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Inaugural Conference of CIArb International Young Members Group
The Irish Branch Welcomes you to Dublin
Inaugural Conference of CIArb International Young Members Group
Programme For The DayTime Title Speaker
9.30 to 10.00 Conference Launch Pat Brady & Justice Peter Kelly
10.00 to 10.45 Challenges & Benefits Facing Young Arbitration Practitioners
Doug Jones
10.45 to 11.45 International Best Practise, What Can Arbitral Seats Learn From One Another
Panel Discussion
11.45 to 12.15 Coffee Break
12.15 to 1.15 Evolving Practise Under The New York Convention
Klaus Reichert
1.15 to 2.30 Lunch
2.30 to 3.30 Investment Arbitration, Fit For Purpose? Panel Discussion
3.30 to 4.30 International Arbitration, Emerging Trends Panel Discussion
Inaugural Conference of CIArb International Young Members Group
Pat Brady FCIArb, Chair CIArb, Irish Branch
Mr. Justice Peter Kelly of the High Court Assigned Irish
Arbitration Judge
Conference Launch
Inaugural Conference of CIArb International Young Members Group
Doug 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.
Session One
Inaugural Conference of CIArb International Young Members Group
Challenges and Benefits Facing Young Arbitration Practitioners
Professor Doug Jones AM
President, CIArb
Inaugural Conference of CIArb International Young Members Group
Overview
• The Chartered Institute of Arbitrators
• Career pathways
• The region
• Becoming an arbitrator/mediator
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
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
Inaugural Conference of CIArb International Young Members Group
The Region
• Ireland's 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
Inaugural Conference of CIArb International Young Members Group
Becoming an arbitrator/mediator
• Practice
• Peer appointments
• Institutional appointments
www.claytonutz.com
Inaugural Conference of CIArb International Young Members Group
Panel Discussion - International Best Practise, What can arbitral seats learn from one another?
Gordon Blanke
Siobhan Kirrane
Mandy Moore
Dr. Beata Gessel
Session Moderator: Dermot Durack
Session Two
Inaugural Conference of CIArb International Young Members Group
Gordon Blanke MCIArb,
Counsel, Habib Al Mulla & Co,
Dubai, UAE
Arbitration in the UAE
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
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
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
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
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
Inaugural Conference of CIArb International Young Members Group
Siobhán Kirrane
A&L Goodbody
Best International Practice What Arbitral Seats can learn
from one another
Inaugural Conference of CIArb International Young Members Group
Ireland as an arbitral seat
New legislation
What Ireland has learned
What others can learn from Ireland
Inaugural Conference of CIArb International Young Members Group
Successful industries in Ireland
Outward looking
Focus on best practice
Inaugural Conference of CIArb International Young Members Group
New Legislation
ICCA Conference 2008Seminar in April 2007Collaboration Government Arbitration Community
Inaugural Conference of CIArb International Young Members Group
New Legislation
UNCITRAL Model Law Adopted in over 50 countries Tried and tested Body of case law
Arbitration Act 2010 Domestic and International
Inaugural Conference of CIArb International Young Members Group
What others can learn from Ireland
Additions to the Model Law
No appeal from High Court
Arbitration Judges
Benefits
Inaugural Conference of CIArb International Young Members Group
What others can learn from Ireland
Attitude of Judiciary
Mr Justice Frank Clarke
Strong regard to decisions in other jurisdictions
Barnmore Demolition Case
Inaugural Conference of CIArb International Young Members Group
What others can learn from us
Collaboration
Symposium in January 2009
Report submitted to Department of Justice
Grounds of challenge amended
Inaugural Conference of CIArb International Young Members Group
Arbitration Ireland
Advisory 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
Inaugural Conference of CIArb International Young Members Group
In Conclusion
Model Law
Courts and Government
supportive of arbitration
Arbitration Ireland
Inaugural Conference of CIArb International Young Members Group
Canada As the Arbitral SeatMandy E. Moore, FCIArb
Borden Ladner Gervais LLP
Ottawa, Canada
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
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
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
Inaugural Conference of CIArb International Young Members Group
Canadians Involved in the
CIArb• Associates – 28• Members – 38• Fellows – 68• Chartered Arbitrators - 12
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
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
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
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)
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
Inaugural Conference of CIArb International Young Members Group
Thank You
Mandy E. MooreBorden Ladner Gervais LLP
(613) 787-3500
Inaugural Conference of CIArb International Young Members Group
Dr Beata Gessel-Kalinowska vel KaliszDublin, 11 November 2011
Lewiatan Court of Arbitration - an example of exchange
of ideas among arbitral institutions.
Inaugural Conference of CIArb International Young Members Group
• The public interest is best served by the free exchange of ideasJohn 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
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.
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).
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.
Inaugural Conference of CIArb International Young Members Group
Thank you for your attention !
Dr Beata Gessel-Kalinowska vel Kalisz
President of the Lewiatan Court ofArbitration
[email protected] www.arbitrationcourt.org.pl
Inaugural Conference of CIArb International Young Members Group
Panel Discussion – International Best Practise: What can arbitral seats learn from one another?
Dermot Durack, Session Moderator
Session Two - Questions
Inaugural Conference of CIArb International Young Members Group
Coffee Break- 12.15-12.45
Inaugural Conference of CIArb International Young Members Group
Klaus Reichert, Senior Counsel, Law Library, Dublin &
Brickcourt Chambers, London.
Session Moderator:
Gabriel Daly Partner, Beauchamp's Solicitors, Dublin.
Session Three
Inaugural Conference of CIArb International Young Members Group
Evolving Practice under the New York Convention
Klaus Reichert SC
Evolving Practice under the New York Convention Klaus Reichert SC
Inaugural Conference of CIArb International Young Members Group
New York Convention
• Fundamental bedrock of international commercial arbitration since 1958, the New York Convention on the Recognition and Enforcement of Arbitral Award.
• Two functions, recognition and enforcement of arbitral agreements and arbitral
awards. • 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 (Art III).
• Defendant then has limited options and the burden lies with it in respect of proof:
Inaugural Conference of CIArb International Young Members Group
New York Convention
Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
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 of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
Inaugural Conference of CIArb International Young Members Group
New York Convention
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
Inaugural Conference of CIArb International Young Members Group
New York Convention
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country
Inaugural Conference of CIArb International Young Members Group
New York Convention
• Long-held assumption as to two features - pro-enforcement bias throughout the World and the Art V grounds are discretionary even if proven.
• Hugely successful convention and arguments at ICCA 2008 for change were sternly resisted.
• Notable feature, always cited, is the abolition of double exequatur which was the position prior to 1958.
Inaugural Conference of CIArb International Young Members Group
New York Convention
• Recently cases in UK and Australia have made practitioners look at practice under the New York Convention a little differently and consider additional steps: Dallah v Pakistan and Altain Khuder v IMC Mining.
• Concluding question: the 2008 debate, a fresh look again at what is now called the Miami Draft, or a statement on the existing Convention, or nothing at all.
Inaugural Conference of CIArb International Young Members Group
Lunch Break – 1.15 to 2.30
Inaugural Conference of CIArb International Young Members Group
King’s Inns, Henrietta Street
Inaugural Conference of CIArb International Young Members Group
Panel Discussion – Investment Arbitration: Fit for purpose?
Luis Guerrero
Brian Hutchinson
Thomas Sebastian
John Gaffney
Session Moderator: Colm O’ Hoisin Senior Counsel
Session Four
Inaugural Conference of CIArb International Young Members Group
Investment Arbitration in South America
Rules and TrendsLuis Guerrero
Inaugural Conference of CIArb International Young Members Group
Frame on the First Half of the 20th Century
Naciolism from the three first decades of 20th Century and Military
Ditatorship 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
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:
- Arbitration from Law 9.307/96: – binding process – arbitration award has the same
effects of a judicial award
Public Utilities and
Particular ManagmentLaw 11.079
BiddingLaw 8.987
Alternative Dispute
Resolution
Inaugural Conference of CIArb International Young Members Group
From The Ninities – The Turning Point A New Model of Arbitration
Bilateral Investment Threaties – BITs (source: UNCTAD): 14 has been signed by Brazil but 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
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 tool in acordance to Brazilian Constituition
- Argentinian Crisis – Somewhere in the Past? Brazil in 1987
- STJ (Brazilian Highst Legal Court) - State and Arbitration – Power Plant Case – AES Uruguaina (2006)
Brazilian New Role in the World – Bolivia and Equador, Angola, World Cup and Olympics Games
Inaugural Conference of CIArb International Young Members Group
Conclusion
Brazil came from a system where economy have been controlled by the government to na open system
ADR represents na expression of this shift in the government economical approach
Challeng: how to behave in an context in which Brazil is the Investor?
Inaugural Conference of CIArb International Young Members Group
MUITO OBRIGADO!
THANK YOU!
Inaugural Conference of CIArb International Young Members Group
Brian HutchinsonSenior Lecturer, University College Dublin
Inaugural Conference of CIArb International Young Members Group
Thomas SebastianSenior Associate, Allen & Ovary, London.
Inaugural Conference of CIArb International Young Members Group
The Future of Investment Treaty Arbitration
John Gaffney
Inaugural Conference of CIArb International Young Members Group
The European Union and Investment Treaty Arbitration
Inaugural Conference of CIArb International Young Members Group
Topical issues
―Intra-EU BITS
―Extra-EU BITs
―Institutional Issues
―EU law and investment treaty arbitration
Inaugural Conference of CIArb International Young Members Group
Intra-EU BITs
Inaugural Conference of CIArb International Young Members Group
Intra-EU BITs
• EU Commission's court actions and encouragement" of their termination
• Application of EU law
Inaugural Conference of CIArb International Young Members Group
Extra-EU BITs
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)
• Commission's court actions (Finnish case etc. v. Slovak case)
Inaugural Conference of CIArb International Young Members Group
Institutional Issues
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?
Inaugural Conference of CIArb International Young Members Group
Relationship between EU Law and investment treaty arbitration
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?
Inaugural Conference of CIArb International Young Members Group
Panel Discussion – International Arbitration, Fit for purpose:
Colm O’ Hoisin
Session Four - Questions
Inaugural Conference of CIArb International Young Members Group
Panel Discussion – International Arbitration, Emerging Trends
Conor Owens
Stacey Barnes
Goncalo Malheiro
Laurence Burger
Session Moderator: Arran Dowling-Hussey FCIArb, B.L
Session Five
Inaugural Conference of CIArb International Young Members Group
COSTS IN ARBITRATION
ANALYSIS AND EMERGING TRENDS
Conor Owens, Associate, Maples & Calder
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
Inaugural Conference of CIArb International Young Members Group
TALK WILL FOCUS ON:
• WHERE COSTS ARE BEING SPENT
• TECHNIQUES FOR CONTROLLING COSTS
• RECENT COST INITIATIVES
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.
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
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 WITHReasonableness of costs incurredDetailed review of costs
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.
Inaugural Conference of CIArb International Young Members Group
3. RECENT COST INITIATIVES
• AFTER THE EVENT INSURANCE
• DISPUTE RESOLUTION FUNDING
• CONDITIONAL FEE AGREEMENTS
• COST CAPPING
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
Inaugural Conference of CIArb International Young Members Group
RECENT COST INITIATIVES• Dispute Resolution Funding
• Third party pays the costs of dispute resolutionUsually 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
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
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
Inaugural Conference of CIArb International Young Members Group
International Arbitration: Emerging Trends
What a Common Law Lawyer Should Know
Stacy L Barns
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 Case
See Gabrielle Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J.
Transnat'l L. 1313 (2003); Siegfried H. Elsing & John M. Townsend, Bridging the
Common Law—Civil Law Divide in Arbitration, 18 Arb. Int’l 59 (2002).
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Topics
• Witness Statements & Their Interaction with Witness Testimony
• Witness Examination & Preparation
• Trends in Expert Witness Examination
Inaugural Conference of CIArb International Young Members Group
Witness Statements
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 Attorneys
See 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—Civil Law Divide in Arbitration, 18 Arb. Int’l 63 (2002); David P. Roney, Effective Witness Preparation for International Commercial Arbitration, 20 J. Int’l Arb. 429, 430 (2003).
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
Inaugural Conference of CIArb International Young Members Group
Witness Statements:IBA Rules of Evidence
IBA Rules on the Taking of Evidence in International Commercial 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
Inaugural Conference of CIArb International Young Members Group
Witness Statements:IBA Rules of Evidence
IBA Rules of Evidence, art. 4.4
The Arbitral Tribunal may order each Party to submit within a specified time to the Arbitral Tribunal and to the other Parties Witness Statements by each witness on whose testimony it intends to rely, except for those witnesses whose testimony is sought pursuant to Articles 4.9 or 4.10. If Evidentiary Hearings are organized into separate issues or phases (such as jurisdiction, preliminary determinations, liability or damages), the Arbitral Tribunal or the Parties by agreement may schedule the submission of Witness Statements separately for each issue or phase.
Inaugural Conference of CIArb International Young Members Group
Witness Statements: IBA Rules of Evidence
IBA 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.
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
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
Inaugural Conference of CIArb International Young Members Group
Witness Examination
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 Examination
See generally LAWRENCE W. NEWMAN & BEN H. SHEPPARD, JR., Take the Witness: Cross-
Examination in International Arbitration (2010).
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 Hearings
See 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
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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.
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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.
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Expert Witness Examination
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Expert WitnessesParty 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.
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Expert WitnessesTribunal 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.
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Expert WitnessesPanel 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
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Expert WitnessesPanel 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 Opinion
See generally Frances P. Kao, Into the Hot Tub: A Practical Guide to Alternative Expert Witness Procedures in Int’l Arb., 44 Int'l Law. 1035 (2010); Lisa C. Wood, Experts in The Tub, 21 Antitrust ABA 95 (2007) .
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LEWIS & BARNESATTORNEYS AT LAW
Contact Information:
Stacey L. Barnes
Lewis & Barnes
5248 Larkin St., Ste. A
Houston, Texas 77007
USA
Tel: +1 (832) 460-3737
Fax: +1 (713) 456-2042
E-Mail: [email protected]
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Goncalo Malheiro Partner PBBR Law Firm, Lisbon.
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Challenging the appointment of arbitrators – when it is relevant and necessary rather than a tactical distraction?
Laurence Burger, Counsel of Winston Strawn, LLP, Geneva.
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• 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
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GUIDELINES
• National statutes
• IBA Guidelines on Conflicts of Interest in International
Arbitration
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• 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.
National statutes
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IBA GUIDELINES ON CONFLICTS OF INTERESTIN 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
Inaugural Conference of CIArb International Young Members Group
IBA GUIDELINES ON CONFLICTS OF INTERESTIN 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).
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IBA GUIDELINES ON CONFLICTS OF INTERESTIN 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.
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IBA GUIDELINES ON CONFLICTS OF INTERESTIN INTERNATIONAL ARBITRATION
• Practical application of the General Standards
- Lists
• Red
• Orange
• Green
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Lists
Red
Waivable Red
Relationship of arbitrator to the
dispute
Arbitrator’s direct or indirect interest in
the dispute
Arbitrator’s relationship with parties or counel
Non-Waivable Red
Identity between party and arbitrator
Arbitrator is manager, director or member of supervisory board
Arbitrator has significant financial interest in one of the
parties/outcome of the case
Arbitrator regularly advises the appointing party/affiliate, and the
arbitrator/firm derives a significant
financial income therefrom.
Orange
Previous services for one of the
parties or other involvement in the
case
Current services for one of the
parties
Relationship betwen an
arbitrator and another arbitrator
or counsel
Relationship between
arbitrator and party and others involved in the
arbitration
Green
Previously expressed
legal opinions
Previous services
against one party
Current services for one of the
parties
Contacts between the arbitrator and one of the parties
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CASE LAW• Arbitrator expresses a temporary opinion during the course of the
arbitration
• Dispute between the arbitrators and a party concerning the ratesArbitrator has a direct communication with one of the parties without informing the other
• Relationship between arbitrators/an arbitrator and the counsel of one of the parties in the context of an association
• Arbitrator who has ruled against one of the parties in a previous dispute
•Wife of the arbitrator appointed by a party works as associate in the law firm which represents the party
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CASE LAW
• Arbitrator sat on the Board of Directors of a major international bank which had a shareholding in one of the claimants
• Arbitrator is sole administrator or sole shareholder of a company which has a direct/indirect interest in the outcome of the proceedings
• Arbitrator who disclosed regular appointments by the same group of companies
• Arbitrator has, for 15 years, been a director of a company who is a party in the arbitration proceedings, which he left when he retired
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Panel Discussion – International Arbitration, Emerging Trends
Arran Dowling Hussey
Session Five - Questions
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Close & Thanks
Pat Brady FCIArb
Dermot Durack
Arran Dowling-Hussey FCIArb, B.L
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Irish Branch DinnerWestbury Hotel 8pm
Inaugural Conference of CIArb International Young Members Group