Arbitration Practitioners Research Articles

Article: The Crystal Ball: AI Predictive Analytics in Arbitration: Navigating Promise, Pitfalls, and Paradigm Shifts

The article discusses the increasing role of artificial intelligence (AI) in international arbitration, noting its potential to make the process more efficient and data-driven through predictive analytics and machine learning. However, AI may struggle with the complexities of arbitration, such as witness credibility and arbitrator biases, which are difficult to quantify. There are also risks like over-reliance on AI and potential impacts on due process. To responsibly integrate AI, certain strategies are suggested, such as developing ethical guidelines, enhancing AI literacy, implementing disclosure requirements, and ensuring human oversight. The need to preserve core values such as fairness, justice, and transparency is stressed. As AI becomes more prevalent, arbitration practitioners must adapt by acquiring new skills and focusing on a balanced approach that combines AI with human judgment. This balance is crucial to enhancing the arbitration process while maintaining its integrity and fairness.

Pro-Claimant bias in arbitrator selection

Abstract Recent empirical studies have confirmed that arbitrator selection affects outcomes in investor–state arbitrations. This article builds on the existing literature, relying on 48 semistructured interviews with investor-state arbitration practitioners. It makes three novel claims: (A) sophisticated counsel nowadays will take factors beyond a candidate’s appointment record into account when selecting an arbitrator. In this, a candidate’s likely ability to influence their peers’ thinking is particularly important. (B) States struggle to keep up with investors in the sophisticated process of arbitrator selection. They are frequently unable to engage counsel and select suitable arbitrators within the mandated timelines for arbitrator selection, and (C), as a consequence of the former two insights, states frequently fall into four different traps when selecting arbitrators. They appoint as their arbitrators famous jurists without significant investor-state arbitration experience, famous proinvestor arbitrators, and famous arbitrators that have publicly assumed entrenched positions and defer appointments to appointing authorities. This hinders states’ ability to effectively further their case during arbitrator selection, thus disadvantaging them in investor–state arbitrations.

Arbitrator Disclosure: What Happened after Monster Energy?

The Ninth U.S. Circuit Court of Appeals four years ago generated buzz throughout the legal community and among arbitration practitioners about the levels of disclosure to be made by arbitrators when it issued Monster Energy Co. v. City Beverages LLC, 940 F.3d 1130, 1135 (9th Cir. 2019) (available at bit.ly/43HZ5Ic).

AN EXPLORATORY STUDY OF MACAO'S ROLE AS AN ARBITRATION SEAT AND VENUE FOR SINO-LUSO COMMERCIAL DISPUTES

Objective: Over the past decade, arbitration has grown in popularity as a method of resolving commercial disputes worldwide. However, this practice is relatively new in Macao SAR. Recently, official plans were announced to make Macao as a seat of arbitration for commercial disputes between China and Portuguese-speaking countries (Hereinafter PSCs). This article is dedicated to explores the possibility of Macao undertaking and implementing such a role. Accordingly, this article addresses the following issues: What are the strengths and weaknesses of Macao as a seat and eventually as venue for hosting international commercial arbitration between Chinese and PSCs entrepreneurs? Methodology: A mixed-method approach of legal doctrinal and empirical research was used in this article. We first included a thorough study of the concept of arbitration followed by analysis of various legal journals and legislations, including Macao, China, and PSCs’ arbitration laws. An empirical research was then used to collect data by surveying and interviewing with both lawyers and arbitration practitioners from Macao, China and PSCs. Results: This article argues that the strength of Macao resides in the similarities between its legal system and that of the China and PSCs and the languages advantage (Chinese and Portuguese both official languages). In spite of this, arbitration is still relatively underutilized in the region, and there is a limited number of arbitrators and legal professionals with bilingual proficiency. Contributions: This article contributes to the identification of the opportunities and challenges that Macao faces in its potential future development as a seat/venue of arbitration between China and the PSCs.

A Party’s Failure to Timely Rely on Notorious Publications Edited by an Arbitrator Precludes the Setting Aside of an Award for Lack of Impartiality. Note on Paris Court of Appeal Decision of 22 February 2022

The Paris Court of Appeal has recently held that a party was precluded from relying for the first time before it on the arbitrator’s alleged partiality based on articles authored by third parties and published in a journal co-edited by the arbitrator, whose existence and contents were notorious at the time of his appointment. To be allowed to rely on these facts in annulment proceedings, the applicant ought to have raised them before the sole arbitrator within the time limit provided for in the ICC Rules to challenge an arbitrator. A party’s failure to do so leads to the inadmissibility of its setting aside application. For an information to be notorious, it is sufficient that it be “easily accessible”. The fact that such information is contained in a database subject to a paying subscription is not sufficient to characterise a default of accessibility for arbitration professionals. Accordingly, information contained in such a database may be considered as “easily accessible”, and therefore “notorious” for arbitration practitioners. In addition, neither the scientific work freely carried out by the arbitrator in the context of his activities as editor of an arbitration journal, nor the titles and content of the articles relied upon to seek the setting aside of the award were such as to call into question the arbitrator’s impartiality.

O‘zbekistonda xalqaro tijorat arbitraji haqida yangi qonunchilik: amaliyorning fikri

As an international arbitration practitioner, one of the initial inquiries we make when discussing the choice of arbitration seat with clients is whether the prospective jurisdiction has adopted the UNCITRAL Model Law. This question holds significant importance. We are only about 45 minutes into this conference, and we have heard extensive discussion of the Model Law already, and I think that is for a good reason. The Model Law really does reflect the state of the art in international arbitration practice as Christina Pak alluded to earlier. When a country adopts a version of the UNCITRAL Model Law as its own national arbitration law, it sends an immediate signal to investors and members of the business community that the law is a good and reliable law, i.e., the type of law that one needs to help to develop that jurisdiction as a strong seat of arbitration and facilitate the attraction of foreign investment and trade. In the instance of Uzbekistan, when practitioners in Uzbekistan and in the region and internationally ask whether the country has an arbitration law based on the UNCITRAL Model Law, of course, the answer to that question now is “yes”.

A Pathology (Yet) to Be Cured?

Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause. However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated. Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules. In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause. In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology. pathological/pathology, arbitration clause, hybrid (arbitration clause), asymmetric (arbitration clause) effectiveness principle, validity, enforcement, vacatur contractual autonomy

Article 38: The Treatment of Interest in International Investment Arbitration

Abstract Given the breadth of topics in the Articles on State Responsibility, the guidance on interest contained in Article 38 could be easily overlooked. Yet discussions on this subject featured prominently in the work of the International Law Commission (ILC) spanning nearly four decades. Article 38 is also intrinsically relevant to international investment arbitration where the coveted remedy is monetary damages. Despite this, investment arbitration practitioners only make passing reference to Article 38 without fully appreciating the history of the ILCs discussions that inform the application of this provision. Facially, Article 38 seems to provide little direction and broadly defers to the discretion of arbitral tribunals on critical issues. On closer examination, however, the final text of Article 38 itself and its Commentary as well as the ILCs preparatory works provide rich insights for those engaged in interest determinations in investment arbitration. This essay analyzes the treatment of Article 38 by investment arbitration tribunals in conjunction with the ILCs discussions on this article and documents a number of areas where divergences between arbitral awards and the ILC Articles and Commentaries have emerged over time.

The Adoption of International Arbitration as the Preferred ADR Process in the Resolution of International Intellectual Property Disputes

Abstract This article, which is intended for arbitration practitioners, demonstrates that international arbitration as a subset of the field of alternative dispute resolution (ADR) offers a useful toolkit for the expeditious resolution of international intellectual property law disputes. The article demonstrates how the theory and practice of international arbitration is particularly well poised to address some of the specific considerations and requirements of paramount concern to the international intellectual property lawyers and their clients. The article will explain how the inherent features of the international arbitration legal landscape combine to indicate that it should be considered as the preferred method of ADR and explain how each of these features can provide both time and cost efficiencies. The article will identify the legal reasoning behind the benefits inherent to choosing international arbitration and will also address those circumstances when international arbitration may be precluded or otherwise considered unsuitable for intellectual property matters. The article examines several distinct benefits that international arbitration uniquely offers to international intellectual property law users and highlights some areas of the field that require additional caution.

The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture

This article compares the new Rules of the Australian Centre for International Commercial Arbitration (ACICA) with ACICA’s 2016 Rules and those of other arbitration institutions, especially in the Asia-Pacific region. It shows how the revisions help to minimize formalization and promote efficiencies, arguably essential for arbitration’s legitimacy given that many of arbitration’s design features are traded off for an attenuated model of the rule of the law, according to a recent analysis by Singapore’s Chief Justice Sundaresh Menon. The article explains new ACICA Rules aimed at reducing costs and delays, including measures to deepen digitalization of arbitration following the Coronavirus disease 2019 (COVID- 19) pandemic and to reduce the consent-based limitations inherent in arbitration, especially for multi-party and multi-contract disputes. Other new provisions include time limits for awards, and reference to mediation, although not ultimately hybrid Arb-Med. The article also examines how the Rules balance confidentiality with transparency, including new provisions for disclosure of third-party funding. It concludes by reiterating how the 2021 ACICA Rules help meet the expectations of international arbitration users and practitioners, according to recent surveys, and link to possible further reforms to underpin Australia’s increasingly pro-arbitration culture. international commercial arbitration, Rules, Australia, Asia-Pacific, remote hearings, confidentiality, third-party funding, law reform, costs and delays

The lacking interest in interest rates: will the phase-out of LIBOR and negative rates go unnoticed by arbitration practitioners?

Abstract Interest plays a crucial role in ensuring that the compensation obtained by the winning party does not diminish throughout the many years between the breach and enforcement of the award. Despite its importance, interest is often the last element considered by arbitration practitioners, who sometimes rely on popular interest rate benchmarks that worked well in the past. However, some familiar benchmarks might no longer achieve the intended outcome. We have reviewed public investment arbitration awards rendered in 2019–2020 and identified three issues: the use of LIBOR despite its imminent phase-out, the use of benchmarks that have become negative, and the omission of interest from awards rendered in favour of respondent states. While solutions may vary, we discuss mechanisms that may be used to review existing awards, alternative interest rate benchmarks that may replace LIBOR, and floors that might be helpful to deal with negative interest rates. Arbitration practitioners regret to see it when transactional lawyers negotiate arbitration clauses as ‘midnight clauses’. However, it often escapes the arbitration community that it adopts a similar last minute approach to interest rates. It is hoped that this article might help interest rates avoid the fate of being a ‘midnight remedy’.

The Canary Is Dead: Arbitration and Climate Change

As international lawyers, arbitration practitioners are at the forefront of global issues, yet in relation to climate change and its impact on our practices, we have been slow to act. This article considers the role that arbitration should play in determining climate change disputes and the role that arbitration practitioners could play in shaping and adapting international law to respond to the climate crisis. The pandemic has driven significant behavioural change in the arbitration community. Now is the time to reflect on our practices to ensure that arbitration remains relevant and fit for purpose in a world where climate change will impact every area of our lives. Climate change, Climate emergency, Arbitration, Protocol, Investment Arbitration, Commercial Arbitration, Dispute Resolution, Paris Agreement, Greener Arbitrations, Green Pledge

Is Arbitration Helping or Hindering the Protection of the Environment and Public Health?

On the occasion of the sixth edition of the Casablanca Arbitration Days, some leading arbitration practitioners from the Middle East and North Africa (MENA) region and further afield convened to discuss an important and topical issue: ‘is arbitration helping or hindering the protection of the environment and public health?’. This conference examined the various areas where arbitration and the protection of the environment and public health interface. First, from a substantive view point, it is clear that environmental issues have become prevalent in commercial arbitration and that the latter has proven to be well suited to resolve such issues. Secondly, while some steps have already been taken in this respect, the climate change crisis requires the international arbitration community to change its ways and arbitrate in a much more environmentally friendly way. Thirdly, amidst the progressive emergence of environmental issues in investment arbitration and the responses that have already been provided by investment treaty arbitral tribunals, numerous uncertainties remain in respect of the way in which environmental issues should be treated. There is no doubt that environmental issues will give rise to intense debates before investment tribunals (and courts) and in legal literature in the near future. Finally, in addition to the protection of the environment, the arbitration community has already begun addressing (and, we would submit, successfully so) the substantive and procedural issues related to the protection of public health, in particular as a result of the COVID-19 global pandemic. This article provides an account of what was said about these various topics during this edition of the Casablanca Arbitration Days. Arbitration, Environment, Public health, Climate, Challenges, Digitalization, Disputes, Commercial, Investment, COVID-19

The World Is Not Enough*: ethics in arbitration seen through the world of film

Abstract This article starts from the playful premise that if James Bond practiced law, it would be international arbitration. The article uses the 007 metaphor and the titles of James Bond films to examine the ethical challenges that confront various actors in international arbitration. The article argues that arbitration practitioners—as they tend to the needs of their clients, their organizations, their institutions, and their own professional goals—should look beyond their most immediate, short-term self-interest so their case does not become the billboard for some endemic problem or controversy in international arbitration. A modicum of foresight might have altered outcomes in some of arbitration's most disruptive cases and sensational cases—HEP v. Slovenia, Yukos, Einser, and RSM v. St. Lucia. The article concludes with a QUANTUM OF SOLACE—those professionals active in international arbitration have it within their power and have demonstrated a collective impulse to address problems through a determined self-reassessment and internal recalibration. In conclusion, it calls on international arbitration practitioners to make that collective impulse an express commitment, at TOMORROW NEVER DIES.

Data Mining, Text Analytics, and Investor-State Arbitration

“Reading” is the primary technology investment arbitration practitioners use to engage with party submissions, prior awards, investment treaties and all other written materials relevant to the arbitration. Yet, an alternative and complementary approach to parse investor-state arbitration (ISA) texts is rapidly emerging. In what is variably known as “text mining”, “text analytics”, or “computational analysis”, algorithms rather than humans are beginning to digest written materials to extract relevant insights. What this algorithmic approach lacks in nuance (computers are bad at understanding text), it makes up for in efficiency (computers excel at crunching numbers). This chapter targeted at arbitration professionals introduces the methodologies underpinning text analytics, explains and evaluates their use cases in investment arbitration, and assesses their promises and limitations.

Courts in Lockdown: Lessons from International Arbitration

As the pandemic has closed courthouses around the world, civil justice systems have had to find alternatives to in-person hearings to avoid indeterminate delays in resolving disputes. International arbitration practitioners, driven by the commercial interests of the parties, have pioneered the techniques and technologies for virtual hearings, identifying the challenges and developing the best practices needed to support the core procedural values of civil dispute resolution. This article looks at these advances from the perspective of the participants – counsel, judges, arbitrators, witnesses, parties and the public – and considers the options that are emerging and that hold the promise to provide lasting benefits for civil justice systems.

Sociology of Commercial Arbitration: Tools for the New Times

In this study, the authors argue for a more refined methodology in research on commercial arbitration. Drawing on new developments in international commercial arbitration, they seek to create a typology of various aspects of legal conflict resolution and, as a consequence, to increase the relevance of empirical work on this topic. The article identifies three key areas of tensions, which generate new developments in commercial arbitration and cannot be addressed from the perspective of the existing sociological paradigms. First, the tension between procedural formality and flexibility can be observed, as reflected in the well-established judicialization trend, combined with a recent renewed interest in mediation and ‘soft’ hybrid procedures. Second, the confluence of global and local factors (as seen in the American and Asian ‘waves’ in arbitration) affects, inter alia, the professional culture of arbitration practitioners. Finally, the tension between public and private interests and values, which influences procedural preferences and solutions in the field of commercial arbitration, can be identified.

Conflicts of Interest in the Code of Best Practices in Arbitration Published by the Spanish Arbitration Club

This article aims at exploring the provisions on conflicts of interests of the Code of Best Practices in Arbitration published by the Spanish Arbitration Club in 2019. The Code was drafted over a two-year period and makes recommendations for arbitration practitioners, drawing on the standards and recommendations of the principal arbitral institutions, and the principal guidelines published on the subject, whilst advocating for greater transparency in international arbitration.The present article compares and analyses how the main provisions on conflicts of interest of the Code of Best Practices diverge from or resemble existing standards and guidelines on the subject.

International Commercial Arbitration in Australia: Judicial Control over Arbitral Awards

Geographical remoteness has not prevented Australia from pursuing its ambition to become a major hub for international commercial arbitration (ICA). While regional competitors in the Asia-Pacific region such as Singapore and Hong Kong have already achieved great success in the arbitration world, Australia’s ‘Tyranny of Distance’ requires extra efforts to attract ICA cases. Recent marketing from the Australian government emphasises (1) a harmonised legal framework for ICA in line with international standards; (2) sophisticated arbitration institutions; and (3) some of the world’s leading arbitration practitioners. While these factors do reveal strong potential to attract ICA cases, to ensure that this goes beyond a mere possibility, the Australian government and judiciary are making quite concerted broader efforts. The former has recently become more vigorous in marketing Australia-based ICA in and out of the country. The latter has generally tried to issue pro-arbitration judgments particularly over the last ten years, and in public speeches or publications leading judges have been actively summarising and promoting Australian developments both domestically and world-wide. However the court system has structural problems, due to the shared ICA jurisdiction of State and Territory Courts alongside the Federal Courts, compared to the unitary system in Hong Kong and Singapore. There are also persistent delays in court-related ICA matters under the IAA, even in the Federal Court of Australia. Nonetheless, perfection is never attainable. The rest of this paper argues that Australia has significantly improved legal environment for ICA in line with international standards, focusing on the main topics identified for a wider cross-jurisdictional research project: (1) arbitrator bias; (2) conflicts of interests; (3) procedural irregularities and arbitrator’s misconduct during proceedings; (4) arbitrability (objective arbitrability) (5) judicial interpretation of arbitration clauses (subjective arbitrability); and (6) enforceability of arbitral awards.

The Indian Arbitration Forum's Best Practices Guidelines for Conduct of Arbitral Proceedings ('IAF Guidelines 2018')

The Indian Arbitration Forum (“IAF”) is an association of leading arbitration practitioners committed to streamlining the conduct of arbitration in India and promoting arbitration as an effective means of dispute resolution in India and abroad. This is a first-of-its-kind initiative by legal practitioners to establish a commercial/arbitration bar in India. Arbitration in India is fast evolving as the preferred dispute resolution mechanism, especially insofar as commercial disputes are concerned. The Indian Arbitration Forum Best Practices Guidelines for Conduct of Arbitral Proceedings (“IAF Guidelines”) was prepared with a view to provide guidance on evolving best practices in the arbitral process. To clarify, if an arbitration is under any specific rules of an institution like ICC, SIAC or MCIA then such rules will be applicable and in case of conflict between this Guidelines and the rules of the institution then such rules of the institution shall prevail. IAF devised these guidelines in partnership with members of COMBAR, the Commercial Bar Association of England and Wales, and in association with Singapore International Arbitration Centre, Mumbai Centre for International Arbitration and Gujarat National Law University. The IAF Guidelines were the result of a five-step process: (i) research of existing international guidelines; (ii) preparation of a questionnaire to understand the gaps in the Indian arbitration practice; (iii) interviews with domestic and international practitioners; (iv) drafting of the guidelines; and (v) broad review of the guidelines. IAF provided the drafting team with indicators regarding the conduct of arbitral proceedings. In order to understand the procedures better, practice notes, rules and guidelines prescribed by leading arbitral institutions were studied. To reconcile the international best practices with the existing realities of arbitration in India, a questionnaire was prepared for the purpose of interviewing practitioners. This checklist was prepared with the assistance of Jasbir Dhillon QC, Rajesh Pillai and Rebecca Zaman. The IAF then identified prominent domestic and international practitioners who would be interviewed for the purpose of this exercise. These included Mysore Prasanna, Jasbir Dhillon QC, Anneliese Day QC, Ketan Parikh, Nakul Dewan, Sherina Petit, Siddharth Dhar and Georges Chalfoun. The drafting team along with IAF team members interviewed these practitioners and the responses of these practitioners received during the individual interviews were recorded for the purpose of aggregating the comprehensive data. The broad range of inputs were analysed and a draft of the IAF Guidelines was prepared on the basis of this analysis, attempting to keep a balance between international best practices as well as practical realities in the Indian context. This draft was then reviewed by legal luminaries like Justice B N Srikrishna (Retd), Justice A P Shah (Retd) including a panel comprising of the IAF members as well as other leading practitioners. After several rounds of review, additions and edits, the IAF Best Practices Guidelines for Conduct of Arbitral Proceedings was formulated into its current form. The IAF team expresses its gratitude to the Gujarat National Law University team comprising of Dr. Vikas Gandhi, Dr. Nidhi Buch and the students, Param Bhalerao, Gladwin Issac, Sakshi Pawar, Bhavya Shukla and Akshata Kumta, who were part of the drafting team as well as the above-mentioned process. Members of the IAF team that drove the abovementioned process were Sahil Kanuga, Vyapak Desai, Raj Panchmatia, Mustafa Motivala, Nusrat Hassan, Promod Nair, Tejas Karia, Shashank Garg, Renu Parekh, Meenakshi Iyer, Soorjya Ganguli, Nandini Khaitan, Neeti Sachdeva, Pranav Mago, Anish Wadia, Rishab Gupta and Manavendra Kane.