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Conference Powerpoint Presentations

  1. 1. Inaugural Conference of CIArb International Young Members GroupThe Irish Branch Welcomes you to Dublin
  2. 2. Inaugural Conference of CIArb International Young Members Group Programme For The DayTime Title Speaker9.30 to 10.00 Conference Launch Pat Brady & Justice Peter Kelly10.00 to 10.45 Challenges & Benefits Facing Young Arbitration Doug Jones Practitioners10.45 to 11.45 International Best Practise, What Can Arbitral Panel Discussion Seats Learn From One Another11.45 to 12.15 Coffee Break12.15 to 1.15 Evolving Practise Under The New York Klaus Reichert Convention1.15 to 2.30 Lunch2.30 to 3.30 Investment Arbitration, Fit For Purpose? Panel Discussion3.30 to 4.30 International Arbitration, Emerging Trends Panel Discussion
  3. 3. Inaugural Conference of CIArb International Young Members Group Conference LaunchPat Brady FCIArb, Chair CIArb, Irish BranchMr. Justice Peter Kelly of the High Court Assigned IrishArbitration Judge
  4. 4. Inaugural Conference of CIArb International Young Members Group Session OneDoug Jones, AM FCIArb, Wordwide President of CIArb and Partner at Clayton Utz, Sydney Australia.Session Moderator:Dr Breda Daly, Lecturer in ADR, Dublin City University.
  5. 5. Inaugural Conference of CIArb International Young Members GroupChallenges and Benefits Facing Young Arbitration PractitionersProfessor Doug Jones AMPresident, CIArb
  6. 6. Inaugural Conference of CIArb International Young Members Group Overview• The Chartered Institute of Arbitrators• Career pathways• The region• Becoming an arbitrator/mediator
  7. 7. Inaugural Conference of CIArb International Young Members Group The Chartered Institute of Arbitrators• 12,000 members• Members from over 100 countries• Branches in over 30 countries• World-respected international ADR accreditation body and learned society• Becoming involved in CIArb
  8. 8. Inaugural Conference of CIArb International Young Members Group Pathways• Practicing arbitration — both domestically and internationally• Professional development • Mooting • Speaking, writing and networking • Postgraduate study • Assisting tribunals • Working for ADR institutions
  9. 9. Inaugural Conference of CIArb International Young Members Group The Region• Irelands domestic arbitration reforms• The UNCITRAL Model Law• Promoting Ireland as an attractive venue for international arbitration• Connect to whatever exciting is happening in your region
  10. 10. Inaugural Conference of CIArb International Young Members Group Becoming an arbitrator/mediator• Practice• Peer appointments• Institutional appointments www.claytonutz.com
  11. 11. Inaugural Conference of CIArb International Young Members Group Session TwoPanel Discussion - International Best Practise, What can arbitral seats learn from one another?Gordon BlankeSiobhan KirraneMandy MooreDr. Beata GesselSession Moderator: Dermot Durack
  12. 12. Inaugural Conference of CIArb International Young Members Group Arbitration in the UAEGordon Blanke MCIArb,Counsel, Habib Al Mulla & Co,Dubai, UAE
  13. 13. Inaugural Conference of CIArb International Young Members Group Hot Topics in Arbitration in the UAE• Impact of the global economic crisis• Special procedures/committees/tribunals for governmental entities? (e.g. Dubai World Special Tribunal)• Enforcement of foreign awards (role of the NYC)• Adoption of a new Arbitration Law
  14. 14. Inaugural Conference of CIArb International Young Members Group Best Practices/Features of Arbitration in the UAE• The institutional co-existence of DIAC and DIFC- LCIA (civil/common law jurisdiction), institutional competition• Development of international best practice standards by arbitration organisations in the region (DIAC, CIArb etc.)• Import of best practices by international arbitration practitioners (counsel, arbitrators) acting in the region
  15. 15. Inaugural Conference of CIArb International Young Members Group Pupilage & Mentoring of Arbitration Trainees/Practitioners• Broad offering of training courses dispensed by arbitration organisations (DIAC, ICC, CIArb etc.)• Initiatives by DIAC to mentor inexperienced local counsel on a one-to-one or group basis• Initiatives of ICC UAE in creating easily accessible practitioner materials in English• Traineeships in arbitration departments of international and local firms/ paralegal positions in arbitration organisations
  16. 16. Inaugural Conference of CIArb International Young Members Group Promotion of Quality in the UAE• Internal restructuring of DIAC (new Director, international case-management teams etc.)• Creation of competition between regional arbitration organisations (ADCCAC, DIAC, DIFC-LCIA, other regional providers)• Introduction of arbitration modules in university curricula• Creation of high-quality infrastructural and legal framework
  17. 17. Inaugural Conference of CIArb International Young Members Group Cost-reducing Efforts in Arbitration in the UAE• Cost-conscious pricing strategies of legal counsel, competitive professional environment• Procedural economy of arbitration proceedings (consolidation, appointment of sole arbitrator etc.)• Exploitation of settlement opportunities by the parties• Encouragement of voluntary performance of awards
  18. 18. Inaugural Conference of CIArb International Young Members Group Best International Practice What Arbitral Seats can learn from one anotherSiobhán KirraneA&L Goodbody
  19. 19. Inaugural Conference of CIArb International Young Members Group Ireland as an arbitral seatNew legislationWhat Ireland has learnedWhat others can learn from Ireland
  20. 20. Inaugural Conference of CIArb International Young Members GroupSuccessful industries in IrelandOutward lookingFocus on best practice
  21. 21. Inaugural Conference of CIArb International Young Members Group New LegislationICCA Conference 2008Seminar in April 2007Collaboration Government Arbitration Community
  22. 22. Inaugural Conference of CIArb International Young Members Group New LegislationUNCITRAL Model Law Adopted in over 50 countries Tried and tested Body of case lawArbitration Act 2010 Domestic and International
  23. 23. Inaugural Conference of CIArb International Young Members Group What others can learn from IrelandAdditions to the Model LawNo appeal from High CourtArbitration JudgesBenefits
  24. 24. Inaugural Conference of CIArb International Young Members Group What others can learn from IrelandAttitude of JudiciaryMr Justice Frank ClarkeStrong regard to decisions in other jurisdictionsBarnmore Demolition Case
  25. 25. Inaugural Conference of CIArb International Young Members Group What others can learn from usCollaborationSymposium in January 2009Report submitted to Department of JusticeGrounds of challenge amended
  26. 26. Inaugural Conference of CIArb International Young Members Group Arbitration IrelandAdvisory Board Lucy Reed – Freshfields Bruckhaus Deringer Donald Francis Donovan – Debevoise & Plimpton John Gardiner – Skadden Arps Meagher & Flom Audley Sheppard – Clifford Chance Pierre-Yves Tschanz – Tavernier Tschanz
  27. 27. Inaugural Conference of CIArb International Young Members Group In ConclusionModel LawCourts and Governmentsupportive of arbitrationArbitration Ireland
  28. 28. Inaugural Conference of CIArb International Young Members GroupCanada As the Arbitral Seat Mandy E. Moore, FCIArb Borden Ladner Gervais LLP Ottawa, Canada mmoore@blg.com
  29. 29. Inaugural Conference of CIArb International Young Members Group A Primer on Canada• 10 provinces and 3 territories• Total population of 34,349,200• Key arbitration cities – Vancouver, Montreal, Toronto, Calgary and Ottawa• Bilingual – English and French• Multi-cultural• Common and civil law legal systems
  30. 30. Inaugural Conference of CIArb International Young Members Group A Primer on Canada – cont’d• Strong tradition of ad hoc arbitrations• Arbitration Institutions – BCICAC, ADR Institute of Canada, ICC, LCIA and AAA/ICDR
  31. 31. Inaugural Conference of CIArb International Young Members Group A Primer on Canada –cont’d• Arbitrations governed primarily by provincial legislation• Provincial legislation adopting Model Law• Provincial and federal legislation enacting New York Convention• No mandatory procedural rules• Tribunals often employ IBA Rules on the Taking of Evidence in International Commercial Arbitrations
  32. 32. Inaugural Conference of CIArb International Young Members Group Canadians Involved in the CIArb• Associates – 28• Members – 38• Fellows – 68• Chartered Arbitrators - 12
  33. 33. Inaugural Conference of CIArb International Young Members Group Perception of Canada• Taylor Wessing Global Dispute Resolution Report (2009)• Conclusions on Canada: • Predictable and reliable jurisdiction to determine disputes • Ranked 1st – best value for money • Ranked 3rd – integrity of procedure and judiciary • Ranked 6th – availability of competent professionals • Ranked 7th – adequacy of a body of clear law
  34. 34. Inaugural Conference of CIArb International Young Members Group Costs Treatment in Canada• International and domestic arbitrators have the discretion to make an award of costs, including: • Fees and expenses of arbitrators • Fees and expenses of expert witnesses • Parties’ legal fees and expenses • Fees of any administering institution• Unsuccessful party generally required to pay all or substantially all of successful party’s costs• Arbitrator and counsel rates are reasonable and generally lower than other major arbitral seats
  35. 35. Inaugural Conference of CIArb International Young Members Group Arbitral Jurisprudence• Increasing in frequency• Canadian courts are respectful of arbitral proceedings• Arbitration agreements are broadly interpreted and enforced• Concepts of separability and kompetenz-kompetenz well recognized• Stay of Court proceedings in favour of arbitration frequently granted
  36. 36. Inaugural Conference of CIArb International Young Members Group Supreme Court of Canada Decisions• Desputeaux v. Éditions Chouette (1987) Inc. (2003 SCC 17)• Union des consommateurs v. Dell Computer Corp. (2007 SCC 34)• Yugraneft Corp. v. Rexx Management Corp. (2010 SCC 19)• Seidel v. TELUS Communications Inc. (2011 SCC 15)
  37. 37. Inaugural Conference of CIArb International Young Members Group Arbitrator Independence & Impartiality• Telesat Canada v. Boeing Satellite Systems International, Inc. (2010 ONSC 4023) • Removal of Chair for reasonable apprehension of bias. • IBA Guidelines on Conflicts of Interest in International Arbitration
  38. 38. Inaugural Conference of CIArbInternational Young Members Group Thank You Mandy E. Moore Borden Ladner Gervais LLP (613) 787-3500 mmoore@blg.com
  39. 39. Inaugural Conference of CIArb International Young Members Group Lewiatan Court of Arbitration - an example of exchangeof ideas among arbitral institutions. Dr Beata Gessel-Kalinowska vel Kalisz Dublin, 11 November 2011
  40. 40. Inaugural Conference of CIArb International Young Members Group• The public interest is best served by the free exchange of ideas John Kane• If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas. George Bernard Shaw
  41. 41. Inaugural Conference of CIArb International Young Members Group Historical context:• Arbitration in Poland between 1945 and 1989: practically only international disputes.• 2005 Uncitral Model Law adaptation.• Problem with arbitrability: corporate disputes.
  42. 42. Inaugural Conference of CIArb International Young Members Group 2005: establishment of the Lewiatan Court of Arbitration• A need for arbitration alternatives.• The role of Lewiatan as an organization of employers in Poland.• Rules based on 2005 amended law, however still rooted in the traditional solutions (in particular, list of arbitrators).
  43. 43. Inaugural Conference of CIArb International Young Members Group 2005: establishment of the Lewiatan Court of Arbitration• 2009 - Program for promotion of arbitration funded by the EU: opening for foreign solutions and institutions, including cooperation with CIArb, ICC, VIAC.• 2010 - Fast track.• 2011- New rules under preparation: emergency arbitrator, no limits whatsoever in choosing arbitrators, time limits in resolution of disputes.
  44. 44. Inaugural Conference of CIArb International Young Members Group Thank you for your attention ! Dr Beata Gessel-Kalinowska vel KaliszPresident of the Lewiatan Court ofArbitration bgessel@pkpplewiatan.pl www.arbitrationcourt.org.pl
  45. 45. Inaugural Conference of CIArb International Young Members Group Session Two - QuestionsPanel Discussion – International Best Practise: What can arbitral seats learn from one another?Dermot Durack, Session Moderator
  46. 46. Inaugural Conference of CIArb International Young Members GroupCoffee Break- 12.15-12.45
  47. 47. Inaugural Conference of CIArb International Young Members Group Session ThreeKlaus Reichert, Senior Counsel, Law Library, Dublin &Brickcourt Chambers, London.Session Moderator:Gabriel Daly Partner, Beauchamps Solicitors, Dublin.
  48. 48. Evolving Practice under the New York Convention Klaus Reichert SC Inaugural Conference of CIArb International Young Members GroupEvolving Practice under the New York ConventionKlaus Reichert SC
  49. 49. Inaugural Conference of CIArb International Young Members Group New York Convention•Fundamental bedrock of international commercial arbitration since 1958, theNew York Convention on the Recognition and Enforcement of Arbitral Award.•Two functions, recognition and enforcement of arbitral agreements and arbitralawards.•Particularly limited and circumscribed exceptions.•Focus of these remarks on enforcement of arbitral awards.•Party wishing to enforce an award presents award (or duly authenticated copy)and original arbitral agreement (or duly authenticated copy) to enforcing court(Art IV) - this satisfies burden of proof and triggers international obligation (ArtIII).•Defendant then has limited options and the burden lies with it in respect ofproof:
  50. 50. Inaugural Conference of CIArb International Young Members Group New York ConventionArticle V1. Recognition and enforcement of the award may be refused, at the request ofthe party against whom it is invoked, only if that party furnishes to thecompetent authority where the recognition and enforcement is sought, proofthat:(a) The parties to the agreement referred to in article II were, under the lawapplicable to them, under some incapacity, or the said agreement is not validunder the law to which the parties have subjected it or, failing any indicationthereon, under the law of the country where the award was made; or
  51. 51. Inaugural Conference of CIArb International Young Members Group New York Convention(b) The party against whom the award is invoked was not given proper notice ofthe appointment of the arbitrator or of the arbitration proceedings or wasotherwise unable to present his case; or(c) The award deals with a difference not contemplated by or not falling withinthe terms of the submission to arbitration, or it contains decisions on mattersbeyond the scope of the submission to arbitration, provided that, if the decisionson matters submitted to arbitration can be separated from those not sosubmitted, that part of the award which contains decisions on matterssubmitted to arbitration may be recognized and enforced; or
  52. 52. Inaugural Conference of CIArb International Young Members Group New York Convention(d) The composition of the arbitral authority or the arbitral procedure wasnot in accordance with the agreement of the parties, or, failing suchagreement, was not in accordance with the law of the country where thearbitration tookplace; or(e) The award has not yet become binding on the parties, or has been setasideor suspended by a competent authority of the country in which, or underthe law of which, that award was made.
  53. 53. Inaugural Conference of CIArb International Young Members Group New York Convention2. Recognition and enforcement of an arbitral award may also be refused if thecompetent authority in the country where recognition and enforcement issought finds that:(a) The subject matter of the difference is not capable of settlement byarbitration under the law of that country; or(b) The recognition or enforcement of the award would be contrary to the publicpolicy of that country
  54. 54. Inaugural Conference of CIArb International Young Members Group New York Convention•Long-held assumption as to two features - pro-enforcement bias throughoutthe World and the Art V grounds are discretionary even if proven.•Hugely successful convention and arguments at ICCA 2008 for change weresternly resisted.•Notable feature, always cited, is the abolition of double exequatur which wasthe position prior to 1958.
  55. 55. Inaugural Conference of CIArb International Young Members Group New York Convention•Recently cases in UK and Australia have made practitioners look at practiceunder the New York Convention a little differently and consider additionalsteps: Dallah v Pakistan and Altain Khuder v IMC Mining.•Concluding question: the 2008 debate, a fresh look again at what is nowcalled the Miami Draft, or a statement on the existing Convention, or nothing atall.
  56. 56. Inaugural Conference of CIArbInternational Young Members Group Lunch Break – 1.15 to 2.30
  57. 57. Inaugural Conference of CIArb International Young Members GroupKing’s Inns, Henrietta Street
  58. 58. Inaugural Conference of CIArb International Young Members Group Session FourPanel Discussion – Investment Arbitration: Fit for purpose?Luis GuerreroBrian HutchinsonThomas SebastianJohn GaffneySession Moderator: Colm O’ Hoisin Senior Counsel
  59. 59. Inaugural Conference of CIArb International Young Members GroupInvestment Arbitration in South America Rules and Trends Luis Guerrero
  60. 60. Inaugural Conference of CIArb International Young Members Group Frame on the First Half of the 20th CenturyNaciolism from the three first decades of 20th Century and MilitaryDitatorship from the Sixties to the Eighties Features:-State as the only economical agent in the international context-Huge amount of international loans-Investments only in Brazil – Power Plants, roads, seaports
  61. 61. Inaugural Conference of CIArb International Young Members Group From The Ninities – The Turning Point A New Model of Arbitration-Real Plan – Economical Stabilization- Privatization of public companies in strategic fields and infrastructure- New legal Frame on particular and government relationship: Public Utilities and Particular Managment Alternative Law 11.079 Dispute Resolution Bidding Law 8.987- Arbitration from Law 9.307/96: – binding process – arbitration award has the same effects of a judicial award
  62. 62. Inaugural Conference of CIArb International Young Members Group From The Ninities – The Turning Point A New Model of ArbitrationBilateral Investment Threaties – BITs (source: UNCTAD): 14 has been signed by Brazilbut they were not analysed by Brazilian Congress: Country Date Country Date Portugal 2/9/1994 Italy 4.3.1995 Chile 3/22/1994 Venezuela 7.4.1995 United Kingdom 7/19/1994 South Korea 9.1.1995 Switzerland 11/11/1994 Germany 9.21.1995 Denmark 3/4/1995 Cuba 6.26.1997 France 3/21/1995 Holland 11.25.1998 Finland 3/28/1995 Belgium and Luxemburg 1.6.1999
  63. 63. Inaugural Conference of CIArb International Young Members Group Century 21th – Brazil as an Investor – A New role in the World- STF (Brazilian Supreme Court) – Arbitration as a dispute resolution toolin acordance to Brazilian Constituition- Argentinian Crisis – Somewhere in the Past? Brazil in 1987- STJ (Brazilian Highst Legal Court) - State and Arbitration – Power PlantCase – AES Uruguaina (2006)Brazilian New Role in the World – Bolivia and Equador, Angola, World Cupand Olympics Games
  64. 64. Inaugural Conference of CIArb International Young Members Group ConclusionBrazil came from a system where economy have beencontrolled by the government to na open systemADR represents na expression of this shift in the governmenteconomical approachChalleng: how to behave in an context in which Brazil is theInvestor?
  65. 65. Inaugural Conference of CIArb International Young Members GroupMUITO OBRIGADO!THANK YOU!lfg@dinamarco.com.br
  66. 66. Inaugural Conference of CIArb International Young Members GroupBrian HutchinsonSenior Lecturer, University College Dublin
  67. 67. Inaugural Conference of CIArb International Young Members GroupThomas SebastianSenior Associate, Allen & Ovary, London.
  68. 68. Inaugural Conference of CIArb International Young Members GroupThe Future of InvestmentTreaty ArbitrationJohn Gaffney
  69. 69. Inaugural Conference of CIArb International Young Members GroupThe European Union andInvestment TreatyArbitration
  70. 70. Inaugural Conference of CIArb International Young Members Group Topical issues―Intra-EU BITS―Extra-EU BITs―Institutional Issues―EU law and investment treaty arbitration
  71. 71. Inaugural Conference of CIArb International Young Members GroupIntra-EU BITs
  72. 72. Inaugural Conference of CIArb International Young Members Group Intra-EU BITs• EU Commissions court actions and encouragement" of their termination• Application of EU law
  73. 73. Inaugural Conference of CIArb International Young Members GroupExtra-EU BITs
  74. 74. Inaugural Conference of CIArb International Young Members Group Extra-EU BITs• Lisbon Treaty (Member States’ v. Commission’s interpretations)• Communication on developing a comprehensive European international investment policy, draft Regulation, Council and EP responses• FTAs (e.g., EU-Canada FTA - investment protection sections)• Commissions court actions (Finnish case etc. v. Slovak case)
  75. 75. Inaugural Conference of CIArb International Young Members GroupInstitutional Issues
  76. 76. Inaugural Conference of CIArb International Young Members Group Institutional Issues• EU is not a State• A European Center for Settlement of Investment Disputes?• Preliminary reference procedures?• Role of ICC, LCIA etc?
  77. 77. Inaugural Conference of CIArb International Young Members GroupRelationship between EU Lawand investment treaty arbitration
  78. 78. Inaugural Conference of CIArb International Young Members Group Relationship between EU law and investment treaty arbitration• Options: ― No role? (e.g., Eastern Sugar v Czech Republic) ― EU law as “a relevant fact” (e.g., AES v Hungary) ― EU law as applicable law (e.g., Eureko v Slovak Republic)• Who preserves the integrity of EU law?
  79. 79. Inaugural Conference of CIArb International Young Members Group Session Four - QuestionsPanel Discussion – International Arbitration, Fit for purpose:Colm O’ Hoisin
  80. 80. Inaugural Conference of CIArb International Young Members Group Session FivePanel Discussion – International Arbitration, Emerging TrendsConor OwensStacey BarnesGoncalo MalheiroLaurence BurgerSession Moderator: Arran Dowling-Hussey FCIArb, B.L
  81. 81. Inaugural Conference of CIArb International Young Members GroupCOSTS IN ARBITRATIONANALYSIS AND EMERGING TRENDSConor Owens, Associate, Maples & Calder
  82. 82. Inaugural Conference of CIArb International Young Members Group TOPICAL ISSUE• Lack of funding is a major consideration• Growth in complaints that the costs of arbitration are too high• Litigants, Solicitors and Arbitral Institutions are all looking at ways of reducing cost expenditure• New industries are emerging as a result of the difficulties in funding litigation• For any practitioner controlling cost is a major contributor to repeat business
  83. 83. Inaugural Conference of CIArb International Young Members Group TALK WILL FOCUS ON:• WHERE COSTS ARE BEING SPENT• TECHNIQUES FOR CONTROLLING COSTS• RECENT COST INITIATIVES
  84. 84. Inaugural Conference of CIArb International Young Members Group 1. WHERE ARE MOST COSTS INCURRED?• CIARB survey in 2011• Party Costs and Common Costs• Party Costs – 74% on legal fees (including barristers); 10% on experts; 8% on external expenses; 5% on witnesses; 3% for management costs.• Common Costs – 60% on arbitral fees; 40% hearing costs.
  85. 85. Inaugural Conference of CIArb International Young Members Group WHERE ARE COSTS INCURRED:• Claimant’s costs are higher than a Respondent’s (by 12%)• Respondent’s spend more on experts (by 55%)• Common law less costly than civil law• Of party costs, 37% are spent on the hearing• Average length of an arbitration is between 17 and 20 months • Length affects party costs but not common costs
  86. 86. Inaugural Conference of CIArb International Young Members Group 2. HOW ARE COSTS BEING CONTROLLED/REDUCED?• A CONSIDERABLE EMPHASIS ON COST CONTROL IN RECENT YEARS • THE NEW ICC RULES INCLUDE PROVISIONS DESIGNED TO REDUCE COSTS Case management techniques (Article 24 and Appendix IV) • UNCITRAL RULES 2010 HAVE PROVISIONS DEALING WITH Reasonableness of costs incurred Detailed review of costs
  87. 87. Inaugural Conference of CIArb International Young Members Group HOW ARE COSTS BEING CONTROLLED?• It is accepted that the key to controlling costs is the early understanding of the issues in dispute. This will facilitate: • Avoiding irrelevant evidence; • Avoiding irrelevant discovery; • Efficient briefing of experts; • Effective case management.• But, compare civil law and common law.
  88. 88. Inaugural Conference of CIArb International Young Members Group 3. RECENT COST INITIATIVES• AFTER THE EVENT INSURANCE• DISPUTE RESOLUTION FUNDING• CONDITIONAL FEE AGREEMENTS• COST CAPPING
  89. 89. Inaugural Conference of CIArb International Young Members Group RECENT COST INITIATIVES• After The Event Insurance • Becoming more popular • Insures against an adverse costs order • Legal opinion that case has more than 60% chance of success • Level of premium can be staggered – early settlement • Payment of premium can be ―deferred and contingent upon success‖ Premium can be recovered as part of the costs
  90. 90. Inaugural Conference of CIArb International Young Members Group RECENT COST INITIATIVES• Dispute Resolution Funding • Third party pays the costs of dispute resolution Usually where the Claimant has financial difficulties • Commonly undertaken by sole purpose investment funds • 60% chance of success • Defendant must have means to pay • Irish Courts have shown a willingness to hold funders liable for adverse costs orders against the funded party
  91. 91. Inaugural Conference of CIArb International Young Members Group CAPPING COSTS• Allowed by certain arbitration rules and national legislation • UK Arbitration Act s.65 • ICE Arbitration Procedure • Construction Industry Model Arbitration Rules• Seems that Arbitrators have a wider discretion than Courts to cap costs• Worth considering if your client has limited means
  92. 92. Inaugural Conference of CIArb International Young Members Group CONCLUSION• THE COSTS OF ARBITRATION ARE A PROBLEM WHICH MUST BE TACKLED BY: • Practitioners • Arbitrators • Arbitral Bodies • Clients• THE FLEXIBILITY OF THE ARBITRAL PROCESS IS THE KEY TO A SOLUTION
  93. 93. Inaugural Conference of CIArb International Young Members GroupInternational Arbitration:Emerging TrendsWhat a Common Law Lawyer Should KnowStacy L Barns
  94. 94. Inaugural Conference of CIArb International Young Members Group The Emerging Paradigm• A Convergence of Common Law and Civil Law Traditions• Taking a “Best of Both Worlds” Approach to the Common Law and Civil Law• Procedural Flexibility - Allowing a Tribunal to Tailor the Procedures of the Case to the Particulars of the CaseSee Gabrielle Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J.Transnatl L. 1313 (2003); Siegfried H. Elsing & John M. Townsend, Bridging theCommon Law—Civil Law Divide in Arbitration, 18 Arb. Int’l 59 (2002).
  95. 95. Inaugural Conference of CIArb International Young Members Group Topics• Witness Statements & Their Interaction with Witness Testimony• Witness Examination & Preparation• Trends in Expert Witness Examination
  96. 96. Inaugural Conference of CIArb International Young Members GroupWitness Statements
  97. 97. Inaugural Conference of CIArb International Young Members Group Witness Statements: The Basics• Origin in the Civil Law Tradition• Rooted in “A Distrust of Oral Evidence”• Civil Lawyers’ Belief that Documents are the Best Evidence• Contains a Statement of the Witness’s Fact Testimony• Typically Prepared by AttorneysSee James Beardsley, Proof of Fact in French Civil Procedure, 34 Am J. Comp. L. 459(1986); Siegfried H. Elsing & John M. Townsend, Bridging the Common Law—CivilLaw Divide in Arbitration, 18 Arb. Int’l 63 (2002); David P. Roney, Effective WitnessPreparation for International Commercial Arbitration, 20 J. Int’l Arb. 429, 430 (2003).
  98. 98. Inaugural Conference of CIArb International Young Members Group Witness Statements: Drafting Considerations• The Result of a Careful Interview of the Witness• Written in the Witness’s Own “Voice” and Manner of Speaking• Detailed Statement of Fact• Deal with the Facts Known to the Witness• Avoid Legal Conclusions and Terms of Art• The Witness Should Participate Closely in the Drafting and Edit of the Statement• The Witness Should be Comfortable and Confident in the Contents
  99. 99. Inaugural Conference of CIArb International Young Members Group Witness Statements: IBA Rules of EvidenceIBA Rules on the Taking of Evidence in InternationalCommercial Arbitration• Adopted in 1999, with 2010 Revisions• A Result of the Differing Approaches of the Common and Civil Law Traditions• An Attempt to Harmonize International Arbitration Practice• Guidelines, Rather than Binding Rules• May be Incorporated into an Arbitration Clause or Procedural OrderRules and Commentary available online at: www.ibanet.org
  100. 100. Inaugural Conference of CIArb International Young Members Group Witness Statements: IBA Rules of EvidenceIBA Rules of Evidence, art. 4.4The Arbitral Tribunal may order each Party to submit within a specified time tothe Arbitral Tribunal and to the other Parties Witness Statements by eachwitness on whose testimony it intends to rely, except for those witnesses whosetestimony is sought pursuant to Articles 4.9 or 4.10. If Evidentiary Hearings areorganized into separate issues or phases (such as jurisdiction, preliminarydeterminations, liability or damages), the Arbitral Tribunal or the Parties byagreement may schedule the submission of Witness Statements separately foreach issue or phase.
  101. 101. Inaugural Conference of CIArb International Young Members Group Witness Statements: IBA Rules of EvidenceIBA Rules of Evidence, art. 4.5 - Each Witness Statement shall contain: (a) the full name and address of the witness, a statement regarding his or her present and past relationship (if any) with any of the Parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant to the dispute or to the contents of the statement; (b) a full and detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute. Documents on which the witness relies that have not already been submitted shall be provided; (c) a statement as to the language in which the Witness Statement was originally prepared and the language in which the witness anticipates giving testimony at the Evidentiary Hearing; (d) an affirmation of the truth of the Witness Statement; and (e) the signature of the witness and its date and place.
  102. 102. Inaugural Conference of CIArb International Young Members Group Witness Statements: IBA Rules of Evidence• Revision of Witness Statements - IBA Rules of Evidence, art. 4.6• A Witness Giving a Statement Must Appear at the Evidentiary Hearing Upon Request. Failure to Do So will Result in the Tribunal Disregarding the Witness Statement - IBA Rules of Evidence, art. 4.7• Failure to Request a Witness’s Presence at the Hearing Does Not Constitute an Agreement as to the Truth of a Witness Statement - IBA Rules of Evidence, art. 4.8
  103. 103. Inaugural Conference of CIArb International Young Members Group Witness Statements: Practicalities of Use• Useful to the Arbitral Tribunal for Learning the Factual Framework of the Dispute• Main Vehicle for Presentation of Background Facts and Non-Essential Facts in Dispute• For Essential Facts in Dispute, the Statements Will be Supplemented by Direct Examination, Cross-Examination, and Re-Direct of the Witness in Question
  104. 104. Inaugural Conference of CIArb International Young Members GroupWitness Examination
  105. 105. Inaugural Conference of CIArb International Young Members Group Witness Examination: Basics• Acknowledgement of Witness Examination as a Strength of the Civil Law System• Common Law Lawyers Are Often Better Trained at Witness Examination, Especially Cross-Examination• Common Law Arbitrators, As Opposed to Civil Law Arbitrators, Are Often More Comfortable With Extended Witness ExaminationSee generally LAWRENCE W. NEWMAN & BEN H. SHEPPARD, JR., Take the Witness: Cross-Examination in International Arbitration (2010).
  106. 106. Inaugural Conference of CIArb International Young Members Group Witness Examination: Interview & Preparation• Some Jurisdictions Forbid Interview or Preparation of Witnesses• “It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them.” IBA Rules of Evidence, art. 4.3; see also Swiss R. Arb. 25(6); LCIA Arb. R. 20.6.• Still an Ethical Concern for Some Attorneys• American Model – Extremely Thorough Preparation, Practice and Role Play of HearingsSee Ian Meredith & Hussain Khan, Witness Preparation in International Arbitration – A Cross Cultural Minefield,Mealey’s Int’l Arb. Rep., Vol. 26, No. 9, Sept. 2011 at 1, available online at: www.klgates.com
  107. 107. Inaugural Conference of CIArb International Young Members Group Witness Examination: IBA Rules of Evidence• Parties Must Identify Witnesses upon whose Testimony They Intend to Rely. IBA Rules of Evidence, art. 4.1.• Any Person May Give Testimony, Including Party Representatives. IBA Rules of Evidence, art. 4.2.• Parties May Request the Arbitral Tribunal to Issue a Subpoena to Third Party Witnesses. IBA Rules of Evidence, art. 4.9.• The Tribunal May Order as Party to Produce a Witness for Examination. IBA Rules of Evidence, art. 4.10.
  108. 108. Inaugural Conference of CIArb International Young Members Group Witness Examination: Need for Direct Examination• Some Tribunals Feel There Is No Need for A Direct Examination as the Tribunal Already Has the Witness Statement. They Will Begin with Cross-Examination of the Witness.• However, Witnesses Are Often Frightened, Intimidated or Uncomfortable with the Proceeding.• Recommendation: Request a Short Direct Examination in Order to Allow the Witness to Become Comfortable or “Warm to the Seat.”• Recommendation: Request the Initial Direct Examination at the Time of the Scheduling & Procedural Order.
  109. 109. Inaugural Conference of CIArb International Young Members GroupExpert WitnessExamination
  110. 110. Inaugural Conference of CIArb International Young Members Group Expert Witnesses Party Appointed• Often Instrumental, Especially for Technical, Scientific, Engineering, and Economic Issues• Party Must Identify and Produce Reports from the Expert. IBA Rules of Evidence, arts. 5.1, 5.2.• Additional or Rebuttal Experts - IBA Rules of Evidence, art. 5.3.• The Tribunal May Order Party Appointed Experts to Meet and Confer, and Outline Areas of Agreement and Disagreement. IBA Rules of Evidence, art. 5.4.
  111. 111. Inaugural Conference of CIArb International Young Members Group Expert Witnesses Tribunal Appointed• The Tribunal May Appoint an Expert Witness Itself. IBA Rules of Evidence, art. 6.1; UNCITRAL Model Law, art. 26; see generally Swiss R. Arb., art. 27.• The Expert Will Submit a Report to Tribunal and Parties. IBA Rules of Evidence, art. 6.4.• The Tribunal Appointed Expert Witness May Request Documents, as well as Inspection of and Access to Physical Things from the Parties. IBA Rules of Evidence, art. 6.3.
  112. 112. Inaugural Conference of CIArb International Young Members Group Expert Witnesses Panel Examination or “Hot Tubbing”• The Tribunal May Examine Expert Witnesses Simultaneously or on a Panel Format• The Tribunal May Ask Each Expert Witness to Answer in Turn the Same Question• The Tribunal May Ask Each Expert Witness to Comment on the Testimony of the Other Experts, Including Areas of Agreement or Disagreement• Experts May be Allowed to Question Each Other• Expert Witness Testimony May Become a Discussion• Testimony Becomes Expert Driven, Rather Than Attorney Driven
  113. 113. Inaugural Conference of CIArb International Young Members Group Expert Witnesses Panel Examination or “Hot Tubbing”• Effect: Former “Hired Gun” Expert Witnesses Often Experience a Convergence of Opinions• Effect: Often Extremely Probative of the Truth, But Horrifying to Counsel, Who Lose Control of “Their” Experts• Criticism: Discussion Is Often Led by the Most Assertive or “Litigation- Aware” Experts• Criticism: Time Constraints May Lead to Fairly Superficial Examination of Differences in Expert OpinionSee generally Frances P. Kao, Into the Hot Tub: A Practical Guide to Alternative Expert WitnessProcedures in Int’l Arb., 44 Intl Law. 1035 (2010); Lisa C. Wood, Experts in The Tub, 21 AntitrustABA 95 (2007) .
  114. 114. Inaugural Conference of CIArb International Young Members Group L EWIS & B ARNES ATTORNEYS AT LAWContact Information:Stacey L. BarnesLewis & Barnes5248 Larkin St., Ste. AHouston, Texas 77007USATel: +1 (832) 460-3737Fax: +1 (713) 456-2042E-Mail: staceylbarnes@earthlink.net
  115. 115. Inaugural Conference of CIArb International Young Members GroupGoncalo MalheiroPartner PBBR Law Firm, Lisbon.
  116. 116. Inaugural Conference of CIArb International Young Members GroupChallenging the appointment of arbitrators – whenit is relevant and necessary rather than a tacticaldistraction?Laurence Burger, Counsel of Winston Strawn, LLP, Geneva.
  117. 117. Inaugural Conference of CIArb International Young Members Group• Challenge of arbitrator must only be done for valid reasons• Risk: alienate the arbitrator, the tribunal, the opposite party/counsel - Loss of credibility - Animosity of challenged arbitrator - Strengthens tactical position of opponent
  118. 118. Inaugural Conference of CIArb International Young Members GroupGUIDELINES• National statutes• IBA Guidelines on Conflicts of Interest in International Arbitration
  119. 119. Inaugural Conference of CIArb International Young Members Group National statutes• Article 180 of the Swiss Private International Law Act: 1. An arbitrator can be challenged: a. When it does not have the qualifications agreed by the parties; b. When a ground for recusation as provided by the arbitration rules adopted by the parties exists; c. When the circumstances allow to doubt validly of its independence.2. A party can only challenge an arbitrator who was appointed by itself or whom it contributed to appoint for a ground that came to its knowledge after the appointment. The arbitral tribunal and the other party must be informed without delay of the reason of the challenge.3. In case there is a dispute and if the parties have not set the challenging procedure, the competent judge of the seat of the arbitral tribunal takes a final decision.
  120. 120. Inaugural Conference of CIArb International Young Members Group IBA GUIDELINES ON CONFLICTS OF INTEREST IN INTERNATIONAL ARBITRATION• General principle:- Every arbitrator shall be impartial and independent of the parties at the time of accepting an appointment to serve and shall remain so during the entire arbitration proceeding until the final award has been rendered or the proceeding has otherwise finally terminated
  121. 121. Inaugural Conference of CIArb International Young Members Group IBA GUIDELINES ON CONFLICTS OF INTEREST IN INTERNATIONAL ARBITRATION• Conflicts of Interest: (a) An arbitrator shall decline to accept an appointment or, if the arbitration has already been commenced, refuse to continue to act as an arbitrator if she or he has any doubts as to his or her ability to be impartial or independent. (b) The same principle applies if facts or circumstances exist, or have arisen since the appointment, that, from a reasonable third person’s point of view having knowledge of the relevant facts, give rise to justifiable doubts as to the arbitrator’s impartiality or independence, unless the parties have accepted the arbitrator in accordance with the requirements set out in General Standard (4).
  122. 122. Inaugural Conference of CIArb International Young Members Group IBA GUIDELINES ON CONFLICTS OF INTEREST IN INTERNATIONAL ARBITRATION(c) Doubts are justifiable if a reasonable and informed third party would reach the conclusion that there was a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision.(d) Justifiable doubts necessarily exist as to the arbitrator’s impartiality or independence if there is an identity between a party and the arbitrator, if the arbitrator is a legal representative of a legal entity that is a party in the arbitration, or if the arbitrator has significant financial or personal interest in the matter at stake.
  123. 123. Inaugural Conference of CIArb International Young Members Group IBA GUIDELINES ON CONFLICTS OF INTEREST IN INTERNATIONAL ARBITRATION• Practical application of the General Standards - Lists • Red • Orange • Green
  124. 124. Inaugural Conference of CIArb International Young Members Group Lists Red Green Orange Non-WaivableWaivable Red Previous services Relationship Relationship Red Current between for one of the betwen an parties or other services for arbitrator and arbitrator and involvement in the one of the party and others another arbitrator Identity between case parties involved in the or counsel Relationship of party and arbitrator arbitration arbitrator to the dispute Arbitrator is manager, director or member of supervisory board Previously Previous Arbitrator’s direct or Current Contacts between expressed services services for indirect interest in Arbitrator has significant financial legal opinions against one the arbitrator and one of the one of the parties the dispute interest in one of the party parties parties/outcome of the case Arbitrator regularly advises the Arbitrator’s appointing party/affiliate, and the relationship with arbitrator/firm derives a significant parties or counel financial income therefrom.
  125. 125. Inaugural Conference of CIArb International Young Members Group CASE LAW• Arbitrator expresses a temporary opinion during the course of thearbitration•Dispute between the arbitrators and a party concerning the ratesArbitrator has a direct communication with one of the parties withoutinforming the other• Relationship between arbitrators/an arbitrator and the counsel of oneof the parties in the context of an association• Arbitrator who has ruled against one of the parties in a previousdispute•Wife of the arbitrator appointed by a party works as associate in the lawfirm which represents the party
  126. 126. Inaugural Conference of CIArb International Young Members Group CASE LAW• Arbitrator sat on the Board of Directors of a major international bankwhich had a shareholding in one of the claimants•Arbitrator is sole administrator or sole shareholder of a company whichhas a direct/indirect interest in the outcome of the proceedings•Arbitrator who disclosed regular appointments by the same group ofcompanies• Arbitrator has, for 15 years, been a director of a company who is aparty in the arbitration proceedings, which he left when he retired
  127. 127. Inaugural Conference of CIArb International Young Members Group Session Five - QuestionsPanel Discussion – International Arbitration, Emerging TrendsArran Dowling Hussey
  128. 128. Inaugural Conference of CIArb International Young Members GroupClose & ThanksPat Brady FCIArbDermot DurackArran Dowling-Hussey FCIArb, B.L
  129. 129. Inaugural Conference of CIArbInternational Young Members Group Irish Branch Dinner Westbury Hotel 8pm
  130. 130. Inaugural Conference of CIArbInternational Young Members Group

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