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Evolution and Adaptation: The Future of International Arbitration

ISBN13: 9789403520414
Published: January 2020
Publisher: Kluwer Law International
Country of Publication: UK
Format: Hardback
Price: £212.00

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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.

Arbitration and Alternative Dispute Resolution
Jean Kalicki and Mohammed Abdel Raouf
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

Series: ICCA Congress Series

International Arbitration and the Rule of Law: Contribution and Conformity ISBN 9789041194459
Published September 2017
Kluwer Law International
Legitimacy: Myths, Challenges, Realities ISBN 9789041159441
Published April 2015
Kluwer Law International
International Arbitration: The Coming of a New Age ISBN 9789041150110
Published November 2013
Kluwer Law International
Arbitration: The Next Fifty Years ISBN 9789041138088
Published May 2012
Kluwer Law International
Arbitration Advocacy in Changing Times ISBN 9789041133663
Published October 2011
Kluwer Law International
50 Years of the New York Convention ISBN 9789041132123
Published November 2009
Kluwer Law International
International Arbitration 2006: Back to Basics? ISBN 9789041126917
Published February 2008
Kluwer Law International
New Horizons for International Commercial Arbitration and Beyond ISBN 9789041123480
Published August 2005
Kluwer Law International
International Commercial Arbitration: Important Contemporary Questions ISBN 9789041122193
Published November 2003
Kluwer Law International
International Arbitration and National Courts: The Never Ending Story ISBN 9789041116475
Published September 2001
Kluwer Law International
International Arbitration in a Changing World ISBN 9789065448002
Published July 1994
Kluwer Law International
Preventing Delay and Disruption of Arbitration: International Congress Proceedings ISBN 9789065445810
Published December 1991
Kluwer Law International
UNCITRAL's Project for a Model Law on International Commercial Arbitration
Edited by: Pieter Sanders
ISBN 9789065441836
Published June 1987
Kluwer Law International
Comparative Arbitration Practice and Public Policy in Arbitration
Edited by: Pieter Sanders
ISBN 9789065442963
Published June 1987
Kluwer Law International