1. Creating Options for the Future: The Importance of Incorporating Conflict Management Systems Design Principles Early, Often and Across the Board International Investment and Alternative Dispute Resolution Symposium Washington & Lee University and United Nations Conference on Trade and Development March 29, 2010 Cathy A. Costantino, Esq. Counsel, Federal Deposit Insurance Corporation Adjunct Professor, Georgetown University Law School Adjunct Professor, George Washington University Law School

2. Purpose of Presentation To identify CMSD principles to inform the resolution of international investment disputes going forward To explore CMSD cultural issues in the international financial arena

3. Conflict Management Systems Design (CMSD) vs. Dispute Systems Design (DSD ) Conflict = difference, dissatisfaction, a process, intangible Dispute = disagreement, a product, tangible Conflicts get managed; disputes get resolved Costantino and Merchant, Designing Conflict Management Systems (Jossey-Bass, 1996)

4. Approaches to Resolving Disputes Reconciling Interests: trying to meet the needs, concerns, desires and fears – things that one cares about or wants Adjudicating Rights: looking to some independent standard with perceived legitimacy to vindicate who is “right” or “correct” Using Power: using one’s leverage to force or coerce someone to do something Ury, Brett, Goldberg (1993)

5. Stages/Components of CMSD Implications for Int’l Investments Entry and Contracting Assessment Goals and Evaluation Design Architecture Training and Education Implementation Feedback and Modification Costantino and Merchant, Designing Conflict Management Systems (Jossey-Bass, 1996)

6. Critical Components of CMSD Implications for Int’l Investments Participation Fluidity Suitability Sustainability Permeability Accountability

7. Cultural Implications Who – the players; their role; power, rank and privilege issues What – the substance of disputes/conflicts (micro vs. macro) Where – place, symbolism When – critical path, timing Why – motivation, goal, intent How – tone, pace, method, style, preferences

8. Implications Going Forward for Designing Systems to Manage Conflicts and Resolve Disputes Walk the Walk, model the behavior Watch for power, rank, privilege issues Anticipate resistance; plan for patience Involve the Stakeholders Honor self determination Accept that the invitation to design is the invitation to decline