‘5 Star Commercial Mediation.’

5 points make up the tips of a star, and 5 points make up the vertices of the inner pentagon i.e. the ‘Hub’.
The ‘5 Points’ in commercial mediation are: 
·       ‘Dynamic Commercial Drivers’ – i.e. each participant’s [‘P’s] wants, needs, priorities & reasons.
·       ‘Litigation risk’ – costs incurred/could be incurred in going to trial & publicity.
·       ‘The price of doing a deal that is enough’ i.e. the Mediation math.
·       ‘Acknowledgement of common ground.’
·       ‘Exploration of the hub to discover hidden common ground in order to close the gap & do a deal’ – see the diagram under the heading ‘Deal-Making Zone’ on the ‘Mediation of Music Disputes’ page at www.carlislam.co.uk.
See also my recent article published in print worldwide by Oxford University Press in Trusts & Trustees – ‘Mediating Probate & Trust Disputes – Process Challenges & Tools – Part 2′, in which I make the following observation about how Mediation is an opportunity to explore & discover the existence of common ground inside the Hub.
‘Think of a series of interlinked circles labelled e.g.: ‘Estate’; ‘P.1 Wants/Needs’; ‘P.2 Wants/Needs’; ‘Law’; ‘Tax-Efficiency’; ‘Hidden Commercial Value’; ‘Practical Ethics’; and ‘Inter-P Dynamics’. The alchemy in the mediation of a probate/trust dispute is to discover what lies in the centre, i.e. in that small space where these circles all overlap with each other (the ‘Hub’), because that is common ground. The Hub is also the zone in which a ‘Black Swan’ may exist. ‘Black Swans are events or pieces of knowledge that sit outside our regular expectations and therefore cannot be predicted.. … There are those things we know … Those are known knowns. There are those things we are certain that exist that we don’t know. … Those are known unknowns and they are like poker wild cards; you know they’re out there but you don’t know who has them. The most important are those things we don’t know that we don’t know, pieces of information we’ve never imagined that would be game changing if uncovered.. … These unknown unknowns are Black Swans. … Finding and acting on Black Swans mandates a shift in your mindset. It takes negotiation from being a one-dimensional move counter move game of checkers to a three-dimensional game that is more emotional, adaptive, intuitive … and truly effective.’[i]
A mediator needs to be aware of this concept and the importance of looking not only for what the P’s ‘don’t know’, but also for that what the P’s ‘don’t know that they don’t know’. …’ This the value of Mediation because no judge has the power to unlock what a trained mediator can help the partipants find and agree for themselves. That is because Mediation is a ‘process’ and not an ‘outcome’ driven method of dispute resolution which engages & involves imagination of a better future for all.
[i] Never Split The Difference – Negotiating as if your life depended on it’, by Chris Voss (2016), rh Business Books, p.216. 

A violation of International Humanitarian Law can give rise to a private law remedy actionable in the English Court

‘Law Debenture Trust Corp Plc v. Ukraine [2023]UKSC 11 – Can a threat by one foreign state [‘S.1’] to use physical violence against civilians of another foreign state [‘S.2’] and a threat  to damage property in S.2 constitute duress under English Law?’
‘Where a contract is governed by English law, the English courts can entertain the defence of duress raised by a sovereign state [S.1] based on threats by another state [S.2] to use physical violence towards the armed forces and civilians of the threatened state and threats to damage or destroy property in the threatened state. Such threats can constitute duress under English law.’ (‘Duress, Undue Influence and Unconscionable Dealing’ by Nelson Enonchong (2023) Fourth Edition, Sweet & Maxwell, p.15).
At 147, their Lordships stated:
‘In argument, counsel for Ukraine maintained that Ukraine’s case on duress was based on the fact of the threats, that is to say on the nature of the acts which were threatened, rather than on their treatment under international law. On that basis, counsel characterised Ukraine’s case in relation to the threatened use of force as being based on duress of the person and of goods. Although counsel for the Trustee understandably emphasised that Ukraine’s case had not been pleaded in that way, the characterisation of this aspect of its case as one of duress of the person and of goods can be regarded as a change in the legal analysis of the facts pleaded rather than a different case on the facts. Defective pleadings which can be cured by amendment are not necessarily struck out without affording the pleader the opportunity to cure the deficiency, and the court has a wide ambit of discretion in this regard. The same principle also applies in the context of an application for summary judgment. In the present case, any trial of the action remains some considerable way off. We are also mindful that the law of duress has been the subject of significant clarification during the course of these proceedings. With all these factors in mind, we are prepared to consider Ukraine’s case based on alleged duress of the person and of goods. Any prejudice to the Trustee arising from Ukraine’s change of tack, and its failure to argue its case on the same basis in the courts below, is capable of being addressed in costs.’
Since equitable compensation ‘is a remedy by which the court of equity award substantial compensation for loss which the complainant has suffered as a result of the defendant’s equitable wrong … [it] is available even in a transaction where no property was transferred or none is required to be returned through rescission … Equitable compensation is a remedy which may be available in its own right in the absence of rescission … Equitable compensation seeks to restore the parties financially to the status quo ante.’ (Enonchong, para 28-064). 

The Law Debenture Trust Corporation plc (Appellant) v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) (Respondent) – The Supreme Court

‘Sky News reported at 11.30am today – ‘Israel-Hamas war: UK could be complicit in Gaza war crimes, Tory MP warns

Sky News reported at 11.30am today – ‘Israel-Hamas war: UK could be complicit in Gaza war crimes, Tory MP warns – Crispin Blunt, who is co-director of a pro-Palestinian group, told Sky News he is not sure his colleagues in Westminster are aware of the “legal peril they are in”. He spoke as Israel faces criticism for ordering more than a million people in Gaza to leave their homes. The UK could be complicit in war crimes in Gaza and could face legal action if it does not do more to “restrain” Israel, Tory MP Crispin Blunt has warned. The International Centre of Justice for Palestinians (ICJP) – of which Mr Blunt is co-director – announced it has written a notice of intention to prosecute UK government officials for “aiding and abetting war crimes in Gaza.” The move comes in response to Israel’s warning for 1.2 million people living in the northern part of the Gaza Strip to immediately leave their homes and move south. Mr Blunt told Sky News he is “not sure [his] colleagues have grasped the legal peril they are in” and “everyone must act to restrain people” if they know war crimes are going to happen. “If you know that a party is going to commit a war crime – and this forcible transfer of people is a precise breach of one of the statutes that governs international law and all states in this area – then you are making yourself complicit,” he said.” And as international law has developed in this area, the fact of being complicit makes you equally guilty to the party carrying out the crime.”’

Note – ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 36 paras 158-159:
‘It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with … [and] … In addition, all Sates parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.’

So, under international law, the UK Government is under a positive duty to ensure compliance by Israel with IHL. See also my comment about International Armed Conflicts [‘IAC‘s’] and the possibility of criminal prosecutions being brought against individuals who are either arrested in the UK or extradited to the UK, to face prosecution for War Crimes, in a trial that will take place in the UK courts.

With respect to IAC‘s – ‘all states are obliged , pursuant to the Grave Breaches provisions of the Geneva Conventions, to domestically criminalise such violations, and seek out and either extradite or prosecute those violations.’ [Oxford Handbook of International Humanitarian Law (2020), by Ben Saul & Dapo Akande (Oxford University Press), p.355].

So, if any person sets foot on UK soil who was involved in any War Crime committed during an IAC, it would appear that as an individual, they are at risk of being arrested and prosecuted in a UK court for War Crimes. That would appear to include any person, who either directly or indirectly, has been complicit in a breach of IHL which amounts to a war crime.

Therefore, if, as senior foreign policy experts in the United States have warned in the journal Foreign Affairs this week, the conflict in Gaza becomes an IAC, i.e. because it escalates into a regional conflict, then it also appears to be possible, that with the permission of a future Attorney-General, private prosecutions could be brought against any individual, who does not have diplomatic immunity, who is either arrested in the UK, or can be extradited to the UK, to face charges in a War Crimes trial that will take place in the Old Bailey.


Extract from my essay – ‘Transforming Conflict Through Humanitarian Mediation & Cultural Heritage Diplomacy’ ON THE ‘Geopolitical Challenges’ page at www.diplomaticlawguide.com

‘The International Criminal Court (‘ICC’), headquartered in the Hague, exercises a complementary jurisdiction in respect of international crimes, and may take up a case when either:
1.    a State is unable or unwilling to prosecute the suspects, which include former and serving:
1.1    heads of state;
1.2    government ministers;
1.3    public officials;
1.4    military, intelligence, and police personnel of any rank;
1.5    members of a paramilitary group; and
1.6    civilians; or
2.    the Court is requested to initiate proceedings by the UN Security Council, acting under Chapter VII of the UN Charter.
The ICC is an independent international organisation, and is not part of the United Nations system. The jurisdiction of the ICC is limited to the most serious crimes of concern to the international community as a whole, including war crimes. The ICC also has jurisdiction over crimes against humanity, which include a range of acts committed as part of a widespread or systematic attack directed against any civilian population. … All war crimes are crimes for which there is universal jurisdiction, so that any State can prosecute them.’ 

The judicial gathering of evidence of War Crimes has already begun and is being reported by the UN to the International Criminal Court and to other judicial authorities.

‘There is already clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza, and all those who have violated international law and  targeted civilians must be held accountable for their crimes, the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel, said today. …

The Commission has been collecting and preserving evidence of war crimes committed by all sides since 7 October 2023, when Hamas launched a complex attack on Israel and Israeli forces responded with airstrikes in Gaza.

The Commission is gravely concerned with Israel’s latest attack on Gaza and Israel’s announcement of a complete siege on Gaza involving the withholding of water, food, electricity and fuel which will undoubtfully cost civilian lives and constitutes collective punishment.

The Commission is intent on ensuring legal accountability, including individual criminal and command responsibility. To that end, the Commission is committed to investigating current events and identifying those responsible for violations of international law on all sides, both those directly committing international crimes and those in positions of command responsibility. It will continue sharing information collected with the relevant judicial authorities, especially with the International Criminal Court, where the Office of the Prosecutor has already commenced an investigation on the situation of Palestine since 2021.

The Commission is deeply distressed by the mounting violence, and spiralling death toll and underscores the urgency for the parties involved to cease all forms of violence and ensure that civilians are protected.

The Commission urges Israeli security forces and Palestinian armed groups to adhere strictly to international humanitarian law and international human rights law.’ [The United Nations Office of the High Commissioner for Human Rights]. See:   Commission of Inquiry collecting evidence of war crimes committed by all sides in Israel and Occupied Palestinian Territories since 7 October 2023 | OHCHR

‘Volker Turk, the U.N. High Commissioner for Human Rights, told the New York Times Thursday that “the imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.” Tom Dannenbaum, an expert on siege law at Tufts University, affirmed this assessment, describing Israel’s policy as an abnormally clear-cut instance of starving civilians as a means of war, an unambiguous violation of human rights’. See: https://nymag.com/intelligencer/2023/10/the-u-s-is-giving-israel-permission-for-war-crimes.html#:~:text=Tom%20Dannenbaum%2C%20an%20expert%20on,unambiguous%20violation%20of%20human%20rights.

‘The Parthenon Marbles Dispute’ – By Alexander Herman.

‘The Parthenon Marbles Dispute – By Alexander Herman, Director of the Institute of Art & Law in London – Book Launch today at the Centre for Commercial Law, Queen Marry, University of London, Lincoln’s Inn Fields.’ –

‘If there is to be a resolution of the Marbles dispute, it appears inevitable that it will be on the basis of a compromise. If a permanent and immediate return appears impossible, so too does a simple maintenance of the status quo. Some third way needs to be envisaged.’ [Extract from, page 102 – ‘Loan, Bailment, Usufruct’].

Wishing the author, Alexander Herman, every success with the Book Launch today. This is a timely and relevant book which I think will do very well. More importantly, it will educate readers about why cultural property is important, and should be pushed up the political agenda. The legal tools and vehicles exist for doing a deal about the Marbles. This like all cultural property disputes has a political dimension, and I would argue a geopolitical dimension, because ethical settlement of a moral claim to cultural property is a diplomatic tool of reconciliation and peace nurtured through dialogue, and implemented through cultural exchange, brought about by collaboration between governments and museums. This can result in a geopolitical convergence of values. So when a journalist or TV commentator says ‘I just don’t get it!’ what they are not getting is the big picture. If that is because they only received a superficial education in Art, Cultural Property, Diplomacy and Politics, then hopefully the erudition and practical wisdom contained in this book will cast light into darkness in what is a complex and multi-dimensional debate. So, there is no excuse for politicians, TV commentators and journalists ‘who just don’t get it!’ – because they can buy and read the book!
Book – https://lnkd.in/eiCXuNiw

Mediating probate and trust disputes – Published

‘Mediating probate and trust disputes—process challenges and tools: part 2’ – My article has been published by Oxford University Press in print for distribution worldwide in Trusts & Trustees, Volume 29, Issue 7, September 2023, Pages 667–681 – https://lnkd.in/e-a658_b. There are links to the article and to Part 1 on the ‘Publications’ page at www.carlislam.co.uk. On Monday I submitted the first complete draft of my forthcoming article ‘Mediating Music Disputes’ to the editor of the Law Society Gazette for approval for publication later in the year. In parallel, I am developing a new course for presentation in person and by Zoom from January 2025 – ‘Mediating Music Disputes.’ A draft assembly of my speaking notes and material – which is an incomplete work in progress that I will revisit and complete after I have written the 2nd edition of the Contentious Probate Handbook for the Law Society of England & Wales, is available to view on the ‘Mediating Music Disputes’ page at www.carlislam.co.uk. The subjects currently included in the draft speaking notes and materrial are:
·       Litigation risk.
·       Mediation.
·       Benefits.
·       Deal Making Zone.
·       Table.
·       Enforcement under the Singapore Convention.
·       Mandatory Mediation.
·       Business Arrangements & Contractual Matrix.
·       Fiduciary Duties owed by Managers & their Companies to Artists.
·       Copyright.
·       Fair dealing & exceptions.
·       Sampling.
·       Songwriter splits & shares.
·       Trademark.
·       Ownership of goodwill in a Band’s name.
·       Performing rights.
·       Moral rights.
·       Image rights.
·       Breach of confidence.
·       Duress.
·       Undue Influence.
·       Unconscionable Dealing.
·       Restraint of trade.
·       Mediator Questions.
·       Bibliography.
·       Cases.