Reed Smith’s Niyati Ahuja interviews Eric Ives – Attorney Advisor, International at the U.S. Department of Commerce, Office of the General Counsel’s Commercial Law Development Program – about his global work in advancing Alternative Dispute Resolution (ADR). Eric shares his journey from private practice to public service, discussing the unique challenges of adapting international ADR standards to diverse markets in Central Asia, Pakistan and the MENA.
Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.
Niyati: I’m Niyati Ahuja, Senior Associate in the New York office of Reed Smith. I work in the Global Commercial Disputes Group and International Arbitration Group. I'm qualified to practice law in New York and India. I do both investor state and commercial arbitration work, as well as some white-collar investigations and commercial litigation work in the New York Court. Today, we have with us Eric Ives. Eric is an attorney advisor international at the U.S. Department of Commerce's Commercial Law Development Program, where he leads the agency's ADR development work in Central Asia, Pakistan, and MENA, and works bilaterally with Uzbekistan on finance and digital trade law. Prior to joining the CLDP, Mr. Ives was an associate in White & Case’s International Arbitration Group in New York, where he worked on international commercial and investor state arbitrations. He advised corporate and sovereign clients across a range of industries, including insurance, pharmaceutical, telecommunications, and post-M&A disputes under all major institutional rules. Thank you so much, Eric, for joining us today and sharing your career path, what you’ve discovered, because you did make a switch from a big law firm to the government. So I'm very, very interested in what you have to say about all the questions we have for you.
Eric: Niyati, thank you so much for having me. I'll just say briefly at the outset that I'm here solely in my personal capacity and anything that we touch on today is solely my own opinion and doesn't constitute the opinion of the US Department of Commerce or the Commercial Law Development Program as an agency. And it's great to be here on the Reed Smith podcast. Looking forward to our discussion today.
Niyati: Getting right into it, Eric, tell me, could you share a little bit more about your role as an attorney advisor with the Commercial Law Development Program?
Eric: Yes, absolutely. I mean, as much as you can put in a bio, the work at CLDP is far ranging, covers the globe, and it covers pretty much every area of commercial legal development. The agency is about 30 years old. It was founded post-fall of the USSR to sort of create favorable investment environments for post-Soviet states. Now, 30 years on, that work has expanded to, well, around the world and covers pretty much every single area you can think of. In particular, coming from an ADR background, I focus on ADR law development in Central Asia, Pakistan, and MENA. So that's contract enforcement rights, and that sometimes veers into rule of law and access to justice issues as well. Arbitration, mediation, I think we often think of them as commercial topics, but they also touch public rights as well. And so it's actually been quite nice to see ADR in these new circumstances. Aside from alternative dispute resolution, I also cover finance law and digital trade issues in Uzbekistan on a bilateral basis. Central Asia is incredibly interesting to work in. It sits the middle of a lot of different regulatory approaches, and they're really choosing their way forward. So CLDP tries to show them what the American experience has been, particularly for their capital markets, their commodities markets, and digital trade regulation.
Niyati: Well, that's very interesting, Eric. But I was curious, and I'm sure our other listeners are as well, very curious to know what led you to transition from private practice, which was at a big law firm in New York to a government role with CLDP.
Eric: Yeah, I, I have to say I sort of cheated, I acted as an ADR expert, sort of an intermittent subject matter expert with the commercial law development program in Central Asia, specifically, while I was still in practice. So over the course of about a year and a half, I gave sort of lecture series to Viz Moot students. That's the Willem C. Viz International Commercial Arbitration Moot Court. For those who don't know, it's an international commercial arbitration competition where about 350 universities compete on a mock problem. And a part of CLDP's portfolio is, of course, educating law students around the world on this very fundamental ADR experience that many people have. So as part of that program, I gave a series of lectures in, well, in Bishkek, in Dushanbe, and in Latvia over the course of about a year. And I was like, shocked that the US government was one doing this kind of work. And two, that I could maybe parlay a commercial law background into the public service. You know, for me, that was like an opportunity that was too good to pass out.
Niyati: Yeah no that's that absolutely I think you made a great it seems like you're very happy with with the kind of opportunities you have and it seems like it's very wide-ranging which is excellent as a lawyer. Just out of curiosity how does managing ADR portfolios in regions that you are capturing Central Asia, Pakistan and MENA differ from your work as an associate at a big law firm in the US or just generally US versus different regions, but also working as a US government persona?
Eric: Yeah, it's a very different practice. At a firm, you know, you're constantly working on specific cases with very clear win-lose outcomes. In that sense, the stakes are pretty well known. In this role, you know, it's sort of about conceptualizing a larger theory of change and sort of taking it step by step, and executing on it. So that takes both a lot of planning and then very clear idea of how your logic model is going to flow, you know, what specific steps do you need to do to get a country, for instance, from, you know, actually, I shouldn't say this as an American, but an outdated arbitration law, for example, to you know, a modern international best practices piece of legislation. For a lot of modern commercial law issues, what works is pretty clear, like what encourages FDI to enter a host country is fairly clear. But getting to that outcome is very different in every jurisdiction. It's going to be very different in Uzbekistan as it is from from Pakistan, as it is from from from North Africa. So that's, I think, the biggest difference is that you're shifting from a case based approach to practice to sort of a larger systematic legal change practice.
Niyati: Yeah. And so since we were just talking about how it was working in private practice, are there any specific skills or lessons that you learned in your time in private practice that you find particularly useful or helpful in your current role?
Niyati: I’m sure the experience obviously comes with you, but are there any specific skills or lessons that you learned in your time?
Eric: Yeah, absolutely, Niyati. I'll say there's no substitute for hard work, for diligence, no matter where you are. I think at a very basic level, you can use responsiveness from a law firm to your advantage in the public sector, and you can combine it with a bit of diplomacy, especially when you're working with your partner governments to drive some sort of larger change forward. I think even just this very basic sort of approach to work shows your commitment, especially in jurisdictions where things can take time, but if they see the Americans very eager and moving fast, I think it helps generate momentum on their end.
Niyati: Yeah. And could you also share any experiences where your private sector or working in a private practice background provided insights into local or internationally in your practices? I know as arbitration practitioners, we often have to kind of understand what laws are applicable in terms of especially when there are investor state disputes, we have to understand how the state functions and what actions it should not have taken, or it shouldn't have taken, and it did not. So curious to know from you if there's anything specific that you could share with us.
Eric: Yeah, for sure. I will say at the outset, I'm not allowed to advise on any individual case, much as we do get the crazy factual matrices sent our way, nonetheless. In terms of actual skills from a law firm that I think have been a huge benefit, actually doing commercial mediations has been the biggest advantage. So in private practice, I worked on a few high value international commercial mediations. And as an agency, we are actually seeing a ton of interest in developing mediation writ large sort of new mediation regimes, and in particular, to develop a sort of group of qualified commercial mediators. And I think experience with those kinds of disputes sort of gave me a baseline to work backwards from. And I think it also sort of dovetails with the larger shift in even just the ADR industry away from arbitration and towards mediation. There will always be a place for arbitration, but I think the use of mediation is just going to see more use. So I'm happy to see that sort of on the forefront in the development discourse.
Niyati: Yeah, as an arbitration practitioner, I take offense, but I'm sure, no, I'm kidding. But it is true. There's several modes of, I mean, I'm seeing a lot of clauses now, not a lot, but I am seeing more and more clauses which have sort of a prior mediation requirement before going into the whole arbitration process. And maybe that is going to be how future contracts are drafted, and I think in two-stage processes. Just just delving into because you grew you're American obviously and you practice in the US and now you're looking into regions which have a different traditional and cultural background so so i am curious to know how does the diversity of not just the cultural but also ADR traditions worldwide impact the work you do.
Eric: Yeah. I think we say ADR as if there's this uniform DR to which we are referring, to which arbitration and mediation really are alternatives. But I mean, there really is a huge diversity of legal traditions where informal dispute resolution, i.e. without recourse to like a sitting judge sort of impaneled under sovereign authority, exists. You know, for instance, like the Jirga tradition in Pakistan is like, it's a clear example, right? Like it's a community leader that is sort of known, and he acts as a mediator, quasi-arbitrator for a dispute. And because of the societal pressure, his dispute is sort of binding, to say nothing of a more formal process. So in that sense, I mean, Pakistan has a, quote, ADR mechanism, but our challenge is really helping identify how new forms of dispute resolution can supplement what's already on the ground.
Niyati: Yeah, no, I completely, I think there's several of those kinds of processes, which are obviously not legislated or there's no statute for that, but there exists, and especially in more rural areas in India, there are many such instances. Could you share with us what unique challenges you face in introducing international best practices in ADR, particularly after working in an international law firm setting? So you're seeing what works and doesn't work and you obviously want to guide or at least share what you have learned. So could you share with us what challenges you face or you are facing?
Eric: Definitely. I'll note two. First, I think the market for international disputes is competitive precisely because it is very international. You know, as we're trying to build up domestic capacity to take on an international arbitration caseload, there are already tried and true international institutions that are working in these regions to great effect. So essentially, we're trying to help new entrants get into this market. And that just has regular commercial challenges, you know, training your people, case management fees, making them commercially sustainable. That's always a priority for us. And we're constantly reminded that we're entering or helping these entities enter a very hot market already. Second, this is more of a normative point. I'm always mindful that ADR is a field that's pretty amazing because of its diversity. And that like what we think of as international best practice might not be the best practice necessarily. Or it could be that international best practices could be better. And I mean, on some level, that's actually like, like a party autonomy thing. Like, what is really the best part about ADR is that it's people tailoring a dispute resolution process to their needs. And so we can say there's an international best practice. But when you localize it, some things might just make more sense in a particular circumstance. Yeah, so I'm always mindful of that.
Niyati: Yeah, no, and what works for one country might not work for the other country. And what they're probably willing to accept might not be acceptable to another country. I'm sure you have to face a lot of that. But going to my next question, are there any instances in your work with the CLDP where you've seen ADR directly benefit communities that might not have had access to traditional legal avenues?
Eric: Yeah. So CLDP focuses on commercial disputes, being the commercial law development program, but it's hard to really silo those off. Alternative dispute resolution mechanisms also implicate rule of law issues and access to justice issues. So it's very common that you see ADR benefiting communities that aren't necessarily commercial in nature. For instance, we're working on a pilot program for land and marital disputes. And the idea there is that we're building capacity for mediators who will ultimately do commercial cases, but are cutting their teeth on the largest number of cases that are coming through their court system. So these communities get a quicker decision. They get access to a competent mediator who can hear sort of their concerns and help them find a workable solution. And then the mediators get exposure, get case management experience, and ultimately will become better able to serve the commercial community as well. So that's a, I mean, that's a nice incidental benefit.
Niyati: That's very interesting, Eric. So in these cases, is the mediation, I guess, the conclusion of the mediation or whatever it leads to the document, is that a binding document? Because that's the reason why practitioners such as myself say arbitration is better because the award is final and binding, is compared to mediation where it may not be final and binding.
Eric: Yeah, absolutely. Depends on the local law. But in this particular circumstance, the local law would make it binding. As if a contract concluded between two parties.
Niyati: Yeah, that's interesting. That's also very useful to get things done quicker than it would in using a different process. So this is an interesting question, kind of flowing from a few questions that we've discussed already. How does your work in this area contrast with the way ADR is viewed or applied in corporate settings? It could be through the company's perspective, it could be through a law firm's perspective, but how does it really contrast? Because you've seen both now.
Eric: That's a great question. I think for me, it's been really interesting to learn how private industry and its needs have driven the development of ADR on the ground. I'll go back to Pakistan as an example. You know, in Pakistan, your engineers on a construction project are much more involved in contract drafting than one might initially think. They're much more front and center. And really, they bring in the lawyers to sort of like draft up the document in a perfunctory sense, not in a substantive negotiation sense. And so in that sense, the lawyer's function is really secondary. And I sort of see that as industry's pragmatism driving the sort of ADR ecosystem. In that sense, the role of the engineer in an ADR setting is much more forward, just because they were the ones who actually sort of drafted those documents. For the government perspective, I think this goes back to what we were just talking about. You do see a lot more public interest angles that relate to ADR. Economic development is, I think, a win-win-win. You know, it aids both the US government, it aids the local economy, and then it also has incidental benefits to other foreign investors in a country. But from the government perspective, you know, they're often dealing with very bread and butter issues that even predate economic development. Access to a court, having a functioning court system that isn't, you know, where it doesn't take 10 years to get a case resolved, you know, and really wrestling with the role of the judiciary under that kind of strain. And I think that has to take priority over economic development, even though that might be, from our perspective, the primary logic.
Niyati: Yeah, and I think India is a really good example. I don't know if you've followed, but it followed the progress of ADR in India. A lot of the disputes, obviously, they used to take 10 years to get decided in court settings and I'm seeing so much more domestic arbitration now it's not international arbitration it's just a lot more domestic arbitration and it's faster parties are choosing it in their contracts so so it is i think there is some sort of way to to keep developing that and, maintain the progress, which kind of gets a little bit stalled if the justice system is taking too long. So, Eric, for my next question, I want to understand from you, in what ways do you think your international law firm experience specifically regarding these international best practices, how did it influence your perspective on implementing these practices globally? Or if it did not to say so.
Eric: I’m all on board with mediation. I think, for me, it's a great tool, and it's an amazing expression of party autonomy, and it's also incredibly relevant and directly helpful.
Niyati: Yeah. No, I see your point, but I am a little bit concerned, and we're yet to see it, right? If mediation becomes as mainstream as arbitration, maybe it will lead to an elongated process. But as you see it right now, you see it as a quicker, more direct, straightforward approach to mediation. Is that why you think there is much more room for mediation?
Eric: I think it's a bit more nuanced than that. I think having a forced opportunity for mediation both gives parties an off-ramp technically in the process, and it also gives them a negotiation signaling function that I think would result in far more settlements, even if not mediation agreements concluded at the end of the mediation. I think it really allows parties to put a very candid assessment of their own position forward sooner that would prevent full-scale arbitrations from going all the way.
Niyati: I’m going to ask you a question that you probably dealt with in your prior practice. What do you think about the cooling off period in treaties? Because that is supposed to kind of do what you're just mentioning, right? It is supposed to give parties a chance for six months to cool off and try to get into settlement, in good faith, settlement negotiations to reach a conclusion of the dispute or some sort of amicable resolution. So would you think it's comparable or not really?
Eric: So cooling off periods, I think, do something similar, but a bit different. They give an opportunity for settlement negotiations. However, I think just having that six months doesn't really change the underlying problem of misaligned incentives, especially in the disputes with states period. You know, at that point, that six month period, you're probably going to have government ministries who either don't want to settle for political reasons or can't really justify paying out a settlement sum to their sort of political chain. But if you were to use that cooling off period to sort of impanel, for instance, as I understand is common in Latin America, a neutral sort of panel of dispute resolution professionals to give you a sort of neutral case assessment or an early case assessment even, I think that might change that dynamic a little bit. So yes, yes, it functionally does the same thing. It provides another opportunity, another off-ramp to the dispute, but only, I think, if it's used sort of effectively, just taking into account what I think of as misaligned incentives.
Niyati: Yeah. I mean, also, it's maybe not incentivizing them to reach an amicable resolution as much as we would like to, or the treaty drafters would have liked to, right? So maybe there's a misalignment, as you were mentioning, of incentives or the need to reach an amicable resolution, Because oftentimes, even after the notice period, the parties don't end up settling. I'm sure you've seen that, especially in a dispute with the state. So my next question to you is, in your view, how do you see ADR evolving in the next decade? And how might that impact both private sector practices and government initiatives?
Eric: Yeah, question as old as time. I think we were just touching on it, if not circling it. I think full-scale arbitrations are quite expensive and prolonged. There will always be a role for them. There will always be disputes that cannot be settled. But I would expect additional ADR-like off-ramps, for instance, mediation, dispute boards, that kind of thing, to become more common as standard course in private disputes. For government initiatives, court case backlogs, they are an evergreen issue, and they require mechanisms to clear the dockets. I think ADR clearly plays a role in that. Even if you look at even the experience of the United States, it's been effective. It's been hard fought, but it's been effective. I think that definitely has a role.
Niyati: Yeah, I was just going to ask you in your experience, do you think US has been successful? Because it has been trying to actively implement some sort of programs like that. So, Eric, since you have made that transition from private practice to more of a public service, public sector role, what advice do you have for those interested in making a similar transition? Or do you think it's worth it? Do you think it was a great move? Do you think there are some challenges or some kind of pros and cons that people should keep in mind while trying to assess if they want to make that move or not?
Eric: Definitely. In terms of advice, I would say, keep your eyes open. I found this opportunity simply by volunteering through a pro bono opportunity at my former firm. And in addition to keeping your eyes open, I think, you know, keep your mind open a little bit. Think about the larger ADR environment in which every single arbitration really, really takes place. Cases are really the expression of that larger system. And if you can start thinking about like, oh, where does this case actually come from? I think it's you very, very oftentimes find an underlying economic initiative by public sector actors, where you can say like, oh, well, I was an arbitration practitioner. But in fact, it was about this substantive area of law that's actually very relevant. And there's a there's a public entity that's that's doing that that's trying to encourage that. In terms of if it's a good move or not, it's definitely fun. It's definitely an adventure. You know, you're constantly meeting people from around the world, and learning both new areas of law and then applying sort of tried and true lessons from your own legal practice. Lifestyle wise, it's a bit of a shift. I never really know what time zone I'm in anymore. I think I'm currently getting over jet lag from Central Asia.
Niyati: Do you think it has widened the scope of the kind of practice you used to have? It seems like it's a little bit different. It's a little bit wider. It makes you think a little bit more about the end goal, which is either resolution or implementing and generating policies, which are going to help with the whole ADR mechanism on the whole.
Eric: Yeah, I think that's just right. In terms of seeing the larger dispute context, right now on the front end of the disputes, I'm sort of seeing, oh, well, these are the US companies that are looking to invest in this jurisdiction, and here are the legal challenges that they're facing. And in my mind, I'm constantly thinking like, that's a treaty dispute, that could be a treaty dispute, that that could be another one. And so it really just is on the like dispute prevention matrix. Which has been such an interesting perspective, because as an associate, you know, I left going into my fifth year. And I think at that point, you're really just brought in on the back end. Like there's no possibility for settlement. There's really no there's no way forward but this arbitration. And now I think like dispute prevention, dispute avoidance and off ramping are much more top of mind.
Niyati: No, I totally get that. I see how clients are also probably, clients as in firm clients, are probably more interested in dispute prevention. Everybody wants to keep operating, keep moving forward. So that's definitely a priority for companies as well as governments, I think, that nobody wants to get bogged down by a new treaty dispute, right? So on work as we're coming towards the end of this podcast, Eric have you had a mentor or inspiration in or outside the arbitration field that you can share with us?
Eric: Oh I love that question. Can I give you two?
Eric: Okay because I definitely have one in the arbitration world and then i also have one outside but I feel both deserve mention. I would call a partner of my former firm, Sven Volkmer, a mentor, like, like if you close your eyes and picture like international lawyer, that's who I picture. And he's a great rock climber, which I connect with on a personal level. And outside of arbitration, my aunt, Colonel Karen Lloyd, has been a huge inspiration to me professionally. She was actually among the first army aviators. She flew helicopters in medical evacuation, like when it wasn't really common or yeah, like even a possibility. Yeah, she's really a trailblazer. And I, yeah, she gave me a lot of professional guidance in my life. Yeah. And she also then like went on to go and run the Library of Congress's like the whole operations department. For the non-US listeners, that's like, I don't know, it's this amazing library that provides all the research services to our parliament, our Congress. Yeah. And she ultimately ended up leading its Veterans History Project. So I think she's an inspiration to me.
Niyati: Those are both very cool people. I’m glad to hear that if you close your eyes and you think of somebody who's an international lawyer that's a partner at your former law firm.
Eric: No no go look up a picture of him. I swear you'll you'll be like oh I get it.
Niyati: I will I will right after. So last question before we let you go, Eric what is one quote that has left an impact on you or if you have an original one that you follow or just something that's kind of like at the back of your mind as you progress, I think both in your personal and professional life because as lawyers it's it's hard to really separate your professional from your personal life.
Eric: It's too true. That's too true. I'll give you a professional one and a personal one. Professionally “account for every comma.” It served me well when you do that final proofread. And on a personal note “attitude is the difference between an ordeal and an adventure.”
Eric: Fun fact, that's my aunt's email signature. So I see it every time she emails me.
Niyati: Love that. Why are you emailing your aunt? Text her.
Eric: She doesn't. She texts a little bit.
Niyati: No, I'm just kidding. Thank you. Thank you so much, Eric, for your time today. Thank you to all our listeners. If any of our listeners have any questions for me or Eric, please don't hesitate to reach out to us.
Outro: Disputes in Perspective is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's litigation and dispute resolution practice, please email [email protected]. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.
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