Arbitration Practitioners Research Articles

No Sanctions Is Not a Deterrent against Production of Useless Documents

The existence of a right to a full discovery which has become a practice in several jurisdictions, is seen by its opponents as a paper invasion. As arbitration scholars and practitioners well know, a lively debate has been going on about the discovery of documents.

Pour convaincre l’arbitre

This paper, given the « Ciceronian » title « To convince the arbitrator », is very unlikely to offer new guidance to international arbitration practitioners, such as lawyers, arbitrators and legal experts, who will themselves have already experienced efforts to convince an arbitrator in arbitral proceedings. Its humble objective, apart from offering some entry-level instruction to « juniors » about to take their first steps on the way to becoming seasoned professionals in the field, is primarily to record in writing, in a methodological form, what remains today a part of an oral tradition: the methods and experience of all those who engage in the intellectual combat of arbitral proceedings. For teams of lawyers, it also provides an insight into the likely reactions of the arbitrators they appear before, reactions which will not necessarily be those that they expected when they devised their litigation strategy. This article also has the virtue of systematically comparing Statebased and arbitral proceedings so as to identify and explain their similarities and differences. Finally, in the spirit of the great French jurist, Jean Carbonnier, this paper aims, by building on sociological considerations, to reflect on the practice of arbitration law and explore ways of making it even more effective. The study finds a natural division into two parts by focusing on the behaviour of first the lawyer and, second, the witness; the two main protagonists in arbitral proceedings facing private judges whom they must convince using didactic and rhetorical tools.

The IBA Guidelines on Party Representation in International Arbitration - Levelling the Playing Field?

On 25 May 2013 the International Bar Association Council adopted the IBA Guidelines on Pgrty Representation in International Arbitration. This relatively short document responds to the increasingly frequent pleas made by practitioners for guidance on the ethical standards applicable to party representatives in international arbitration. The IBA Guidelines have already generated substantial interest within the arbitration community. This article considers the background to the IBA Guidelines, the difficulties which arise in relation to the ethical conduct of counsel in international arbitration, and specific practical issues which face arbitration practitioners such as the application of multiple ethical standards ('double deontology') and the perceived proliferation of so-called guerrilla arbitration tactics. It also reviews previous attempts to codify ethical standards by leading practitioners such as Cyrus Benson and R. Doak Bishop, and compares them to the approach adopted in the IBA Guidelines. The article closes by considering the new IBA Guidelines in detail, critiquing its provisions, considering what has been omitted and draws tentative conclusions about the likelihood of the IBA Guidelines proving to be a successful addition to the 'soft law' of international arbitration.

Bias in Arbitral Decision-Making: Rescuing the Mentschikoff Archives from a Half Century of Oblivion

The archived raw research results of Soia Mentschikoff's experiment on arbitral decisionmaking are analysed. This analysis could be of interest to the arbitration practitioners and those interested in how arbitrators arrive at their decisions. It questions the objectivity and possible bias of the arbitrators, highlighting the subjective factors that affected the arbitrators in their decision-making and decision-consensus processes during the experiment. Mentschikoff's methods for conducting the experiment are discussed to suggest the possible framework for future research projects. Moreover, other issues raised in the experiment are introduced, serving as a possible basis for further research undertakings.

American Diversity in International Arbitration 2003-2013 (Pre-Publication Draft)

When I was approached to return to issues of diversity in international arbitration, I decided to expand on the methodology I used in the 2003-2004 period in two earlier articles on American minorities in international arbitration. This work is an update and expansion of the work that went into my articles Benjamin G. Davis, The Color Line in International Commercial Arbitration: An American Perspective, (presented at the American Bar Association, Dispute Resolution Section Mid-Year meeting April 16, 2004), 14 American Review of International Arbitration (Columbia University) 461 (2004), Benjamin G. Davis, International Commercial Online and Offline Dispute Resolution: Addressing Primacism and Universalism 4 Journal of American Arbitration (Penn State Dickinson/Tulane) 79 (2005), and in the ABA Dispute Resolution Magazine (forthcoming Winter 2014). I examine American diversity in international arbitration across the broader target population for the ABA’s Goal III diversity efforts: American women, American minorities, American lawyers with disabilities, and American LGBTQ lawyers. These four groups are the target population described in the American Bar Association’s Goal III: Eliminate Bias and Enhance Diversity. In addition to sending a survey to 413 international arbitration practitioners of whom I was aware or to whom I was referred and listservs, I contacted a diverse group of international arbitral institutions around the world from some of whom I received data.

A Fabulous Discovery: The Arbitration Offer under the Organization of Islamic Cooperation Agreement Related to Investment

Concluded under the auspices of the Organization of Islamic Cooperation (OIC), the 1981 OIC Agreement on Investment has not attracted the attention of investment specialists or arbitration practitioners. However, this Agreement is the first multilateral agreement on investment that provides for an offer to arbitrate investment disputes. The purpose of this article is to analysis the investor-state arbitration provision provided in Article 17 of the OIC Agreement. The author demonstrates that the OIC Agreement provides for an arbitration offer to settle state-investor disputes by arbitration and this offer is operational until the establishment of a special organ to settle these disputes. A recent arbitral decision confirmed this conclusion. The arbitration offer under the OIC Agreement is a fabulous discovery that will open a new perspective to arbitration and to investment in the Islamic world.

The Culture of International Arbitration and the Evolution of Contract Law by Joshua D. Karton

The Culture of International Arbitration and the Evolution of Contract Law by Joshua D. Karton Published by Oxford University Press, 2013, ISBN 9780199658008 (296 pages) Some say that seeing yourself described flatteringly in print is the number one reason to read a book. If so, members of the international arbitration community are going to queue up around the block to get their hands on Professor Joshua Karton's new publication, ‘The Culture of International Arbitration and the Evolution of Contract Law’. Karton, who teaches at Queen's University in Ontario, takes a sociologically minded lawyer's look at those of us who practice international commercial arbitration, as counsel and/or arbitrators or as commentators, and describes what he finds to be our ‘culture’. In short, he likes what he sees: a pattern of four shared values that sound pretty darned good, namely respect for party autonomy, the service of business, neutrality and internationalism. Karton goes further, however, and argues that this culture is leading to substantive arbitral interpretations of contract law that may differ from judicial interpretations. Whether the evidence supports that leap will be the subject of debate among his readers. Karton's book takes off from the pioneering work on the sociology of international arbitration by Yves Dezalay and Bryant Garth in their 1996 book, ‘Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order,’ which discussed the ‘symbolic capital’ (the recognition that successful members of a community receive from the rest of the group) found among arbitration practitioners. Like Dezalay and Garth, Karton conducted in-depth interviews of a cross-section of the relevant community, using a rather open-ended series of questions to see what themes emerged. He describes this as ‘theoretical sampling,’ in which the researcher looks over the data he has collected (here, from just twenty anonymous interviewees, all either full or part-time arbitrators) ‘based on whether the data will help to identify and describe social norms, and not on the basis of …

Time and Costs: Issues and Initiatives from an Arbitrator's Perspective

Arbitration practitioners and clients frequently raise concerns about the time it takes to carry out arbitration proceedings and the costs incurred in the process. This note addresses two issues in the ‘time and costs’ conundrum and suggests some practical answers to address them from an arbitrator’s perspective. In particular, this note addresses: (i) agreements on timing between counsel to parties and (ii) the justification of the time spent by arbitrators on a case. The first issue arises because of the excessive time that certain arbitral procedures can take. This excess is sometimes due to arbitrators, but in most cases it is due to the parties. Barring exceptional circumstances, there is no justification for an agreement by counsel allowing, for example, that a Statement of Claim be filed in six months and the Statement of Defense six months later. And what should one think about an agreement made in November 2012 for a hearing in December 2016? While such scheduling agreements may be due to the heavy workload of counsel, they could also stem from the desire to increase billable hours. There may be various reasons why the parties’ actions can protract the proceedings, but agreements reached by the parties—and more precisely, their counsel—on the conduct of the arbitration are an increasingly frequent cause of delay. This timing issue is a platform for the first initiative: for arbitrators to be less laissez-faire with respect to the scheduling of the procedure by the parties’ counsel. Party autonomy is a good thing, but it may well have reached its limits. Arbitrators should rather actively inquire with counsel why such extraordinary periods of time are necessary. An effective measure—which the author applies in practice more and more—is to require the presence of senior management or senior in-house counsel at the first procedural meeting. Magic occurs when the Presiding Arbitrator inquires with counsel why he or she needs six months to prepare the Statement of Claim. The second issue concerns the justification by the arbitrator of his or her time spent. It is a fact that nowadays virtually all institutions remunerate arbitrators on the basis of the number of hours that they serve. The American Arbitration

The Ten Commandments of Written Advocacy in International Arbitration

International arbitration presents special challenges for written advocacy. This short article draws upon ancient wisdom and reviews ten practice points for better persuasive writing in international arbitration. During an excavation at the ICC Court of Arbitration’s headquarters site in Paris, workers uncovered a stone tablet buried under boxes and boxes of petrified arbitration pleadings and exhibits. A team of archaeologists worked for months to decipher and then fully grasp the text of the tablet and its significance for international arbitration practitioners today. What follows reproduces the text of that stone tablet, with annotations provided by the commentator.

Letters from Vienna: Reflections on the Coffee House Debate on Whether Arbitration is Appropriate for the Resolution of Mass Claims in the Aftermath of the US Supreme Court Decision in At&T Mobility V. Concepcion

Just ten days before the US Supreme Court rendered its decision in AT&T Mobility v. Concepcion, a panel of distinguished arbitration practitioners met in Vienna on 17 April 2011 to debate hypothetically whether 'arbitration is appropriate for the resolution of mass claims.' The ICDR and SCC jointly-sponsored event successfully tackled 'the proliferation of mass claims systems' and subsequent efforts by legislators and arbitration institutions 'to provide models for the resolution of mass claims.' This paper annotates the debate and provides a commentary on the expected developments after the seminal decision rendered by the US Supreme Court.

Discoverability of Communications between Counsel and Party-Appointed Experts in International Arbitration

It is common for parties in international arbitration to engage and present experts to testify on technical matters, industry custom and legal issues.1 It is also common and generally accepted that a party's counsel will work closely with a party-appointed expert, discussing substantive points of an expert's opinion, and providing comments on drafts of an expert's report, at least as to format, language and style.2 Cautious counsel in international arbitration wonder whether their written communications with an expert, including drafts and mark-ups of the expert's report, may be subject to production to the other side and to the arbitrators. To answer this question, we reviewed the disclosure practice in numerous unreported cases and we submitted questions to a broad range of international arbitration practitioners and arbitrators from varying legal backgrounds and regions.3 We also reviewed written authority on the issue. In this Article, we seek to distil these sources into a summary of the prevailing practice and to offer guidance to practitioners. We also examine the trend that has led some common law jurisdictions to permit more extensive discovery of counsel-expert communications in the context of domestic litigation, and consider whether such an approach is desirable in international arbitration. We conclude that it is not. ### (A) The Presumption of Non-Discoverability of Counsel-Expert Communications Formal international guidelines on the discoverability of counsel-expert communications are rare.4 National rules applicable to national court proceedings, where they exist,5 vary widely and are, in any case, inapposite to international arbitration.6 Our experience and our survey nonetheless show shared expectations about the discoverability of counsel-expert communications in international arbitration. An overall presumption of non-discoverability, with certain common exceptions, can be discerned.7 Production of documents reflecting such communications is rarely sought – almost all of the arbitrators questioned on the subject replied that they had never faced the …

Recognition of international arbitration in Ukraine in figures

Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine's image of a not entirely arbitration-friendly jurisdiction is "promoted" with common thought about problematic enforcement of arbitral awards in Ukraine. However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper "Ukraine. Arbitration-friendly jurisdiction: 2011-2012 statistical report".

Sailing the Muddy Waters of Arbitration in China

This paper intends to bring international arbitration practitioners’ attention to a certain number of key aspects of Chinese arbitration. After a brief but necessary introduction of the (I) Chinese arbitration legal framework, this paper will examine how practitioners shall address the (II) unsettling rules governing the validity of the arbitration agreement under Chinese law, the (III) absence of the competence-competence principle, the (IV) disturbing distinction between domestic and foreign-related awards, and the (V) issues relating to the enforcement of foreign-related and foreign awards in the PRC. Finally, the presentation of this practitioners’ guide to arbitration in China would not be complete without a section on (VI) CIETAC arbitration.

Facilitating Settlement at the Arbitration Table: An Empirical Examination of Views on Settlement Practice Among Arbitration Practitioners in East Asia and the West

This paper presents an empirical examination of how international arbitrators in East Asian and Western countries view the goal of settlement in international arbitration. The result of a 115 person survey and 64 follow-up interviews shed light on the underlying cultural attitudes and approaches to settlement in international arbitration as practiced in diverse regions. To date, most research on international arbitration has focused exclusively on Western models of arbitration as practiced in Europe and North America. While such studies accurately reflected the geographic foci of international arbitration practice in the mid-20th century, in recent years, the number of international arbitrations conducted in East Asia has grown steadily and on par with growth in Western regions. The findings indicate that arbitration practitioner’s perceptions of the importance of information sharing in encouraging settlement as well as the simultaneous attention of both parties to the dispute demonstrate a high degree of convergence across regions. At the same time, regional and socio-economic distinctions are reflected in varying arbitrator perceptions regarding the arbitrators’ role in settlement, whether settlement is regarded as a goal in arbitration and the types of efforts made pre-arbitration to settle disputes. In particular, arbitrators working in the East Asian region regard the goal of facilitating voluntary settlement in the context of arbitration with greater importance and generally make greater efforts pre-arbitration to settle disputes as compared with counterparts in the West.

Arbitration recontextualized

ABSTRACT: One of the cornerstones of international commercial arbitration has been its private character and implied duty of confidentiality in the proceedings. Although arbitration hearings are certainly closed and private, it is considered more questionable that the process is confidential. The increasing demand for more open communication is paving the way for a growing tendency for the parties to disclose to the media not only the facts of arbitration but also, and more importantly, their arguments. This study investigates the nature and function of publicity of arbitral proceedings through the analysis of corporate claimed performance and the media perception of that performance in a commercial dispute which had a great impact in the public sphere. The data gathered comes from the companies’ web pages and online media reports, commentaries and blogs, as well as insights from arbitration practitioners. The main argument rests on the claim that arbitration cases are publicized by the parties as part of their corporate communication strategies more with a view to protect their interests and reputation than to benefit from the presumed duty of confidentiality.

Litigational influence on Italian arbitration discourse

In the last few decades, alternative dispute resolution (ADR) – in the forms of arbitration, conciliation and mediation – has been increasingly adopted in trade and commerce to resolve conflicts. As this method of settling commercial disputes is commonly considered an efficient, economical and effective alternative to litigation, the language used in arbitration documents is usually deemed to differ from that of litigation texts. However, in recent years, there has been a narrowing between the two practices as litigation processes and procedures have increasingly been seen to influence arbitration practices. Drawing on documentary data, the paper investigates the extent to which the integrity of arbitration discourse is maintained in the Italian context, pointing out the phenomena of contamination by litigation practices and exploring the motivations for such an interdiscursive process. An additional issue investigated concerns the relationship between the professional identity of the arbitrators and the kind of language used in their texts; the analysis focuses in particular on the use of legal discourse both by legal and non-legal experts. It may be mentioned that although some of the data is based on Italian cases, the process and procedures, and the trials themselves are conducted in international contexts, where participants come from different international backgrounds, and have the freedom to use any of the varieties of world Englishes. Most of these arbitration practitioners from Italy practice internationally and often participate in trials conducted in English.

Past, Present, and Future Perspectives of Arbitration

This publication of the Patron’s Address at the CIArb’s Kuala Lumpur Conference presents selective thoughts on the development and role of arbitration in the past, today and its future perspective, primarily from the view of an arbitrator and from the background of experience the author has and has had in various functions in national and international legal and arbitration institutions. It starts by looking at past developments that were the basis for the present situation. Regarding the situation today, it deals in separate chapters with dispute settlement in general, commercial arbitration, politically sensitive disputes, investment arbitration, globalisation of arbitration, relevance of international law in commercial arbitration, arbitral procedure, promotion of amicable settlements, and the use of electronic media in arbitration. In a last chapter, it presents future perspectives particularly regarding a continuing expansion of arbitration, its subject matters and participating parties, its use for politically sensitive disputes, and the growing harmonisation between national arbitration laws and practices. Finally, it addresses the role of arbitrators in the process and the specific rising role and organisation of young arbitration practitioners.

And/Or: The Problem of Qualification in International Arbitration

The problem of qualification is one of the classic problems of conflict of laws and indeed has been characterised by leading scholars as the ‘fundamental’ problem. In short, it is about how a particular legal relation should be conceptualized or, more specifically, whether it should be qualified as a relationship of law and fact or rather as a conflict of laws. While the problem has attracted only limited attention among international arbitration scholars and practitioners, it provides an interesting perspective to conflict of laws in international arbitration. In classic conflict of laws, the problem of qualification was associated with the question of the relationship between legal categories (contract, tort, procedure, etc.) and a connecting factor (place of performance, place of tort, forum, etc.) In international arbitration, the relationship between the arbitration proceedings and the seat of arbitration, and other relevant connecting factors, raises similar issues of qualification. Measured by the relevant connecting factors such as the seat of arbitration, the nationality or domicile of the partus, the place of performance of the contract, and the subject matter of the dispute, an international arbitration may be more or less ‘international’ – or perhaps more accurately, ‘transnational.’ The less transnational the arbitration is in terms of the relevant connecting factors, the more appropriate it arguably is to resolve any conflict of laws issues that may arise on the basis of the standards of the seat. The more transnational the arbitration is in terms of such connecting factors, the more appropriate it arguably is to resolve any conflict issues by reference to transnational standards. In other words, the transnationality of international arbitration is a sliding scale, or a difference in degree, and as such a matter of policy. While qualification may or may not be the ‘fundamental’ problem of international arbitration, depending on one’s intellectual viewpoint, it does provide an instructive framework for developing an understanding of conflict of laws issues in international arbitration. Although true conflicts of laws remain rare, they may arise, and when they do arise, they tend to raise sensitive issues of public policy, precisely because an arbitral tribunal is not necessarily bound by the public policies of the seat.

New Rules on Domestic Arbitration in Switzerland

Until 2000, the competence for procedural laws in Switzerland had been vested with the cantons and not with the Swiss Federation. For domestic arbitration, a unification of the cantonal provisions had taken place through a Concordat, which is an agreement between cantons. The Concordat regarding domestic arbitration was concluded in 1969 (“Concordat”). On 1 January 2011, the new Swiss Code on Civil Procedure (“CCP”) will enter into force. It regulates and unifies the civil procedure before State Courts throughout Switzerland. In its Part 3, it provides for a new set of rules for domestic arbitration. The present article discusses the main principles and goals of the revised rules on domestic arbitration in Switzerland. Although the new rules are based on the Concordat, some changes have been introduced. The present article highlights the most important ones. The drafters of the CCP provisions on domestic arbitration have not limited themselves to amending the Concordat but have taken the opportunity to modernize the current regime of domestic arbitration and have thus introduced new provisions regulating the issues which have not been explicitly provided for under the old regime. Some of these provisions are specifically noteworthy also from the point of view of international arbitration practitioners because these provisions are also new in comparison to Chapter 12 of the Swiss Private International Law Act (“PILA”), which forms the Swiss lex arbitrii for international arbitration. The article therefore also briefly highlights the main differences of the revised rules on domestic arbitration as compared to Chapter 12 PILA. Finally, as a concluding remark, the author addresses the question of whether, in light of the newly introduced rules on domestic arbitration, the PILA is in need of a revision as well.

Can a World Exist Where Expedited Arbitration Becomes the Default Procedure?

Arbitration is losing its reputation as the quick and informal alternative to court proceedings. Consumers of the arbitration process (the business community) are voicing their concerns about the increased time and costs of arbitration. There seems to be a growing disparity between the expectations of corporate counsel and business executives as to how long an arbitration should take (which can generally be measured in months), and how long the process takes in practice (as a ‘norm’, two to three years). One questions how long this apparent mismatch can continue. If the customer is looking for a swifter, cheaper product, what is preventing us from selling it? The reasons traditionally given (for example, tribunal, counsel or witness availability, or a need for broad ranging document disclosure and/or witness evidence) are frequently not insurmountable, so long as it is appreciated that expedition may bring with it an element of compromise in the process. There are other reasons, generally unspoken, as to why more arbitrations are not expedited: habit and preconceptions of counsel and arbitrators as to what steps are necessary in an arbitration, how long those steps should take, and how long the process as a whole should take, can have a significant impact on the pace of proceedings. Frequently, by default, the principal players (counsel, the tribunal and the institution) will slip into the comfort and familiarity of the leisurely, ‘luxury saloon’ form of process. Too often there is a failure to seize the initiative and pro-actively consider whether there is a quicker, cheaper means of concluding the arbitration, even if it would require an explanation to the parties that they may lose something in the quality of the ride. Is it not time arbitration practitioners got used to the idea that the smaller, more nimble and reasonably priced car should take pride of place in the showroom, and be offered as the normal choice – the default procedure – in the absence of good reasons that it cannot or should not be offered?