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Evolution and Adaptation: The Future of International Arbitration by KALICKI

Evolution and Adaptation: The Future of International Arbitration

Edited by Jean Kalicki, Mohamed Abdel Raouf
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Overview

What is it about international arbitration that makes it so open to evolution and adaptation? What are the main pressure points today and the unmet needs of stakeholders? What are the opportunities for expansion to new sectors and new audiences? What are the drivers for change, the obstacles and the risks? And equally important, what are the core principles that should never be lost? These were the topics of the Twenty-Fourth ICCA Congress, held in Sydney, Australia, in April 2018, the proceedings of which are collected in this volume.

The volume highlights arbitration as a ‘living organism’ that has adapted in the past to various challenges, and that today – under attack from various quarters – might need to demonstrate its adaptability again. Accordingly, the contributions address the evolving needs of users, the impact of the rapidly changing face of technology, the expectations of the public, and the convergence and divergence of different aspects of legal traditions and cultures. Topical issues of interest for practitioners, academics, and students of arbitration include the following:

  • legitimacy and authority of arbitrators, institutions and professional organizations to act as lawmakers;
  • investment treaty reform, with particular reference to the definition of ‘investment,’ the evolution of substantive treaty standards, and sustainable development obligations;
  • commercial arbitration reform, including issues of public and private interest, the development of common law, and cost, delay and transparency concerns;
  • revisiting party autonomy in choosing decision-makers, including through institutional appointments or investment courts;
  • equality of arms, the economics of access, and the role of costs and third-party funding;
  • public-private disputes and special issues that arise when State entities arbitrate;
  • public participation and transparency, and their effect on both ISDS and commercial arbitration;
  • revisiting conventional wisdom in organizing arbitral proceedings;
  • lessons to be learned from other dispute resolution frameworks;
  • technology as friend and enemy, including new tools, new threats, and cybersecurity;
  • arbitration of disputes in conflict and post-conflict zones;
  • inter-generational blame and praise in investment arbitration; and
  • the emergence of sovereign wealth funds as arbitration participants.

A special section on ‘New Frontiers in Arbitration’ offers enlightening perspectives on new types of claims and new types of stakeholders likely to affect the future of international arbitration, including the potential for climate change disputes and enlarged participation.

Last Updated 12/24/2019
Update Frequency Annually
Product Line Kluwer Law International
ISBN 9789403520414
SKU 10082149-0002
Table of Contents

PREFACE
Jean Kalicki and Mohammed Abdel Raouf

ICCA CONGRESS 2020

TABLE OF CONTENTS

Opening Keynote Address

The Hon. James L.B. Allsop AO
Commercial and Investor-State Arbitration: The Importance of Recognizing Their Differences

Plenary Session Lawmaking in International Arbitration: What Legitimacy Challenges Lie Ahead?

Moderator: Stephan Schill
Speakers: Sundaresh Menon, Alexis Mourre, Lucy Reed and Thomas Schultz

Thomas Schultz
Legitimacy Pragmatism in International Arbitration: A Framework for Analysis

Lucy Reed
Lawmaking by Arbitrators

Alexis Mourre
Arbitral Institutions and Professional Organizations as Lawmakers

Sundaresh Menon
The Influence of Public Actors on Lawmaking in International Arbitration: Domestic Legislatures, Domestic Courts and International Organizations

Luncheon Panel: Personal Reflections of Leading Arbitrators

Moderator: Carolyn Lamm
Speakers: Julian Lew QC, Loretta Malintoppi, Brigitte Stern and Claus von Wobeser
Rapporteurs: Mallory Silberman and Laura Sinisterra

Personal Reflections from Leading Arbitrators: Transcript of Luncheon Panelists’ Remarks

Arbitration Challenged Part I

Reforming Substantive Obligations in Investment Treaties and Conditions of Access to Investment Arbitration

Moderator: Meg Kinnear
Speakers: Christophe Bondy, Max Bonnell, Mélida Hodgson, Won Kidane and Wenhua Shan

Wenhua Shan and Lu Wang
The Definition of “Investment”: Recent Developments and Lingering Issues

Christophe Bondy
Fair and Equitable Treatment – Ten Years On

Mélida Hodgson and Patricia Cruz Trabanino
The Evolution of the Expropriation Obligation in Investment Arbitration and Its Adaptation in Treaties to Reflect State Rights

Max Bonnell
Reforming Substantive Obligations in Investment Treaties: Most Favoured Nation Clauses

Won Kidane
Sustainable Development Obligations and Access to Treaty Remedies in Contemporary Investment Treaties and Models

Reforming Commercial Arbitration in Response to Legitimacy Concerns

Moderator: Dietmar W. Prager
Session Chair: James Spigelman
Speakers: Laura C. Abrahamson, Andrés Jana L., Yoshimi Ohara, and Noradèle Radjai

Andrés Jana L.
Private and Public Interest in International Commercial Arbitration

Noradèle Radjai
Commercial Arbitration and the Development of Common Law

Laura C. Abrahamson
Costs, Delay and Transparency – A Comment on Continued Legitimacy Concerns from the User’s Perspective

Yoshimi Ohara and John Lane
Allocation of Competence Between a National Court and an Arbitral Tribunal: Striking a Balance Between Efficiency and Legitimacy of Arbitration – Asian Perspectives

Arbitration Challenged Part II

Party Autonomy in Choosing Decision-Makers: Advantages and Drawbacks - Should It Be Revisited?

Moderator: Gabrielle Kaufmann-Kohler
Speakers: Alfonso Gómez-Acebo, Natalie Y. Morris-Sharma, Audley Sheppard QC and Ruth Stackpool-Moore

Alfonso Gómez-Acebo
A Special Role of Party-Appointed Arbitrators?

Ruth Stackpool-Moore
Institutional Appointment of Arbitrators

Natalie Y. Morris-Sharma
The T(h)reat of Party Autonomy in ISDS Arbitrator Selection: Any Options for Preservation?

Audley Sheppard QC and Daphna Kapeliuk
The Risk of Groupthink in a Multilateral Investment Court

The Realities of Arbitration Economics: Who Gets to Play, and What Are the Implications?

Moderator: Susan Franck
Speakers: Mohamed S. Abdel Wahab, John Beechey, CBE, Kate Brown de Vejar and Victoria Shannon Sahani

Mohamed S. Abdel Wahab
Costs in International Arbitration: Navigating Through the Devil’s Sea

Victoria Shannon Sahani
A Thought-Experiment Regarding Access to Justice in International Arbitration

Kate Brown de Vejar and Chloe Baldwin
The Economics of Access: Systemic Imbalances in ISDS

John Beechey, CBE
The Pandora’s Box of Third-Party Funding: Some Practical Suggestions for Arbitrators in Light of Recent Developments

Arbitration Involving Public Bodies and Public Interests: Salient Issues

Part I: The Increasing Participation of Public Entities in International Arbitration

Moderator: Stavros Brekoulakis
Speakers: Adriana Braghetta, Paolo Di Rosa, Reza Mohtashami QC and Marie Talašová

Marie Talašová and Jaroslav Kudrna
Arbitration Clauses and Disputes from the Central European Perspective: Blurring the Public-Private Divide

Paolo Di Rosa
Challenges for Counsel in the Representation of States and State-Owned Entities in International Arbitration: A Practitioner’s Perspective

Reza Mohtashami QC
Protecting the Legitimacy of the Arbitral Process: Jurisdictional and Procedural Challenges in Public-Private Disputes

Gilberto Giusti
Public-Private Arbitrations: The Substantive Issues of Arbitrability, Mandatory Rules and Public Policy –The Latin American Experience

Part II: Confidentiality, Transparency and Public Participation: Too Far or Not Far Enough?

Moderator: Byung–Chol (B.C.) Yoon
Speakers: Stanimir A. Alexandrov, Chester Brown, Constantine Partasides QC and Patrick W. Pearsall

Chester Brown
The Contribution of Non-State Actors to the Development of Transparency Regimes in Investment Treaty Arbitration

Patrick W. Pearsall
The ISDS Trinity and Early State Practice in Investor-State Arbitration

Stanimir A. Alexandrov and Patrick Childress
Transparency in International Investor-State Arbitration: Commendable in Theory, Complicated in Practice

Constantine Partasides QC
What Has Been the “Spillover” Effect of the Transparency Debate on Commercial Arbitrations?

Building Better Arbitration Proceedings: Practical Suggestions

Part I: Revisiting Conventional Wisdom in the Organization of Arbitral Proceedings

Moderator: Chiann Bao
Speakers: Funke Adekoya, SAN, Fuyong Chen, Nayla Comair-Obeid, Klaus Reichert SC

Klaus Reichert SC
Prayers for Relief – The Focus for Organization

Nayla Comair-Obeid
What Is Conventional Wisdom in the Organization of Arbitral Proceedings?

Fuyong Chen
Revisiting Conventional Wisdom in the Organization of Arbitral Proceedings: Perspectives from Chinese Users and Institutions

Funke Adekoya, SAN
When Does the Use of an Arbitral Secretary Detract from the “Intuitu Personae” Principle?

Part II: Efficiency and the Lessons to Be Learned from Other Dispute Resolution Frameworks

Moderator: Stephen L. Drymer
Session Chair: Lisa Bingham
Speakers: Henry C. Alvarez, The Honourable P.A. Bergin SC, Flip Petillion and Shen Hongyu

The Honourable P.A. Bergin SC
Building Better Arbitration Proceedings

Flip Petillion
The Future of Arbitration – Identifying Processes That Could Usefully Be Adopted in International Commercial Arbitration

The Moving Face of Technology

Part I: Technology as Facilitation

Moderator: Paul H. Cohen
Speakers: Hugh Carlson, Gabrielle Nater-Bass and Rashda Rana

Technology as Facilitation: Transcript of the Session

Part II: Technology as Disruption

Moderator: Brandon Malone
Speakers: Hagit Muriel Elul, Matthew Kuperholz, Alana Maurushat, Sophie Nappert, Carsten van de Sande and Edna Sussman

Alana Maurushat
Cybersecurity and Cyber Insurance

Edna Sussman
Cyber Intrusion as the Guerrilla Tactic: An Appraisal of Historical Challenges in an Age of Technology and Big Data

Hot Topics and New Voices

Part I: Hot Topics

Moderator: Mark Kantor
Speakers: Joongi Kim, Judith Levine and Natalie L. Reid
Rapporteur: Marina Kofman

Marina Kofman
Report of the Rapporteur for the “Hot Topics” Panel

Part II: New Voices

Moderator: Monty Taylor
Speakers: Jawad Ahmad, Lucas Bastin, Solomon Ebere, Samantha Lord Hill

Samantha Lord Hill
Arbitration of Disputes Arising in Conflict and Post-Conflict Zones: Managing the Risks

Jawad Ahmad
Date of Breach, Contributory Fault, and Mitigation of Damages in Investment Arbitration

Solomon Ebere
Sovereign Wealth Funds: The New Kids on the Block

Lucas Bastin
The Excessive Scope for “the Individual” in Decision-Making in Investment Arbitration: Views from Younger Practitioners

Plenary: New Frontiers in International Arbitration

Part I: Potential of Arbitration Involving New Types of Claims

Moderator: Wendy Miles
Speakers: Massimo V. Benedettelli, Annette Magnusson, Ana Stanic and S.I. Strong

S.I. Strong
Arbitration of Internal Trust Disputes: The Next Frontier for International Commercial Arbitration?

Massimo V. Benedettelli
International Arbitration of Corporate Disputes: A Workable Balance Between Two Dimensions of Party Autonomy

Annette Magnusson
New Arbitration Frontiers: Climate Change

Ana Stanic and Petra Butler
What Can Arbitration and Human Rights as Mechanisms of Dispute Resolution Learn from Each Other in Order to Meet the Challenges of Climate Change?

Part II: Potential of Arbitration Involving New Stakeholders

Moderator: Ndanga Kamau
Speakers: Silvia Marchili, Makane Moïse Mbengue and Campbell McLachlan QC

Campbell McLachlan QC
Scope for Enlarged Participation in International Arbitration

Closing Keynote Address

The Hon. T. F. Bathurst
Closing Keynote Address

ICCA-ASIL Task Force on Damages Breakfast

Catherine Amirfar and Gabrielle Nater-Bass
Damages in International Arbitration: ICCA-ASIL Web Application

LIST OF PARTICIPANTS

LIST OF ICCA OFFICERS AND GOVERNING BOARD MEMBERS

Volumes