. van Ginkel’s expertise in intellectual property law includes a specialty in high-tech cases. He is fluent in English, Dutch, French, and German. Below is a transcript of the interview.
Eric, thank you for joining us today. You have dedicated your life to helping clients resolve disputes. How do you see your role as a dispute resolver?
I am at a stage in my life that I want to be of maximum service. As a peacemaker, or dispute resolver as you call it, I can truly make a difference in the lives of the parties involved in a dispute with integrity and sensitivity - especially as a mediator, but also as a fair and neutral arbitrator.
What are your top priorities as you approach a conflict resolution process? How are your priorities different as an arbitrator versus as a mediator?
I must leave my ego at home. I strongly believe that mediation is an intuitive, spiritual process. I meditate before I mediate, so that I am in touch with my intuitive self. From that place, I know which steps to take on a moment-by-moment basis. When I leave my ego at home, I can be a better listener because I don’t have to worry about selfish things such as how I look or sound. I can be completely focused on what happens around me.
In both mediation and arbitration, I try first of all to establish a peaceful and optimistic climate that encourages the parties to feel at ease and to believe in a right outcome. In both mediation and arbitration my top priority is to be a good listener and to let the people know they have been heard.
Obviously, in an arbitration hearing my role is more passive, as I allow the attorneys to present their cases. But I will not shy away from asking witnesses and experts questions that I feel will help me understand the factual and legal details of the dispute. In mediations, it is an interplay of “active listening” and asking questions.
Are there any kinds of disputes you’ve found tend to be handled more effectively in mediation versus arbitration?
All disputes benefit from mediation and other attempts at early settlement. Who would not prefer to put the emotional and financial burdens behind them, so they can go back to focusing on making money and being creative in business and in their personal life? Therefore, I always encourage the parties in an arbitration to seek mediation, preferably not by me, for the obvious reason that I may know too much by mediating in the event the matter does not settle. On the other hand, I can conduct settlement conferences with both parties in the room at all times, which at times leads to a satisfactory result.
You have acted as a sole arbitrator for the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR), and on more than 60 other cases for the American Arbitration Association. Does any single case stand out in your mind?
Of course, each case has its own characteristics. Just as is true for cases pending before the courts, relatively few arbitrations go to a full evidentiary hearing and an award. One of the cases that stands out is an arbitration I did for the ICC as sole arbitrator between a manufacturer of computer hardware in one country and its distributor in another. The case was governed by the laws of the country where the distributor had its office. There were extensive briefings on several legal issues that were challenging for the attorneys on each side, and both supported their arguments by having experts testify who were known scholars in the laws relevant to distributorships and termination. The matter required an extraordinary amount of work. I held two evidentiary hearings and issued a wide range of procedural orders. I requested briefing on additional legal issues that I found had not been sufficiently addressed, and issued a partial award and a final award totaling more than 120 pages.
This arbitration stands out because of how much I learned from it and the enormous amount of experience I gained by doing it. I must also say that I was fortunate that this was an ICC arbitration, as the administrators in Paris are all lawyers experienced in arbitration, and they helped me along the way by answering procedural questions that came up and by providing a sounding board whenever I needed one.
You have spent much of your professional life working as a lawyer on international cases. But since 2006, you have focused predominantly on dispute resolution, serving as a mediator and arbitrator. What motivated your shift in your career path? Do you have a “favorite” role – attorney, mediator, or arbitrator?
I had the privilege of working for an international law firm that has an important ADR practice group. Among other cases, this gave me the chance to serve as counsel in a substantial ICC international arbitration, which took several years from beginning to end. That experience encouraged me to become a neutral. I called the American Arbitration Association and asked what I needed to do to become an arbitrator. Their answer was clear: Go to the Straus Institute for Dispute Resolution at Pepperdine Law School, and get a degree there. I discussed the idea with several friends who thought I had the right temperament to be both an excellent arbitrator and mediator. So I took the challenge and went to the Straus Institute. I obtained an LL.M. degree in Dispute Resolution in 2003, the very first year that it was possible to obtain that degree at Pepperdine.
I love my job as a neutral, both as mediator and as arbitrator. I sincerely believe that everything I did and learned has contributed to my career as a neutral, helping me to be the best mediator and arbitrator that I can be. My understanding of, and sensitivity to cross-cultural problems, my dual education in both civil and common law, my knowledge of languages, my broad experience as a practicing attorney, both as a negotiator of transactions and as a litigator, and my schooling and teaching at the Straus Institute have all contributed to honing my skills. Today I believe I am a good listener and know how to ask the right questions. This serves me well both as an arbitrator and as a mediator, even though those skills are literally at opposite ends of the spectrum of dispute resolution.
From your experience, have you encountered distinctions between domestic and international arbitration?
Yes, international arbitration differs from domestic arbitration because besides applying to international agreements it involves different rules and practices. It requires arbitration clauses that are different from domestic ones, as they naturally need to be clear on the language the arbitration is going to be conducted in and where the arbitration is going to be held, among other specifiers. In addition, one might say that the community of arbitrators and attorneys specializing in international arbitration differs from the ones who practice domestic arbitration, although there is of course a substantial overlap consisting of people such as I who sit as an arbitrator in both domestic and international cases.
There are also arbitral institutions that specialize in international arbitration. Among the oldest and largest is the International Chamber of Commerce headquartered in Paris. In addition, international arbitrations are administered by such organizations as the International Center for Dispute Resolution (ICDR, a branch of the American Arbitration Association), the London Court of International Arbitration and the Singapore International Arbitration Centre, just to name the most prominent of these institutions. Ad hoc arbitrations are less common, but they are most often subject to the UNCITRAL Arbitration Rules.
Nowadays, the Rules on the Taking of Evidence in International Commercial Arbitration promulgated by the International Bar Association and revised in 2010 play an ever-increasing role. The IBA Rules form a voluntary system for limited discovery and the hearing of witnesses and experts in international arbitration, artfully blending the rules prevailing in most civil and common law systems relating to the taking of evidence.
Last but not least is the 1958 New York Convention, ratified by more than 140 countries, which provides for the recognition and enforceability of foreign arbitration agreements as well as foreign arbitral awards in all these countries, subject to limited exceptions. The Convention provides for a simple procedure that ensures that a foreign award for all practical purposes obtains the status of a domestic judgment.
Of course, none of these elements are present in domestic arbitration.
You are fluent in several languages, including English, Dutch, French, German, and you are proficient in Italian. How does your cultural background and your fluency play a role in your ADR practice?
I have found that an international background can be of enormous help in understanding and being sensitive to cultural differences among the parties. This is of vital importance both in mediation and in arbitration, and both in international and domestic dispute resolution. It is not so much that you need to know the cultural differences. Instead, you have to develop a sensitivity towards them.
I am of the opinion that no one can fully know what makes one people different from another. Of course, the studies that have been done in this regard, including the pivotal study by Geert Hofstede as published in the best-selling book, Culture’s Consequences, have done great service to the field of international social sciences and social psychology. But not even Hofstede pretends to understand all cultural differences, and concedes that his categorizations are really just generalizations.
Consequently, they [cultural generalizations] are of little use in a practical situation. This is not to say that it doesn’t make a difference to know differences. But we also need to be aware that these general observations made in social studies change over time, vary from place to place and vary even among members of the same tribe.
Knowledge of one or more languages certainly helps, especially of course when one speaks, reads and/or writes the language of the persons present in the dispute resolution room. For instance, many Dutch, Belgian and German clients have shared their gratitude that they would be able to share something with me outside the room in their own language, as they had to conduct the negotiations in English, which was of course not their native tongue. Similarly, it has helped me in caucus in a difficult mediation to share a word of empathy in a person’s own language. As you well know, it makes an enormous difference for a party to know that the neutral has heard them. If you can share that in a person’s own language, it becomes even more meaningful. In arbitration it has been useful as well. I have been able to conduct evidentiary hearings in two sometimes three languages, which for very similar reasons helps me to connect with the witness or expert in more relevant ways. Of course, the use of a foreign language in a hearing requires prior approval by all parties present.
You have practiced in a variety of fields, including complex international business transactions, distributorships and licensing, commercial real estate, financial transactions, and biotech co-development arrangements. Do you have a topic-area that you find particularly enjoyable?
In both arbitration and mediation I enjoy the challenge of a complex dispute, no matter what area of law it is. If it were simple, they would not need the expertise of a neutral. Most of the time, an arbitration will not run its full course unless the legal issues are so close that both sides are convinced there is a good chance they will win. If one side expects to lose, the case usually settles. I like close cases because they challenge me to find the legally correct and fair outcome.
Similarly, in mediation I welcome the challenge of a complicated dispute, whether legally or factually or both. In addition, I don’t shy away from finding out the emotional aspects of the dispute and exploring the real needs and interests of each party. I am aware that even for a corporate officer (as opposed to an individual person) the emotional burden of a dispute can be substantial, and when I sense this is the case, I will share my empathy with that person. The most enjoyable cases are those where I can really make a difference by helping the parties find a creative solution to their dispute they had not previously thought of.
Thank you for your time, Eric.
It was a pleasure.