1

SESSION A – THE TRIBUNAL, COUNSEL AND PARTIES I

1.

(i)

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(iii)

Expanding the pool of arbitrators Much has been said at conferences, by institutions, and in writings but there seems to be even less diversity now than there was 5 years ago? Is there still something to be done or has the market spoken? Does the LCIA (and other arbitration institutions) have a responsibility to widen the pool of arbitrators? Is it right for the institution to take risks in appointing inexperienced arbitrators when parties have consciously not done so? Are directories bad for diversity in the pool of arbitrators?

2.

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Choosing the tribunal Many practitioners spend countless hours on arbitrator selection. Is this a good use of time? What are the most important characteristics to look for in a candidate arbitrator? The quality of LCIA arbitration depends in part on the performance of the arbitrators. When it has been left to the LCIA Court has it made good appointments? Is there any respect in which you would like the Court to act differently? Section 17 of the English Arbitration Act 1996 provides that each of the two parties to an arbitration agreement are to appoint an arbitrator and that if one party refuses to do so, or fails to do so, the other party may give notice to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator (in simplified terms). Any experiences? Any decisions? Any pitfalls? There is more and more discussion around the creation of electronically accessible databases to assess arbitator 'performance' (for want of a better word). There is also argument that the process for selecting arbitrators should be more transparent and that key information about arbitrators should be more equally accessible (viz. Prof. Catherine Rogers' "International Arbitration Information Project"). During the colloquium on arbitator selection organized jointly by the CCIAG and the ICC Institute in November 2013, a young in-house practitioner even (provocatively) argued that a 'select-your-arbitrator' 'app' for i-phones may be developed within the next five years! Are we facing an 'inevitable' (r)evolution - and if so, should the arbitration community and institutions "control [their] own destiny" (as GE's Jack Welch would have said) and reflect on how such a database offering the best conditions of confidentiality and objectivity sh/could be created ? (Welch would add "or someone else will [control your destiny]".)

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3.

(i)

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Choosing the Chair Given the current enthusiasm for guidelines, is there any merit in developing “best practice” guidelines for the selection of the Chair of the Tribunal? Is more guidance needed (or at least, would it be helpful) on the extent of the communications between a nominating party and a party-nominated arbitrator on the appointment of the presiding arbitrator? Arbitration clauses frequently provide that the Chairman is to be appointed by the co-arbitrators. In practice, it is further often orally agreed that the co-arbitrators will discuss the appointment among themselves, but in consultation with their parties. It is not so rare that the parties object to all names put forward and that the Chairman is finally appointed by an arbitral institution or even a court. Is this acceptable in light of the contractual provision? On the other hand, is it conceivable that co-arbitrators decide to ignore the parties’ objections, even if the objections should be vague or not motivated?

4. Party appointed arbitrators Should the role of the party-appointed arbitrator not be defined clearly and honestly? Is it not a frequent observation that party-appointed arbitrators rather argue or defend the position of the party who appointed them? Repeating a mantra that allegedly the role of all three arbitrators is the same, does not help. On the other hand, there is a clear consensus that in international arbitration parties and arbitrators should have more place. I would add: if not otherwise agreed by the parties. Anyhow, is it not sufficient to stipulate that any ex parte communication between the party-appointed arbitrator and the appointing party is forbidden? Will it not be worth having such a rule clearly spelled out in arbitration laws and arbitral rules? As long as this is not the case, is it advisable to spell this duty out in a procedural order or, in case of an ICC arbitration, in the terms of reference?

5. What is the proper etiquette for a wing person Thoughts from the Chair? Thoughts from the wings?

6. The virtues of a sole arbitrator At most conferences we are frequently inundated with complaints concerning the delay in rendering the final award and ultimately the escalating costs of international commercial arbitration – Does the solution lie in appointing sole arbitrators instead of a tribunal of three. What are the pros and cons of this approach from the point of view of: (i) the appointing bodies; (ii) the arbitrators; and (iii) the users.

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7.

(i)

(ii)

The lazy arbitrator In a 3-person tribunal in an institutional case, it is clear that one of the co-arbitrators has not read any of the contract in dispute, the submissions, the transcript etc etc and has made only a perfunctory contribution to drafting the Award. When it comes to submitting timesheets, that arbitrator is always “travelling”, “out of the office” etc and always submits a few days after the other two; remarkably, that late timesheet invariably closely matches the other co-arbitrator’s. Other than reporting his/her suspicions to the Presiding Arbitrator, what can/should the latter co-arbitrator do ? And what can/should the Presiding Arbitrator do ? What can we do about lazy arbitrators?

8. The busy arbitrator We all know that top arbitrators are very busy. How many concurrent appointments is too many?

9. Judges as arbitrators Each of s.93 Arbitration Act 1996 and s.25 Arbitration (Scotland) Act 2010 permit certain (sitting) judges to sit as arbitrator; it is understood that there are 20‐40 such cases/year in England. Do you consider such an option helpful in your own jurisdiction ? (NB we are all aware of the saga in Delaware and, no doubt, one of our US colleagues will bring us up-to-date on that)

10.

(i)

(ii)

(iii)

(iv)

(v)

Conflicts How many dinners can I have with you before I am conflicted? What is the current position as to arbitrators/counsel from the same chambers, in institutional and ad hoc arbitrations? Is it still sustainable, with the continuing growth of law firms and increase in arbitrator challenges, for partners in large international law firms to continue to accept appointments as arbitrators? Conflicts disclosures: is there need for more transparency on the part of arbitrators? Arbitrators’ duty to disclose versus parties’ duty to make their own enquiry as to the arbitrators’ perceived independence and impartiality The IBA Guidelines and other rules set rather strict standards of disclosure for arbitrators. In all these rules and

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(vi)

(vii)

(viii)

(ix)

(x)

guidelines, the emphasis is on the arbitrators. How does this affect the parties’ duty to carry out their own due diligence on arbitrators in order to preserve their right to challenge them in subsequent proceedings? Why should there be a need to “disclose” public information easily available on the web? Any practical experiences or suggestions? In a recent investor-state case, the independent review of a challenge to an arbitrator rejected multiple appointments as a basis for disqualification on the ground that these past appointments had been known by the challenging party for some time. The challenge was, however, upheld on the basis of the arbitrator's response to the challenge in which he questioned the challenging party's ethics in making use of a confidential record in another case. It was held that that response raised a serious concern that the arbitrator was no longer capable of impartial conduct. The question arising from this decision seems to be what are the proper boundaries, if any, for challenges? To what extent should a challenged arbitrator respond directly? If the chair of the tribunal which rendered on jurisdictional decision later turned out to be in violation of conflict rules, should the entire members of the tribunal, rather than the chair alone, be excluded as their decisions are tainted by the conflict of the chair? Is the question of issue conflicts a real issue? Are advance waiver requests a good or bad trend; are arbitral institutions being too reluctant to accept? Is it ultimately a question of party autonomy? The IBA Guidelines on Conflict of Interest in International Arbitration are under review. Based on your experience as an arbitrator, is there any practical suggestion you would wish to make to the subcommittee in charge of the revision and if so what and why? Any specific issue you consider is not well addressed or not addressed at all in the Guidelines?

11.

(i)

(ii)

Challenges The pros and cons of challenges How should arbitral institutions deal with challenges to arbitrators – as an administrative matter, like the ICC or by way of a quasi-judicial inquiry, like the LCIA?

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(iii)

(iv)

(v)

The ICSID tribunal in the case of Caratube and Hourani v Kazakhstan [see GAR article dated 21 March 2014] recently disqualified the state appointed arbitrator which was reported as being the first time that ICSID arbitrators have done this. Obviously, there have been a number of such challenges in other cases, but the questions which may arise from this action, include: • Is it suitable for challenges to be addressed by co-arbitrators instead of some other institutional forum? • The ground of recent appointments (over a three year period) in other cases was dismissed, but really only

on the basis of no demonstrated financial dependence in relation to such appointments. Is this approach consistent with best international practices?

Since the publication of the well-received LCIA Arbitrator Challenge of Digests in the autumn of 2011 which covered arbitrator challenges on the grounds of lack of independence or impartiality from 1996 to 2010 has there been a significant reduction in the number of challenges, if not why not and is there any plan to publish a second volume? Can anything be done to reduce the growing number of arbitrator challenges? In US football and baseball, each side has a certain number of challenges and loses them if they are rejected. Would costs be an appropriate sanction for a failed challenge?

12. LCIA matters (a) Should we vary the traditional Tylney symposium model? Perhaps a guest speaker on the topic of the day?

A menu of breakout groups which delegates can choose between? Panel sessions? A Cambridge Union debate? The opportunity to quiz or provide feedback to the LCIA’s Registrar and DG?

(b) Are you happy with the service provided by the LCIA’s casework team in London? Is there anything they

could do better in order to improve the overall offering? (c) What experience have you had of arbitration in the offshore centres where the LCIA has a presence? Have

you had dealings with the LCIA there? The DIFC-LCIA Arbitration Centre in Dubai LCIA India in Delhi LCIA-MIAC in Mauritius

13. Regional arbitration centres Is the creation of a multitude of regional arbitration centres a positive or negative development in the international arbitration activity? Do these centres serve efficiently a lower segment of the international commercial activity or are they introducing an element of confusion and/or uncertainty in the market?

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SESSION B – THE TRIBUNAL, COUNSEL AND PARTIES II

14.

(i)

(ii)

(iii)

(iv)

Emergency arbitrators Does the availability of an emergency arbitrator adversely impact upon a party's prospects of obtaining urgent interim relief from a national court? Is enforceability potentially lost if there is no opportunity to be heard? Would it be appropriate to follow the practice of some domestic courts where interim interim relief is granted, for example, to preserve the status quo for a matter of 3 or 5 days until the parties may more fully respond to the application for emergency relief? Should there always be undertakings to be answerable for any damages arising from an emergency order, properly secured, from the party seeking the interim/emergency relief? A number of institutional rules of arbitration now provide for an “emergency arbitrator” to determine applications for interim relief before the arbitral tribunal is constituted. Whilst such decisions are “morally binding” and may generally be voluntarily complied with by the parties, what options are available in order to enforce such decisions in the absence of voluntary compliance? Is it time for national laws to be amended to enable enforcement of decisions of emergency arbitrators? Is an emergency arbitrator procedure necessary for the LCIA to compete with the arbitral institutions that have already adopted one? Does this justify the inclusion of such a procedure in any event?

15. Identifying party representatives For the purposes of identifying all members of the respective parties’ legal teams would it be more effective for all legal representatives to sign an attendance sheet and forward same to the arbitral tribunal before the commencement of any hearing?

16.

(i)

(ii)

Guidelines on party representation The IBA Guidelines on Party Representation in International Arbitration: Are they gaining acceptance? Are they useful to the arbitral community? The IBA Guidelines on party representation were promulgated a year ago. What practical benefit have they brought to the process? In particular, do they deal adequately with pre-appointment communications with arbitrators? Should there be an automatic duty of disclosure of pre-appointment communications in order to assure transparency between the parties. If so, whose duty is it, the arbitrators, or that of counsel?

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(iii)

(iv)

(v)

(vi)

(vii)

(viii)

The IBA Guidelines on party representation have created enormous debate all over the world. I would posit that they are a positive development, but would welcome views. The guidelines allude to the possibility of exclusion of counsel. How do delegates feel about this subject? Ethical Rules become more popular. Some are issued by arbitral institutions, others by organisations such as the IBA. Are these organisations the most efficient ones to issue such rules? What about IFCAI? Why does this institution not become active in this area? The fact that a substantial number of arbitral institutions are members may on the one hand complicate the finding of a common set of rules, on the other hand, once this is achieved, it may lend substantial authority to such rules. Regulating counsel's conduct in international arbitration: The right step, or a step too far? Is the power proposed in the new Rules at draft Article 18.6 an unwanted burden or lacking sufficient teeth? Article 18.6 of the draft Revised LCIA Arbitration Rules and Annex on “General Guidelines for the Parties’ Legal Representatives” Article 18.6 of the Revised LCIA Arbitration Rules provide: “In the event of a complaint to the Arbitral Tribunal by a party against another party’s legal representative or by the Arbitral Tribunal upon its own initiative the Arbitral Tribunal may decide after consulting the parties and granting that legal representative a reasonable opportunity to answer the complaint whether or not the legal representative has violated the general guidelines; and if such violation is found by the Arbitral Tribunal, the Arbitral Tribunal may order any or all of the following sanctions against the legal representative: a written reprimand; a written caution as to future conduct in the arbitration; [a reference to the legal representative’s regulatory and or professional body]; and any other measure necessary to maintain the general duties of the Arbitral Tribunal under Article 14.4(i) and (ii).” [duty to act fairly and impartially and ensure the parties’ right to be heard is respected and duty to adopt a time and cost efficient procedure.] Why is this provision (and the Annex to the draft Revised Rules) necessary? Is it ever an issue to have the same body (the arbitral tribunal) decide on both the dispute on the merits and counsel’s conduct? Is there a reason why the LCIA should not include in the Annex a broader guideline on an advocate’s duty of candor toward the tribunal? Consider American Bar Association Model Rule 3.3: “(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law

previously made to the tribunal by the lawyer;

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(ix)

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the

lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

Should the proposed power in the new Rules, at draft Article 18 (to control changes to the composition of a party’s legal representatives) extend to experts?

17. The ethical wasteland Is arbitration the so-called “ethical wasteland” of which some have warned about? Are ethics in arbitration a real and substantial concern (and is that concern more prevalent than in the courts)? If there is a substantial concern, is it the product of a lack of standards or of behaviour or both (or something else)? Do the existing regulations applicable to lawyers in their home jurisdiction and/or the arbitral seat and the broad authority of arbitrators provide the latter with the tools needed to police the conduct of parties and counsel? Are further guidelines, codes or rules, whether mandatory or voluntary, needed or likely to be useful?

18.

(i)

(ii)

(iii)

(iv)

Guidelines Do we have too many guidelines – or not enough? In recent years, we have seen a proliferation of "rules" and "guidelines" for the conduct and governance of the international arbitration process. Is this a case of the Devil finding work for idle hands? Is it time to recognise guidelines as being binding and not merely optional? At ICCA 2012 a panellist deplored an onslaught of 'legislitis' affecting arbitration. At ICCA 2014 there were calls for more 'self-regulation'. What happened during those two years? Are we witnessing a classical swing of the pendulum or is it a lasting tendency? Views? Pro or con?

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19. Arbitrator resignation In your jurisdiction, is there express power in law for an arbitrator to resign? Whether or not so, does the law provide for the consequences of such resignation? The Arbitration Act 1996 provides (s.25) for the consequences but does not provide any express power for resignation. Rule 15 of the Arbitration (Scotland) Act 2010 covers resignation and Rule 16 provides that the arbitrator's immunity (otherwise applicable absent bad faith as in s.29 AA96) may be removed if he/she resigns; however, Rule 16 provides for an application to the Court to limit that liability. In essence, if the resignation was justified/reasonable (e.g. by reference to one of the 5 permitted grounds for resignation), it is intended that the Court will order a limit on liability (as in s.25(4) AA986); if the resignation was not justified (e.g. the arbitrator merely walks out) the potentially unlimited liability remains.

20. Arbitrator immunity Is arbitrator immunity consistent with party appointment, particularly in ad hoc proceedings?

21.

(i)

(ii)

Disparity of fees What, if anything, should a Chairman do when a party-appointed arbitrator submits in support of a claim for fees a time sheet which includes pre-hearing reading time five times longer than that spent by either of the other members of the Tribunal? How does the LCIA as an institution deal with large differences in hours among the Tribunal members, if at all? When the arbitrators are remunerated on an ad valorem basis and (by default) on the basis of 40/30/30 split among them, how frequent is it for the co-arbitrators to offer to vary the split in favour of the presiding arbitrator? Is time spent all that matters in this regard?

22.

(i)

(ii)

(iii)

Limits of enquiry To what extent are the parties and the Tribunal bound by the parties’ pleadings? If a party fails to avail itself of an important fact or argument should the tribunal raise the question itself? What are the acceptable limits for the pro-active arbitrator in an adversarial arbitration e.g. in raising new claims or defences? Particularly where there is no participating respondent, to what extent does the tribunal have an obligation to explore the parties' cases (both on the facts and law)?

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23.

(i)

(ii)

Secretaries to the tribunal Should the use of Tribunal Secretaries be encouraged or deprecated? There has been much debate over the years as to the appropriate scope of the duties of an arbitral secretary. Young ICCA has recently published its Guide on Arbitral Secretaries. Article 3 of the Young ICCA Guide states that “with appropriate direction and supervision by the arbitral tribunal, an arbitral secretary’s role may legitimately go beyond the purely administrative” and lists the following tasks as permissible for an arbitral secretary to perform: (a) Undertaking administrative matters as necessary in the absence of an institution;

(b) Communicating with the arbitral institution and parties;

(c) Organizing meetings and hearings with the parties;

(d) Handling and organizing correspondence, submissions and evidence on behalf of the arbitral tribunal;

(e) Researching questions of law;

(f) Researching discrete questions relating to factual evidence and witness testimony;

(g) Drafting procedural orders and similar documents;

(h) Reviewing the parties’ submissions and evidence, and drafting factual chronologies and memoranda

summarizing the parties’ submissions and evidence;

(i) Attending the arbitral tribunal’s deliberations; and

(j) Drafting appropriate parts of the award.

In relation to remuneration, the Young ICCA Guide states that “unless otherwise determined by the arbitration institution or agreed upon by the parties, the remuneration and reasonable expenses of the arbitral secretary should be paid: (i) out of the arbitral tribunal’s fees where the arbitral tribunal is paid on the basis of the amount in dispute; or (ii) by the parties where the arbitral tribunal is paid on an hourly basis” (Article 4(3)). Commentary to this Article states that, where the tribunal is to remunerate the secretary as in scenario (i), the whole tribunal should share this expense, not just the Chair. (1) Does the list of tasks set out in Article 3 of the Young ICCA Guide represent an acceptable delineation of

the duties of a tribunal secretary taking into account inter alia the results of the Queen Mary International Arbitration Survey 2013 which reported the concerns of international commercial arbitration users relating to costs and delays?

(2) Arbitration institutions take different approaches to the question of remuneration of tribunal secretaries.

The ICC says that the tribunal must remunerate the arbitral secretary and the parties are obliged only to pay costs and expenses of the secretary. Other institutions, such as the LCIA, have no such prohibitions and therefore if the parties agree to the appointment of a tribunal secretary, all remuneration is paid by the parties. Which is the better approach? Does the ICC approach unduly impinge upon party autonomy? Does it impede the education and training of young lawyers through service as tribunal secretaries?

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24.

(i)

(ii)

Mediation Would it make sense for the LCIA to send a standard letter to the claimants and respondents on the filing of a case formally suggesting mediation under the LCIA rules to break the ice? Downsides? Should ICSID and other institutions provide and encourage mediation services in investor-state cases?

25. Non-mediation ADR Are participants seeing a greater/lesser/the same use of non-Mediation ADR (NMA) than previously (f.t.a.o.d., NMA includes Expert Determination, Early Neutral Evaluation, Private Mini-Trials, Med-Arb, Arb-Med etc etc)

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SESSION C – ISSUES OF JURISDICTION

26.

(i)

(ii)

(iii)

(iv)

(v)

Applicable law The New York Convention provides that recognition and enforcement of an award may be refused, inter alia, if the award “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.” (Art. V.1(e), emphasis added.) The use of the disjunctive suggests that an arbitration could be conducted under a law other than the law of the seat. Does anyone have actual experience with conducting an arbitration in one country, but subject to the arbitration law of another country? Is it time for arbitration institutions’ “model” arbitration clauses to routinely prompt parties to provide for the law of the arbitration agreement, as distinct from and in addition to the governing law of the contract? It is rather rare that arbitral tribunals stipulate clearly by which means they will establish the content of the applicable law. Would it not be advisable to be transparent and explicit in this respect? An appropriate rule may well be that the parties may plead the content of the law and the arbitral tribunal is free to establish the content of the law by its own means. Should an arbitral tribunal do the latter, is the arbitral tribunal obliged to inform the parties that it is doing so? Further, under which circumstances is the Arbitral Tribunal obliged to share the results of such legal research with the parties? How should arbitrators respond to attempts to rely upon "mandatory" laws other than the lex contractus which purport to invalidate or render nugatory the lex contractus? Would failure to consider and/or apply such laws be in breach of a broadly worded arbitration clause such as the LCIA recommended clauses? In the rules as at present, more precisely in Article 22.3, I am missing the perhaps overly banal sentence that the arbitral tribunal "shall take account of the provisions of the contract, if any, of the parties, and of any relevant trade usage". (this is the wording in the ICC Rules, Article 21.2). Taking account of the contract goes without saying, but the significance lies in the reference to "any relevant trade usage", which allows a tribunal to look beyond the four corners of the contract. I have experienced the importance of this reference in several commodity arbitrations where parties had in fact established a pattern of trade departing from (and beyond) the terms of their short commodity contract.

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27.

(i)

(ii)

(iii)

The seat Party A commences an arbitration in London pursuant to an alleged arbitration agreement. Party B participates in the arbitration but challenges the jurisdiction of the Tribunal on the basis that it did not agree to arbitrate in London but agreed to arbitrate in New York in an otherwise near identical agreement. Party A applies for the existing London tribunal to transform into a New York tribunal despite the objections of Party B, whose position is that the existing tribunal can only decide it has no jurisdiction. English law does not allow a tribunal to be peripatetic and move seats (without the consent of the parties). Does any jurisdiction allow this? The authors of “A Guide to LCIA Arbitration” state that the LCIA “is still widely perceived as a very English institution. The general feeling is that the LCIA Rules are chosen as a complement to a choice of English governing law and thus justifying a choice of London as a seat and the consequent retention of English lawyers ...” Is this a good thing or a bad thing? There seem to be more jurisdictions than ever competing for arbitration business? Is this too much of a good thing?

28. Contract sanctions Will the “contract sanctions” being considered by the UK Government in relation to the Ukraine crisis harm London as a seat of arbitration?

29. Mandatory institutional rules If the institutional rules are part of the parties' agreement and the institutions do not specify which rules are mandatory, when does an institutional arbitration stop being an institutional arbitration? And does it matter?

30.

(i)

(ii)

Joinder Would it be worth considering rules on joinder of third parties in the next revision of the LCIA Rules? The new Vienna Rules contain the following provision: "The joinder of a third party in arbitral proceedings, as well as the manner of such joinder, shall be decided by the arbitral tribunal upon the request of a party or a third party after having heard all parties and the third party to be joined and having taken into account all relevant circumstances of the case." To what extent, should a tribunal have authority to rule on the consolidation and/or joinder matters in the absence of party’s consent? Should the tribunal consider enforceability of the award in exercising the authority to interpret the joinder/consolidation rules?

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31. Class arbitration

In the United States, the Supreme Court in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) held that an arbitral class action is permitted only if the parties have authorized it. In Oxford Health Plans LLC v. Sutter (2013), the Supreme Court, however, upheld an arbitrator’s determination that the following clause permitted a class action:

No civil action concerning any dispute arising under this Agreement shall be instituted before any

court, and all such disputes shall be submitted to final and binding arbitration in New Jersey,

pursuant to the rules of the American Arbitration Association with one arbitrator.

The arbitrator reasoned that this clause required arbitration of any dispute that was prohibited from being brought in court. A class action, the arbitrator determined, “is plainly one of the possible forms of civil action that could be brought in a court” absent the arbitration agreement. Therefore, the arbitrator decided that “on its face, the arbitration clause … expresses the parties’ intent that class arbitration can be maintained.” The Supreme Court upheld the decision: “The arbitrator did what the parties requested: He provided an interpretation of the contract resolving that disputed issue. His interpretation went against Oxford, maybe mistakenly so. But still, Oxford does not get to rerun the matter in a court. Under §10(a)(4), the question for a judge is not whether the arbitrator construed the parties’ contract correctly, but whether he construed it at all. Because he did, and therefore did not ‘exceed his powers,’ we cannot give Oxford the relief it wants.” These are boundary lines drawn in the United States. Does anyone have experience with class arbitration in an international arbitration setting? If no one does, what procedural issues do class arbitrations present under the LCIA’s rules or the rules of other administering bodies?

32. Multiple jurisdiction clauses In the absence of a settlement, how may an arbitration agreement become inoperative to the extent of undermining the jurisdiction of the arbitral tribunal? Multiple jurisdiction clauses may be one answer. Are there others?

33. Unilateral arbitration clauses The very different approaches of civil and common law. Views? Comments?

34. CAS Is the February 2014 decision by the Munich Court in case no. 37 O 28331/12 regarding contractual clauses providing for the exclusive jurisdiction of the Court of Arbitration for Sports (CAS) a one off? Or is it anticipated that similar non-consent / public policy arguments will be run successfully in other jurisdictions? Views of the conference on the decision.

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35. Anti-suit injunctions The English courts have recently used Article 37 (1) of the Senior Courts Act to provide relief in support of arbitration where the Arbitration Act itself would not have allowed the relief sought (e.g., AES-UST Kamenogorsk LLP to grant an anti-suit injunction where an arbitration in England was neither on-going nor contemplated, and Cruz City to require a losing party to disclose its worldwide assets for purposes of enforcement). Thoughts?

36. Emergency arbitrators’ jurisdictional rulings To what extent can an emergency arbitrator examine and decide upon: a. Their own jurisdiction? b. The jurisdiction of the “substantive” tribunal (on whose jurisdiction the emergency arbitrator’s jurisdiction

is based)? In the second case, how should an emergency arbitrator test the jurisdiction of the substantive tribunal if it is put in issue?

37. Court review of the tribunal’s jurisdiction How should we approach the question of court review of the tribunal’s jurisdiction (a) a brief review to confirm the existence of an arbitration agreement (the “French model”) or (b) a full de novo hearing on the issue (the “English Model”? Why? And have your views changed in recent years?

38. Judicial review With reference to US jurisprudence (e.g. Hall Street v Mattel), in what other jurisdictions can the parties contract for a wider scope of judicial review than the statutory baseline?

39.

(i)

BG v Argentina The March 5, 2014 decision of the United States Supreme Court in BG Group v. Argentina was generally welcomed by American arbitration lawyers. The Court of Appeals for the D.C. Circuit had subjected the jurisdictional decision of the arbitrators in that BIT arbitration under UNCITRAL Rules to de novo review, leading the Court of Appeals to vacate the award on the grounds that the arbitrators had exceeded their powers by excusing BG Group from the requirement in the BIT that it must litigate in the courts of Argentina for 18 months before commencing an arbitration. The Supreme Court reversed that decision and found, in a 7-2 decision, that compliance with a “procedural” requirement is presumptively a question for the arbitrators, whose decision is entitled to deferential review. The majority’s decision has been criticized for starting with the question of what the result would have been if the local-litigation requirement had been contained in an ordinary commercial contract, rather than a treaty. What has the reaction to the decision been in other countries?

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The decision dated 5 March 2014 of the US Supreme Court in BG v Argentina: a model decision for international arbitration everywhere?

40. Specialist judges According to some New York lawyers, as from September 2013 international commercial arbitration matters will be referred to a specialist judge in the Commercial Division of the New York Supreme Court who it is said is well versed in international commercial arbitration. Query? Should courts in other regions (European/Arab/African/South America/Asia} adopt this practice and create specialized international arbitration courts to minimise repeated cases of unjustifiable resistance to the enforcement of foreign arbitral awards.

41.

(i)

(ii)

BITs Can we distinguish between the policy discussion and the application of the law by tribunals? The distinction between jurisdiction and admissibility remains unclear in investment arbitration. Should the distinction be left to each Arbitral Tribunal? Would it make sense for an arbitral institution to formally clarify the issue?

42. Investor-state arbitration The proposed deletion of investor-state arbitration from the European Union’s trade agreements with Canada and the USA: what is wrong with civil society in the European Union?

43. Investment arbitration What are delegates’ views of the present critical discussion regarding investment arbitration?

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SESSION D – QUESTIONS OF EVIDENCE

44. IBA Rules on the Taking of Evidence Is the application of the IBA Rules on the Taking of Evidence equally appropriate in a dispute between two parties from common law backgrounds, or are they really intended to deal with parties approaching the evidential aspects of the case from the different civil law and common law traditions? Is it the background of the lawyers or the parties that matters the most for the purposes of this analysis? Does the choice of seat feed into the consideration of whether the application of the IBA Rules is appropriate?

45.

(i)

(ii)

Burden of proof The theory seems simple under many legal systems: The more convincing story wins. However, is this really true in practice? Is there a minimum threshold the party carrying the burden of proof must meet? Would an allegation by one party be a sufficient basis for the finding of facts if the other party does not even make any concrete allegations to the contrary? Should Tribunals raise (i) who has the burden of proof and (ii) the standard of proof to be met: a. early in the arbitration; and/or b. in the Final Award?

46.

(i)

(ii)

Statements of Case Should Statements of Case be accompanied by the essential documents upon which a party relies? Do Statements of Case suffer from length at the expense of clarity?

47.

(i)

(ii)

Document production Particularly in England there are some parties and their lawyers who want to have disclosure governed by the Civil Procedure Rules as used in the English Court. If it is only one party advocating such an approach, and it is opposed, no difficult arises and the Tribunal can proceed with disclosure on a more appropriate basis. However, if the parties agree they want the CPR to apply is the general view that the Tribunal should let them get on with it on the basis of party autonomy or should the Tribunal express its unhappiness or more? How can tribunals effectively control the number of documents presented at hearings when invariably only a small percentage are either relevant or even referred to?

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(v)

(vi)

(vii)

(viii)

The principle prevails in many legal systems that “ Incumbit (Onus) Probatio”. How is this principle concretely applied in the context of the tribunal’s decisions relating to the Parties’ requests for production of documents? A German arbitration practitioner considers that “document production is probably the feature in international arbitration which contributes most to the time and cost explosion ...”. Therefore, he proposes “absolutely no document production” (see Arbitration International 2013, vol. 29 N° 3, pages 459 ff.). This may indeed improve time and costs, but is it realistically acceptable to parties? Parties, lawyers and arbitrators often demonstrate different approaches concerning the production and use of documents “for impeachment purposes”. What is best practice as regards the filing, identification and use of impeachment documents? Should tribunals require the disclosure of impeachment exhibits? If the subject of impeachment exhibits is not raised by a tribunal, should counsel raise it? If so, at what juncture of the proceeding? Search technology is evolving rapidly. When used correctly, “predictive coding” and other forms of computer-assisted review allow a party making disclosures to search large amounts of electronically stored information both high recall and high precision. In the United States, courts are now being approached by requesting parties to order producing parties to utilize search tools that, the argument goes, will be more efficient and economical in finding relevant documents. The response to date has been that a producing party has the right to determine how that party responds to a request for production and as long as the search is conducted reasonably and in good faith, a court should not intervene in the selection of the method of production. Article 3.3(a)(ii) of the IBA Rules on Taking Evidence in International Arbitration contains this text: “in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner.” Has anyone experienced a demand by a requesting party that a particular type of search technology or combination of search technologies be used because it or they would be more “efficient and economical”? If so, what did the tribunal do? Do the IBA rules contain a bias in favor of a means of search chosen by a requesting party if it can be shown that the means would be efficient and economical? Is there any experience with what it means to search in an “efficient” manner? In investment treaty arbitration especially, is document disclosure really worth pursuing in all circumstances? Does it add anything beyond costs and delay?

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48. Documents-only arbitration Again considering frequent criticism of international commercial arbitration is there any desire to encourage the use of documents only arbitrations to minimise delays and costs in fairly straightforward cases involving modest amounts of money?

49. Adverse inferences Should a party that asks for “adverse inferences” to be drawn as a sanction against the other party volunteer, or be required, to: a. stipulate precisely what the adverse inference is that they seek; b. justify why that adverse inference should result from the breach to be sanctioned?

50. Photographs as evidence In your jurisdiction, are JPEGs or other electronic photographs accepted as valid evidence? If not, what is acceptable as photographic evidence? You may recall that, in one of those innumerable surveys around year 2000, 10 photographs were selected as being the most iconic of the 20th century; five are known to be, one way of the other, fake or manipulated, and that was before digital photography.

51.

(i)

(ii)

Privilege ICDR has recently become the first major institution to stipulate a specific approach to privilege in its rules. Have other institutions missed a trick? Does the ICDR go too far in stipulating the standard that the tribunal should apply? What litigation privilege (as opposed to attorney‐client/legal advice privilege) rules should a Tribunal/counsel apply? Given that litigation privilege arises only in contemplation of the arbitration why not apply the rules of the arbitral seat where it has been agreed to in the arbitration agreement?

52. Witness preparation International arbitration practitioners often debate the issue of ‘witness preparation’. Is the idea of a ‘level playing field’ a realistic one and, if so, at what level would the field be set?

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53.

(i)

(ii)

Oral testimony Are oral hearings of legal submissions/witnesses a crucial part of the arbitral process, or merely a waste of time and money caused by (a) the influence of court practice and procedure in common law jurisdictions and (b) lazy parties/tribunals? How valuable is oral testimony? Shouldn't more arbitrations be conducted as 'documents only' arbitrations?

54. Witness examination Occasionally, counsel will employ over aggressive techniques in cross-examination. How is this best managed? Does the place of the arbitration/nationality of counsel have any bearing? What steps should be taken when counsel ignores a tribunal’s request for a calmer approach. When is it right for a tribunal to express concern over what appears to be CX of uncertain utility?

55.

(i)

(ii)

(iii)

(iv)

(v)

Experts The precise role of experts (including who they owe a duty to) deserves attention given excesses seen in practice. Views? Relatively little attention has been paid to expert evidence until recently and as things currently stand, almost anything goes. Is it time to examine the nature, quality and utility of expert evidence and become more demanding, thereby saving time, cost and aggravation? Is there a meaningful distinction to be drawn between party-appointed experts and witnesses of fact in considering connections with an arbitrator that may give rise to a conflict? Does the purported ‘independence’ of the party-appointed expert make any difference? Is it appropriate for a party in an international arbitration proceeding to submit an independent "expert report" when the report focuses only on treaty interpretation or other issues of international law? The IBA Rules on the Taking of Evidence provide that party-appointed experts may be asked to meet and confer. They shall attempt to reach agreement on those issues as to which they had differences of opinion within the scope of their Expert Reports, and they shall record in writing any such issues on which they reach agreement, any remaining areas of disagreement and the reasons therefore.

21

(vi)

(vii)

(viii)

What is the experience of the audience with this mechanism? What practical experiences can the members of the audience share which make this work efficiently? In general terms, what is good practice with respect to the arbitrators’ involvement with the expert process in case of party-appointed experts? Often, the first thing experts criticise is how their counterpart has gone about his or her task. Is there value in ordering expert witnesses to meet and seek to agree matters such as methodology (for example for DCF calculations or delay analyses) before they start work on analyses and reports, not simply once they have produced their report? To what extent should experts on matters of law be permitted - why can submissions from the parties (including experts in the relevant law) not be sufficient? How to ensure, from a procedural point of view, that arbitrators can deal correctly and efficiently in their award with considerably divergent technical, financial, or valuation issues put forward by the parties’ expert witnesses?

56.

Memorials The intention behind two stages of memorials should be that primary arguments are made in the statement of claim and defence, leaving the reply and rejoinder to elaborate on a narrowing range of points. Can, and should, a tribunal seek to enforce that process, and prevent a respondent from leaving the bulk of the defence and evidence to the rejoinder?

57. Post-hearing briefs Are parties and tribunals tending away from the submission of post-hearing "brief" or "memorials?" Are they trending the other way? Or is there no trend? Apart from the expenses entailed for the parties in the two situations, what are the pros and cons of such post-hearing submissions?

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SESSION E– PRACTICE AND PROCEDURE

58. Legitimacy of the arbitral process

Is the current debate on the legitimacy of the arbitral process (e.g. at the recent ICCA conference in Miami) really all about investor/state arbitration rather than international commercial arbitration? And if not, what can be done in the commercial context to make the prospect of arbitration more appealing?

59. The future of arbitration What are the chances that in the next decade, the Hague Choice of Court Convention will give arbitration a good run for its money? Are the perceived benefits of arbitration sufficient to maintain its current position?

60. Arbitration - v - litigation Are international arbitrations less likely to settle than litigation? If so why? What can be done to increase the possibility of commercial settlements? How should the LCIA react to the formal attempts that have been made to increase the possibility of commercial settlements e.g. The CEDR Commission on Settlement in International Arbitration?

61. The procedural “melting pot myth” For years, procedural rules and guidelines have been aimed at “melting” various procedural rules and cultures in an effort to ensure a level playing field in international arbitration (e.g., the very successful IBA Rules on the Taking of Evidence in International Arbitration). While such an approach has undoubtedly contributed to the success and development of arbitration as the preferred means of dispute resolution in international business relations, is it still the case now? Is it not time to rethink the old (and ultimately expensive?) cliché of the procedural melting pot and the sort of standard procedure it has fathered and start being creative in setting the basis of the leaner and more efficient arbitration process users are calling for? If so, how can we do this? Why not turn to really tailor-made procedural schedules, abandon the standard approach favoured by many counsel firms and arbitrators as well (the famous PO No. 1, the intense use of Redfern schedules prior to the development of the parties’ main case), delay document production until both sides have argued their case fully on the basis of available documentary evidence and only open document production proceedings, witness statements and expert-witness reports until after this has been done?

62.

(i)

Procedural Order no.1 When experienced counsel are retained by the parties, it is not uncommon for an arbitrator to suggest (to his/her fellow arbitrators) that it really is not necessary to set out a detailed first procedural order. After all, the parties know what they are doing. Is it sensible for a chairperson to take-up this suggestion?

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(ii)

Too many tribunals issue a directions order before discussing with the parties. Shouldn’t there at least be a first telephone or in person hearing? Agree or disagree?

63.

(i)

(ii)

Pushing the pace On a far too frequent basis matters that are ready to be heard say within the next 6 months then cannot be fixed until much further ahead either because of Tribunal difficulties or Counsel difficulties. Just how robust should one be to ensure that proceedings are not allowed to drag on? To what extent should the Tribunal step in and fix a hearing even if it does not suit Counsel. If it is the Tribunal, or a member of it, should the parties be offered the relevant Arbitrator’s resignation? This may cause considerable upset if the Arbitrator concerned is a party appointed Arbitrator and one side risks losing their appointee. Should the LCIA Rules be amended to include a directions hearing after the Tribunal is constituted ‐ would it be more efficient and effective if the Rules expressly recognised the options to serve witness evidence and/or expert evidence with pleadings and the potential need for disclosure before pleadings are finalised? How best could this be done ‐ an option for the Tribunal to modify the current pleadings timetable or a formal separate directions hearing stage pre pleadings?

64. Fast-track arbitration Should the LCIA consider a set of rules for expedited/fast track arbitration? For example, the WIPO expedited rules provide for strict time limits, one arbitrator, and a maximum arbitrator fee of 50,000 Euros. While the LCIA rules can obviously be easily adapted wouldn’t it be good to formalise this so we do not lose cases to the institutions that have such rules in place?

65.

(i)

(ii)

Case management What innovative steps, if any, have attendees taken that have been effective in making a proceeding more efficient and which could be used in other cases? Since the publication of the 2012 ICC Commission Report on: “Techniques for Controlling Time and Costs in Arbitration” is there any evidence to demonstrate that these complaints are decreasing, if at all?

66. Party autonomy The risks of unbridled party autonomy are obvious. What are the best techniques to manage the risk against inappropriate procedures or timetables? Are tribunals managing these matters properly?

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67.

(i)

(ii)

Confidentiality Confidentiality of arbitrator deliberations and arbitration details – is there a spousal exception? Arbitrator deliberations are confidential and details of many arbitrations are confidential. Yet many arbitrators discuss cases with their spouses, friends and colleagues. Usually, but not always, they disguise the facts that permit identification of the parties and counsel. What are the real world parameters for an arbitrator to discuss an ongoing, or finished, arbitration with others?

It has become almost a reflex for many parties and arbitrators to ask or suggest that a confidentiality order be entered at the outset of an arbitration. Is that really necessary? How often is a matter really so confidential that the nuisance and expense of complying with a strict confidentiality order is justified?

68. Transparency UNCITRAL has adopted rules of transparency for investor states disputes and now the commission will be making a decision on a convention for countries to adopt the rules in their existing BITs. What are delegates’ views regarding the compatibility of the UNCITRAL rules on transparency with the LCIA rules, in particular the publication of awards which could be considered an inherent duty of the institutions?

69. Confidentiality in commercial arbitration and transparency in investment arbitration Is that the solution?

70. Third party funding Have delegates found the advent of third party funding to be a positive factor or is it not affecting our clients and our cases as much as was anticipated?

71. Financial disputes Given the introduction almost a year ago of model arbitration clauses into the ISDA Master Agreements, including an LCIA option, has there been an increase in use of arbitration clauses in derivative contracts, or have those who wanted to use them been using them already?

72. Institutions’ neutrality Are arbitral institutions obliged to remain neutral with regard to the dispute of the parties? Are one sided communications between the institution and a party permissible, which are related to any issue of the dispute including an issue on the interpretation of the arbitration rules?

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73. L’affaire Tapie The real story underlying the Bernard Tapie case in France.

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SESSIONS F – ORDERS, AWARDS AND ENFORCEMENT

74.

(i)

(ii)

(iii)

Appellate rules The AAA has recently introduced an optional mechanism whereby a panel of arbitrators is empowered to “review” an arbitral award and to produce a binding decision upholding or modifying the award. Is this a good thing? Should other institutions move in the same direction?

Since 01 November 2013, the ICDR/AAA in the US has introduced what is described as “Optional Appellate Arbitration Rules” - in essence an appeal mechanism into its arbitral process. First of all, is this a desirable development or trend like the Emergency Arbitrator? Does the LCIA intend to introduce something similar?

Outside of the investment treaty world, has anyone had experience with arbitral institution appellate review rules? The ICDR’s new appellate rules went into effect November 1, 2013. An arbitral appeal is heard by a panel of three appellate arbitrators unless the parties agree to utilize a single appellate arbitrator. Under Rule A-10, a party may appeal on the grounds that the award is based on (1) an error of law that is material and prejudicial, or (2) determinations of fact that are clearly erroneous. Has anyone elected to include these rules in an arbitration clause? If used, should parties who might seek a 3-peson tribunal opt instead for a sole arbitrator with arbitral appellate review? What are other reasons to use or not to use the appellate rules?

75. Default awards

Can a tribunal sitting in England lawfully make a default award, without having the claimant prove its claim?

76. Issuing an “unless award” Is a tribunal ever actually allowed to issue an “unless award”?

77. Equitable relief Requests for equitable relief have become more frequent. When should such relief not be granted?

78. Preliminary measures

I wonder if others have been receiving, as I have been, an increasing number of applications from respondents, phrased as being for "preliminary measures" or as "requests for the production of documents (or other evidence)," requesting (A) that the claimant disclose whether it is receiving third-party funding in support of the arbitration; (B), is so, whether the funding agreement requires the funder to pay any costs assessed against the claimant; and (B), if the answer to A is "Yes" and the answer to B is "No," that the claimant (i) either to produce evidence of its financial ability to answer for any costs assessed against it or (ii) provide a guarantee for the payment of any such costs? How have these been handled?

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79.

(i)

(ii)

Interim measures Are applications for interim measures being made more frequently in arbitrations than was the case five or ten years ago? Article 26 of the UNCITRAL Arbitration Rules establishes standards that must be met before interim measures can be granted. Specifically, Article 26 provides: “3. The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy the arbitral tribunal that:

(a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and

(b) There is a reasonable possibility that the requesting party will succeed on

the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.”

What experience can be reported on the application of Article 26 since the UNCITRAL Rules were revised in 2010?

Article 25 of LCIA Rules does not establish any standard by which “Interim and Conservatory Measures” might be

ordered. Should it?

80. Interim awards Where a party (normally the respondent) fails to pay its share of the advance on costs fixed by an arbitral institution, should an interim award be made in favour of the opposing party that pays that amount?

81. Partial awards Given the almost universal desire to speed up the arbitral process, should we be more willing to have a Tribunal issue its conclusion on key issues without providing final reasoning so that the parties can apply the Tribunal’s decision to resolving the other issues in their case while the Tribunal continues to work on the final award?

82.

(i)

(ii)

Awards of costs Do costs submissions really make a difference to the Arbitral Tribunal’s decision on costs allocation? Should success / contingency fees be taken into account in tribunal’s decision on costs? Is it desirable to have costs submissions filed after the award on the merits has been rendered?

28

(iii)

(iv)

Do institutional rules (other than the LCIA) form a contracting out of the English Arbitration Act Section 61(2) [costs follow the event]? If so, how do arbitrators approach this? How would the new Rule 28.4 change arbitrators’ thinking towards allocation of costs? (By analogy has ICC Rule 37.5 made a difference? Or the amendments to the UNCITRAL Rule on costs?)

83. Powers of arbitrators to rule on their own fees The Swiss Federal Tribunal held, in an obiter dictum in a judgment dated November 10, 2010 (ATF 136 III 597) dismissing an application to set aside a decision titled “interim award on costs” pursuant to which an arbitral tribunal constituted under the Swiss Rules (that are modelled on the UNCITRAL Rules) that such a decision cannot be considered as an award and could not, therefore, be challenged pursuant to Chapter 12 of the PIL Act (governing international arbitration), which is silent on the issue of costs. Whatever the title chosen by the arbitrators for their decision fixing the mount of their fees and ordering their payment, such a decision can only be a procedural order and not an enforceable award because it does not deal with issues relating to the contract containing the arbitration clause giving rise to the arbitrators’ jurisdiction but with issues relating to the contract of arbitration between the parties and the arbitrators (receptum arbitri), which is a separate contract. In a further obiter dictum, the Federal Tribunal further stated that unless otherwise agreed by the parties in their agreement to arbitrate or by reference to applicable arbitration rules, arbitrators sitting in Switzerland in cases governed by the PIL Act are not authorized to issue an enforceable binding decision as to their own costs. When a tribunal fixes the costs of arbitration it in fact renders accounts to the parties and issues a decision as to how the arbitration costs should be divided between them. Such a decision cannot be enforced against the parties for the arbitrators to be paid, as this would be tantamount to giving the arbitral tribunal the authority to decide on its own case, which would be contrary to public policy. What is the situation in other jurisdictions in similar cases? In non-administered cases, are arbitrators empowered to issue binding and enforceable decisions fixing their own fees in the absence of an agreement by the parties? How are they enforceable?

84. Capping costs is it time for tribunals seated in England & Wales to start using the cost-capping powers provided by s.65(1) of the Arbitration Act 1996, both to control costs and to encourage efficient case management?

85. Damages To what extent, if any, may a Tribunal, when finding for a party claiming damages, deviate from the exact amount of damages, asserted by an expert, while relying generally on the expert's report in support of its finding?

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86. Post award interest Are parties entitled, in your jurisdiction, to claim for post award interest at the enforcement stage despite the fact that the award is silent on the question? If so, on which ground(s)? Should arbitrators raise the question with the parties if they have been silent on this issue?

87. Sharing the balance of funds Shouldn’t the LCIA Rule which allows a respondent to be refunded a share of the balance of funds be changed so that it is subject to any award of the tribunal or order of the LCIA Court?

88. Allegations of corruption and the assessment of liability and quantum Assume you are sitting as arbitrators on an arbitration involving a corruption or competition law infringement allegation. The alleged wrongdoer has elaborated and adopted a compliance programme covering the alleged infringement, and if the allegation were proven, it would have failed to respect its own rules and processes prohibiting the conduct in question. The other side in the arbitration has not raised this in its pleadings. Would you sua sponte take this aspect into account when assessing potential liability and quantum of damages if the allegation were proven right? Or before when examining the case?

89.

(i)

(ii)

(iii)

(iv)

Timely issuing of the award What can be done to ensure awards are produced more quickly? Why don't parties stipulate in their arbitration clauses that the Award is to be issued within 3 (or 6) months of the last submission (oral or in writing) to the Tribunal unless both parties later jointly agree to give to the Tribunal and the Institute (if there be one) further time for the issue of the Award? Should arbitrators commit at the beginning of the case to issue an award within a certain period of time following the close of the case? Should that conversation regularly occur between the appointing authority and the arbitrator when compensation is discussed at the beginning of the case? Are the measures taken by arbitral institutions so far sufficient to assure a swift delivery of the award? First of all any systems that provide for a maximum delay between the closing of the proceedings and the issuance of the award are inefficient. The effect is only that arbitrators do not close the proceedings until they are certain to meet the deadline. A deadline, therefore, must start with the last procedural step, e.g. the exchange of post-hearing briefs. In addition, the question is what the sanction is for a violation of this obligation to issue the award within a certain period of time.

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Is it really acceptable that arbitrators take the view that it is not possible to foresee the time it will take to render the award? How about the business world, such as complex construction projects? In these cases the builder is usually required to agree a fixed completion deadline which is usually guaranteed by penalties. Which clear financial motivations or sanctions would be appropriate to motivate arbitrators to deliver in time, if any?

90. Presenting the awards Should all international arbitral institutions including the LCIA adopt the ICSID style of publishing the names of all legal representatives on the cover sheet of the Award?

91. Sign, issue dissenting opinion or flee? The rules of institution X provide for 2‐tier proceedings where the 2nd tier is an appeal to a 5‐person Tribunal; the rules provide further that the Award shall be issued signed only by the Chairman of the Tribunal. Assume that the Chairman is outvoted in a 4‐1 decision: what should he/she do next? Sign an Award with which he/she disagrees (assume strongly)? Sign but issue a Dissenting Opinion? Flee?

92.

(i)

(ii)

Enforcement In Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v Pemex-Exploración y Producción, 2013 WL 4517225 (S.D.N.Y. Aug. 27, 2013) appeal pending, the district court faced this situation: An award favoring claimant was nullified by a Mexican appellate court on September 21, 2011. Claimant nonetheless sought enforcement of the award in the United States. The award was valued at $400 million including interest. The district court decided to enforce the award because the Mexican court “decision violated basic notions of justice in that it applied a law that was not in existence at the time the parties' contract was formed and left (Claimant) without an apparent ability to litigate its claims.” Dueling Mexican legal experts provided testimony on Mexican law; the district court accepted claimants’ experts’ testimony. The controlling treaty language came from Article 5(e) of the Panama Convention which provides that the recognition of an award “may be refused” by a state. The New York Convention contains similar language in Article V. The opinion has generated quite a bit of discussion. Should it be affirmed? If not, why not? Under III of the New York Convention directs signatory states to accord recognition and enforcement of awards ““in accordance with the rules of procedure of the territory where the award is relied upon.” In Figueirdeo Ferraz e Engenharia de Projeto Ltda. v. The Republic of Peru et al., 2011 US App. Lexis 24748 (2nd Cir. Dec. 14, 2011), the Second Circuit vacated a $21 million arbitration award in favor of a claimant against the government of Peru. A Lima Court of Appeals denied the appeal challenging the award. A statute in Peru limited the amount of money that any agency of the Peruvian government could pay annually to satisfy a judgment to 3 percent of the agency’s annual budget. Based on the doctrine of forum non conveniens argued to be part of the procedural law of the United States, the government of Peru appealed and prevailed.

31

(iii)

(iv)

We agree with the Appellants that the cap statute is a highly significant public factor warranting FNC dismissal. Although it obviously has special significance for one of the parties in this litigation, Peru, and to that extent differs from public factors such as court congestion, (citation omitted), which are independent of particular litigants, there is nonetheless a public interest in assuring respect for a sovereign nation's attempt to limit the rate at which its funds are spent to satisfy judgments.

Who erred here? The Court? Or Claimant for not anticipating this problem when it decided to do business with an agency of the Peruvian government? Do other countries recognize FNC generally or as part of their procedural law? Saudi Arabia has a new (pro) Arbitration Law, and China's Supreme Court has promised to take a keen interest in the effective recognition and enforcement of awards, as it now must review and affirm any decision of a lower court to refuse recognition to an international arbitration award. Is this a new dawn or just more window dressing? Enforcement of annulled awards: given recent developments, some feel putting the magnifying glass to the standard is justified. Namely, assuming the possibility to enforce an annulled award exists, how should the court of enforcement go about doing so? Should it delve into the annulment courts analysis passing judgment on the same? Or should it simply assess whether the award is fit for enforcement under its applicable law? How do delegates feel about the French view?

93. Issuing an enforceable award Does the requirement on the arbitral tribunal, under some rules of arbitration, to make every effort to issue an enforceable award now place arbitrators in a difficult position, potentially having to research procedural requirements in possible places of enforcement? Or do arbitrators have nothing to be concerned with by, for example, the March 2014 Court of Appeal Judgment in Qatar confirming the setting aside of an ICC Arbitration Award, seated in Paris, by reason of the failure on the part of the Italian arbitrator to issue the award in the name of the Emir of the State of Qatar?