14 December 2015 – Current trends around transparency, recent changes to protocols and the development of arbitration in Africa and Asia were some of the issues debated at the Legal Business International Arbitration Summit supported by Harbour Litigation Funding. Participants and attendees represented the elite of the UKs arbitration community and included general counsel, private practice lawyers and barristers.
In his opening keynote, summit chair Constantine Partasides QC of Three Crowns noted the sheer scale of international disputes now going to arbitration and how international arbitration has undergone a remarkable transformation. He continued to outline that while international arbitration faced a number of key challenges he concluded that there is reason to be optimistic about the outlook for international arbitration and its intrinsic ability to address these challenges.
- Harbours Head of Litigation Funding, Susan Dunn, was a panellist in the session Lifting the veil: Transparency and protocol in international arbitration where she spoke about the need for certainty of process and costs; While there is a good degree of certainty in arbitrations about the cost of the arbitrators, there remains a lot of uncertainty on the predictability of costs awards and security for costs. Focusing on what matters to Harbour she outlined when assessing any case, of course the merits are important, but just as importantly is having certainty about what the case will cost to take to conclusion and that includes knowing what the exposure to adverse costs will be if the case is lost. There is that degree of predictability in litigation and arbitrations that need to be clearer in this regard Other panellists for this session, which focused on the confidentiality of awards and the extent to which they should be more widely published, were Constantine Partasides QC, Peter Rees QC of 39 Essex Chambers and Michael Schoepe of Siemens.
- Christopher Newmark, chair of the International Chambers of Commerce (ICC) Commission on Arbitration and ADR outlined the various initiatives and studies being undertaken by the ICC to improve costs; The most important factor in whether a particular arbitration proceeding is efficient and effective is not the arbitration rules that governs it. The most important factor by far is the quality of the individuals who are working on the case.
- With a view to how arbitration benefits clients, Keiron OCallaghan of Hogan Lovells argued that such new protocols and rule revisions are not helping clients Everyone knows that two of the main concerns for clients are; How long is this going to take and how much will it cost? Nayeem Syed, assistant general counsel of finance and risk at Thomson Reuters pointed out that the average GC doesnt spend much time thinking about arbitration, least of all looking at guidelines that are 60-70 pages long. More useful would be developing clear frameworks that would help a GC assess their situation. It would probably give GCs more confidence to use arbitration. What happens is that if you do not understand it, you will not choose it. Ultimately, no-one is going to fire you for choosing litigation as the default option in your transaction.
- In the panel World View: Looking at the growth of arbitration in Africa and Asia as the forum for resolving Russian disputes, panel chair Craig Tevendale of Herbert Smith referred to the 54 jurisdictions in Africa with diverse approaches to dispute resolution. Eversheds Stuart Dutson pointed to the manifest changes in Africa over the last 12 years mostly down to the influx of Chinese and Indian money. This session also included a general update on how the UNCITAL Model Law on International Commercial Arbitration is being implemented in ten African countries.
- A light-hearted discussion chaired by Alex Novarese, editor in chief of Legal Business looked at Boutiques v Big Law. Speaking for specialist firms, Ted Greeno of Quinn Emanuel pointed to the advantages of lower costs, flexibility and the ability to attract best lawyers while Jason Fry of Clifford Chance focused on the advantages around depth of client relationships in larger firms, sector and practice area expertise and the availability of resources as cases become larger.
- The closing session, Investor-state arbitration: Into the Spotlight, chaired by Sir Frank Berman KCMG QC of Essex Court Chambers, explored the issue of third party intervention and negative stereotypes surrounding English courts. Panellist Lord Hoffman of Brick Court Chambers offered his views on the various criticisms of investor-state arbitration including decisions that are inconsistent and unpredictable, no doctrine of precedent and no Court of Appeal. In the discussion on whether there was abuse of process in investor-state arbitrations, Robert Volterra of Volterra Fietta felt there are abuses of rights that happen, but there is also confusion about what constitutes as abuse.
For the full conference report read here
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