ArbitralWomen-Kluwer Arbitration Blog

Last update: 06/07/2016

Redressing the Balance: The Path Ahead for Gender and Generational Diversity on Arbitral Tribunals

At least half of the world’s population is composed of women, it would therefore be a disconnect from reality if we deny gender diversity in arbitration, in fact in any field. Women have throughout history contributed to building the world’s society, but in spite of that, the world remains male-oriented and male-dominated which is illogical. Women are as important as men in contributing to all the social, political, educational and professional components of any society, and their absence is even detrimental because they have their views, their experience, their talents and we would be missing this wealth of input. Gender diversity brings to the room essential components because men and women often have different approaches, views, and analyses of situations. Neither is better than the other, they work differently but they are complementary and both are indispensable.


One Step Further after the Launch of the ERA Pledge: A Search Service for Female Arbitrators Appointments

The Equal Representation in Arbitration (ERA) Pledge (“Pledge”) launched on 18 May 2016 in London had the effect of a snowball that grew bigger and bigger over the last few months.  Three months after the official launch, over a thousand signatories have joined the players committing to improve numbers.  In her recent post, Mirèze Philippe reports about some recent developments: the constitution of a Pledge Steering Committee with the objective of spreading the word and the launch of a pilot project to offer assistance through an ‘Arbitrator Search’ page on the Pledge website, intended to assist any person seeking assistance for finding female arbitrators by providing names of potential profiles without making official recommendations.  The author informs us that the results of the pilot project will be examined after a while to assess whether such service is helpful and whether it should be maintained and potentially improved.  This facility is now available via the ‘Arbitrator Search’ tab on the Era Pledge website at www.arbitrationpledge.com.


Equal Representation in Arbitration (ERA) Pledge: A Turning Point in the Arbitration History for Gender Equality

The launch of the Equal Representation in Arbitration (ERA) Pledge on 18 May 2016 in London marks a historic moment in international arbitration. The Pledge is a call to the international dispute resolution community to commit to increase the number of female arbitrators on an equal opportunity basis. In her new blog, Mirèze Philippe recounts the various developments which led to the adoption of the Pledge and explains its significance and impact for the arbitral community. Having been endorsed already by over five hundred individuals and around 70 organisations, the Pledge is open for signature by all ArbitralWomen members. This blog encourages all of you to do so and contribute to this crucial moment in the history of international arbitration.


Fit for purpose? The EU’s Investment Court System

On 12 November 2015, in the context of its negotiations for the Transatlantic Trade and Investment Partnership (TTIP) and in a bid to address growing criticism of investment treaty arbitration, the European Commission made a formal proposal for a reformed approach to investment protection and an apparently more transparent system for the resolution of investment disputes. To that end, the Commission suggested, amongst other things, the establishment of a permanent court to hear investment disputes (the “Investment Court”). The Investment Court aims to safeguard states’ right to regulate and create a court-like system with an appeal mechanism based on clearly defined rules, with qualified judges and transparent proceedings.


Istanbul Arbitration Centre

A new arbitration institution has opened its doors and has already started to register its cases in Istanbul. The Istanbul Arbitration Centre (ISTAC) has become operational in the third quarter of 2015, offering to its users a set of arbitration and mediation rules, along with emergency arbitrator and Fast Track Arbitration procedures. In this article, the author presents the main features of the arbitration rules and points to the linguistic, financial, logistical and geographical advantages of this new centre.


The EU Proposal Regarding Investment Protection: The End of Investment Arbitration as We Know It?

On 12 November 2015, the European Commission rendered public and put on the negotiation table with the United States a proposal regarding the investment chapter of the draft Transatlantic Trade and Investment Partnership between the EU and the US (TTIP). The text contains tentative remedies for major current criticisms against investment arbitration: the restriction of States’ general regulatory power, the expansion of frivolous claims, the lack of transparency, the existence of conflicting awards and the appointment of arbitrators who are in conflict of interest situations. The remedy for the two latter criticisms is the establishment of a permanent court to hear investment disputes. This post points to the main innovative features of the EU Proposal's investment chapter concerning investment protection and dispute resolution.


Growing Appreciation for Arbitration for Trade and Investment disputes in Latin America. (Moving towards English Common Law)

The legal landscape in Latin America is rapidly changing. Not only has Latin America more bilateral Trade Agreements than any other region in the world, but it is also a region experiencing a growth in importance for international commerce in all areas. In this context, Monica Feria-Tinta questions whether arbitration can become the legal lingua franca, the legal trade mechanism, to enable the region to have a common meeting ground with the multiple actors that intend to engage in business there. The author furthers inquires whether English Common Law can play any role in Arbitration in Latin America. After looking at certain developments in the region, the author concludes that, depending on the extent to which Latin America may adapt to the rapid changes that are currently taking place, we will be witnessing a diversification of routes in dispute resolution regimes. English common law could undoubtedly play an important role and London as a seat of arbitration may become popular, in light of new actors and the strengths of the system and what it can offer.


Mooties Making A Difference: Reaching Out To Build In Cambodia

A few weeks ago, a small team of educators gathered in Phnom Penh for the second Vis East Moot Foundation Capacity Building Programme (VEMF-CBP) for Cambodian law students. What made this programme different from other occasional, one-off forays into Cambodia by dozens of NGO’s and law firms is that this year’s local organisers were all alumni of the 2014 CBP, with students organizing everything from classrooms to catering, registration, accounting, attendance, printing – even the end-of-course party. A couple went further, delivering a 3-hour CISG research workshop, impressing both peers and professors. The project proved a success and convinced Louise Barrington to share her experience on role of Vis Moots as a catalyst for change in a country where arbitration is is in its infancy – Cambodia.


Hypochondria About the Place of Arbitration in Online Proceedings

Hypochondria is defined as an excessive preoccupation with one’s health, usually focusing on some particular symptom. Could excessive preoccupation about the place of arbitration in online dispute resolution be assimilated to hypochondria? Are discussions that we hear from time to time and recently during the electronic conference on Technology in International Arbitration about defining the place of arbitration in online procedures justified? According to the author, the real question is not about the place, i.e. the venue, but about the legal framework meant to determine the law governing the procedure and the jurisdictional place in order for the award to be enforced in other states. With that setting in mind, whether the arbitration procedure is conducted online or offline makes no difference: the choice of the dispute resolution mechanism, the law applicable to the merits, the place of arbitration and thus the procedural law will be interpreted the same way. The only difference resides in the fact that the procedure is conducted in an online environment. From this perspective, the place of arbitration is a non-issue. The material place is independent from the law to govern the proceedings, irrespective of where the meeting or hearing may be held and whether it may be held at all.


What’s Next? – Practical Ponderings on Arbitrators and Overturned Jurisdictional Awards

There are a number of questions that influence how arbitration treats cases in which an award is challenged successfully. A court overturns an award declining jurisdiction, but what’s next? The authors argues that the easy and most practical answer would be for the arbitrator to resume the case and render an award on the merits. This conclusion is however not easy to justify. In the author's view, which we invite you to discover on Kluwer Arbitration Blog, a general answer to “remand” the case to the original arbitrators is arguably not sufficient. Sometimes it may be more appropriate to appoint another tribunal, or even let the courts decide.


The PRC’s New Provisions on Recognition and Enforcement of Taiwan’s Civil Judgments and Arbitral Awards

To enforce a Taiwan’s award or civil judgment in the mainland China, a party has to refer to PRC’s regulations, which were released by the Supreme People’s Court (“SPC”) and have recently been amended. The new SPC’s “Provisions on Recognition and Enforcement of Taiwan Courts’ Civil Judgments” and “Provisions on Recognition and Enforcement of Arbitral Awards made in the Taiwan Region” (together hereinafter referred to as the “New Provisions”) became effective on July 1, 2015, when the obsolete “Provisions on the People’s Court’s Recognition of Taiwan Courts’ Civil Judgments” (“the Old Provisions”) and their relevant regulations issued to explain or facilitate their application were repealed. The New Provisions vastly improve the relevant laws regarding recognition and enforcement of Taiwan courts’ civil judgments and arbitral awards rendered in Taiwan. This note offers an introductory comparison of the key differences between the New Provisions and the Old Provisions.


TTIP: The French Proposal For A Permanent European Court for Investment Arbitration

On 2 June 2015, the French Minister of Foreign Trade, Matthias Fekl, submitted to the European Commission a proposal regarding the Investor-State dispute settlement (ISDS) mechanism included in the project for a Transatlantic Trade Investment Partnership between the US and the EU (TTIP). The French Proposal is one further addition to the hot debate on the issue. The French proposal purports to address the main causes of public mistrust towards investor-State arbitration: the alleged restriction of States’ general regulatory power, conflicting awards, lack of transparency, arbitrators’ conflicts of interest, as well as a most novel but most controversial proposal regarding the constitution of a permanent European court to handle investment arbitrations against the EU or a EU member State. This article examines the technicalities and effects of setting up such novel institution, and concludes that the establishment of an EU Permanent Court appears to raise as many issues as it purports to resolve.


The Evolution of Arbitration in the Arab World

Arbitration in the Arab World is a hot topic these days. Over the past few decades the Arab World has become a region at the forefront of international arbitration expansion. With increasing numbers of commercial actors coming out of the Arab World and with regional arbitration centers being established in many Arab states, large numbers of international arbitration cases are now linked to the Arab World. While a few decades ago the application of modern international arbitration has not proceeding in an entirely positive manner, in time its benefits began to touch Arab States and commercial entities, reversing the previous trend. After exploring a few significant developments of arbitration in the region, the author concludes that the greater presence of Arab actors as respondent states, as well as claimants and investors, and hopefully in the future increasingly as arbitrators and counsel, will result in the continuing confidence of the Arab World in the system of international arbitration as a mechanism for dispute resolution that is closely connected to its historical roots in the region.


Roundtable Report : “Les femmes dans l’arbitrage, Est-ce si différent?”

The article explores some of the issues that were the focus of a recent roundtable on women in arbitration organized on 5 May 2015 by the Université de Versailles and its Master Arbitrage et Commerce International in cooperation with the ICC and ArbitralWomen. Taking place at the ICC, more than 75 participants, both women and men, attended the event, which was moderated by Sandrine Clavel and featured leading Paris-based women practitioners and academics including Claire Bouglé-Le Roux, Caroline Duclercq, Laurence Kiffer, Carole Malinvaud, and Mirèze Philippe. The roundtable commenced with engaging observations on the role of women arbitrators historically and quickly evolved to encompass contemporary issues from the role of women in arbitral institutions and law firms through recent gender equality laws in France and other countries. The roundtable concluded that increasing the visibility of women in arbitration requires a pro-active approach from the entire arbitration community through promotion of women arbitrators, mentoring and, not in the least, self-marketing.


The Role of Young Arbitrators in the Rule of Law

Conference report on Wendy Miles’ keynote speech at the YAF/YAPP conference in Vienna (28 March 2015)

This year, Wendy Miles delivered the keynote speech at the YAF/YAPP Annual Conference on the second day of the Vis Moot. Attuned to the audience, the speech began with a note of encouragement and ended on a counterpoint of responsibility: though the future belongs to the young arbitrators, they are entrusted with nothing less than the future of the rule of law. Following and taking into account recently expressed views from distinguished legal minds of our time, Miles noted that international arbitration serves implementing the rule of law from prominent arbitral seats to emerging markets in Africa, Asia, and Latin America, whose importance in international arbitration is currently increasing. Miles urged young generations to continue nurturing this important role that arbitration plays by preserving accessibility, predictability and equality in the application of law, human rights, time and cost efficiency, and compliance with international obligations by states and state officials. As a final word, Miles reminded participants to serve their clients loyally while never forgetting that we are called to a greater purpose: serving the “Rule of Law”.


Conduct of Legal Representatives under the 2014 LCIA Arbitration Rules: How to Apply the New Provisions

Issues relating to the conduct of legal representatives in international arbitration have attracted significant attention in recent years. The author notes that there is a lively debate as to whether and how counsel conduct can or should be regulated. The new LCIA Arbitration Rules, which entered into force on 1 October 2014 are at the core of this debate since they are the first institutional rules that have included provisions regulating the legal representatives’ conduct. Article 18 of the Rules deals with the parties’ fundamental right to choose legal representatives, as well as with the consequences of any change or addition to the parties’ legal representation after the formation of the arbitral tribunal. In their Annex, the Rules contain ‘General Guidelines for the Parties’ Legal Representatives’ (hereafter the ‘Guidelines’). Without discussing whether the LCIA's decision was an opportune one, the post focuses on how these provisions will apply in practice, in particular with respect to (i) the Guidelines’ scope, (ii) their content, and (iii) the tribunal’s powers in the case of a violation thereof.


The New Dutch Arbitration Act 2015

The New Act entered into force on 1 January 2015 in relation to arbitrations commenced on or after 1 January 2015. The New Act is an amendment to the former Dutch Arbitration Act, which dates back to 1986, many aspects of which remain unchanged in the New Act. Although the Act is not based on the UNCITRAL Model Law (2006), the Dutch legislator, in its preparation for the New Act, did look to the Model Law (2006). Overall, in the New Act, the legislator has granted the parties more autonomy to shape the arbitration as they deem fit. In fact, only a few provisions in the New Act, all relating to due process, are of a mandatory nature. A full unofficial English translation of the text of the New Act is available on the website of the Netherlands Arbitration Institute (http:/www.nai-nl.org/en/).


New arbitration rules for the Victorian Supreme Court – another step in the State’s commitment to international commercial arbitration

Following the 2010 amendment of the International Arbitration Act and parallel legislative reform in many of the States and Territories, Australia now has clear and distinct legislative regimes in most jurisdictions for both international commercial arbitration and domestic arbitration. The State of Victoria established itself as a leader in this field as early as 2010 with the creation of an arbitration list in its Supreme Court. The most recent initiative in Victoria is the introduction of new arbitration rules in the Supreme Court of Victoria, which came into force on 1 December 2014. The author looks into the most important features of the 2014 Rules and concludes that their introduction along with the publication of the Practice Note in the Supreme Court of Victoria are important steps in ensuring that practitioners (and their clients) have confidence in the Victorian courts’ commitment to international commercial arbitration. The 2014 Rules also make it easier for foreign lawyers to understand exactly how the Court can assist parties and provide clear information about what documents are required for each application and how to access the Arbitration List.


Losing Entitlement to Claim and Resort to Dispute Resolution in Construction: Time Bar Provisions and the Turkish Approach

Characterized as a topic strongly connected to the dispute resolution arena, time bar provisions appear at the top of the list of priorities with regards to disputes in the construction field. Among many others, a recent decision rendered by the High Court of Justice, Queen’s Bench Division (Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC)) confirmed such position while demonstrating the importance of the structure of procedural provisions and the result of non-compliance thereof in construction contracts. Specifically, clauses related to notice of claim create contractual obligations with regard to the procedure that must be followed by the contractor to be entitled to exercise a right to claim under the contract. The interpretation of such clauses will differ as to whether or not the nature of these provisions constitutes a condition precedent. Vis-à-vis the major approaches on the nature of time-bar provisions, the Turkish courts’ approach is consistent and established. It follows a strict view on the word-for-word compliance with the time bar provisions without leaving room for any prevention principle to become applicable. Consequently, this approach makes Turkey a jurisdiction where contractors must carefully consider compliance with notice clauses so as not to lose any right to claim or resort to dispute resolution.


International Commercial Arbitration in Romania: Can the New Changes Release the Tension Instilled in the Past

In August 2014, the Court of Arbitration attached to the Romanian Chamber of Commerce and Industry amended its arbitration rules and returned to the long-standing principle of party autonomy in the constitution of tribunals. Prior to that, for a period of roughly two years, the Court promoted an appointment mechanism whereby the President of the Chamber appointed all arbitrators (or the sole arbitrator) from pre-approved lists. This appointment system generated great tensions both within the Court and among the parties, who saw themselves deprived of the ultimate reason for which they chose arbitration over court litigation. The amendment of the arbitration rules and a better organization of the dispute administration structure within the Court seemed to have restored that trust. Despite these positive developments, the author concludes that there are many other areas to improve, notably the training of arbitrators.


The Pemex case: the Ghost of Chromalloy Past?

The author recalls that the international arbitration community sat up and took notice when a recent decision issued by Judge Alvin K. Hellerstein from the Southern District of New York in the Pemex case ordered that an arbitration award that had been set aside by the Mexican courts could be enforced in the United States. The case was particularly noteworthy because there is only one other reported case in the United States— Chromalloy from 1996—which ordered the same result, albeit for different legal reasons. While the court in Pemex did not rely on the specific reasoning in Chromalloy, it did remark that Chromalloy remains alive. The author concludes that this case will unlikely open the floodgates in the United States to enforcement of awards that have been set aside abroad. The facts in this case distinguish it from many of its predecessors. Nevertheless, it would be difficult to fathom how the court could or should have reached a different result under these circumstances. And it also gives a nod to a case that many thought had been dismissed as an outlier, and reminds us that parties remain captive to the courts at the seat of arbitration when it comes to nullification of international arbitration awards.


Investment Protection – Swiss Style

The authors recall that historically Switzerland has been an attractive location for international corporate headquarters. Switzerland was the first State after Germany to enter into bilateral investment treaties (“BITs”) beginning in 1961. To date, after having signed more than 130 BITs, Switzerland is clearly committed to the availability of investor-state dispute settlement mechanisms as a means of protecting international investments and depoliticizing investment disputes. The country also appears to be committed to addressing head-on controversial issues that have arisen in investment treaty cases by taking a modern and flexible approach to the negotiation and drafting of BITs.

A more extensive article by the authors on this topic has been published in Getting the Deal Through -- Investment Treaty Arbitration 2014 (Nov. 2013, contributing eds. S. Jagusch & E. Triantafilou, www.GettingTheDealThrough.com).


Women in Arbitration in Brazil

The authors analyzed the present situation regarding women in arbitration in Brazil. Despite the encouraging developments in arbitration in Brazil, the authors found the current panorama not as promising as desired. Local statistics show that the percentage of female arbitrators listed with the most prominent Brazilian chambers is low. Lack of role models, unequal treatment between men and women, and a conservative attitude in the process of appointment are only some of the factors that perpetuate the imbalance. The authors call for solidarity between older and younger generations of female arbitrators, and invite the new-comers to reach out and use the institutional assistance on access of women to arbitration and to the legal field in general that many law firms and non-governmental organizations provide.


Effective Management of Arbitration; A Guide for In-House Counsel and Other Party Representatives

In this blog, the launch of the Guide for In-House Counsel and Other Party Representatives on Effective Management of Arbitration Guide (‘Guide’) is reported. Time and costs in arbitration is a debate that started several years ago and remains a concern for the business and for the dispute resolution practitioners. Several initiatives were taken to provide tools for controlling time and costs, namely by the ICC (see our blog on Lists, Checklists, Guidelines, Principles, Techniques, Protocols, Best Practices: Are They Useful?). This Guide now provides a checklist for the procedural decisions that need to be made at each principal phase of an arbitration. Useful in both large and small cases, it enables in-house counsel worldwide to participate effectively in the tailor making process throughout the arbitration proceedings. A panel of renowned in-house counsel shared their experience about each of the stages defined in the Topic Sheets of the Guide and welcomed this Guide. The Guide was drafted by a Task Force of the ICC Commission on Arbitration & ADR (“Commission”).


Five Facts About Recognition and Enforcement of Foreign Awards in Central and Eastern Europe

Arbitration has become an accepted dispute resolution mechanism in Central and Eastern Europe (“CEE”) over the last two decades. Given the diversity of the countries in CEE, arbitral practice in the region is not entirely uniform despite the fact that most CEE countries are parties to international instruments meant to harmonize arbitration standards and court-related procedures. Though CEE’s arbitration practice cannot be summarized in a few words, this piece gives a bird’s eye view of the region, with a focus on five key facts or figures concerning recognition and enforcement of foreign awards.


The Future of Class, Mass, and Collective Arbitration

At the Eleventh Annual ITA-ASIL Conference on class and mass claims in arbitration, the panelist Deepak Gupta, suggested that the best way to address large-scale arbitration in the future might be through legislative and regulatory action. The discussion arose in response to statements by keynote speaker Carolyn Lamm that class and mass claims would not only continue to arise in the coming years but might in fact increase as a result of the demands of a globalized economy. A case relevant to the discussion was handed down two weeks after the conferee closed. In her article, Professor Strong shares a few comments about Department of Enforcement v Charles Schwab & Co., Inc.and concludes that the law in this field is both diverse and evolving. In the coming years will doubtless see further challenges relating to class, mass and collective proceedings. However, the author notes, this does not appear to be an area of law that is going to disappear any time soon. Instead, if Ms. Lamm’s prediction holds true, the number of large-scale arbitrations will only increase with time.


Arbitration Clauses in Gas Supply Agreements

One of the core elements of long-term Gas Supply Agreements are price review provisions (also called price reopener clauses), which allow parties to review the price of the gas during the life of the agreement. The importance of such clauses lies in the long-term nature of the agreements (often up to 30 years) and the changing nature of the markets. The price is usually defined in a formula and often, particularly in older agreements, linked to the oil price. The par-ties might also agree on a specific source for the oil price to which the gas price will be linked, e.g. Platt’s Oilgram Report, a daily report that covers market changes, market fundamentals and factors driving prices.


Arbitral Tribunals' decisions on costs sanctioning the parties for counsel behavior: A phenomenon expected to increase?

Guidelines 26 and 27 of the IBA Guidelines on Party Representation in International Arbitration have again raised the debate on the extent that Arbitral Tribunals are entitled to deal with “guerrilla tactics”. 1 The present contribution will in particular discuss Arbitral Tribunals’ power to sanction parties for the behavior of their counsel in the proceedings by a ruling on costs.


Efficiency at all cost – arbitration and consolidation?

The views expressed are those of the author alone and should not be regarded as representative of or binding upon the author’s law firm. Consolidation of multiple disputes into a single arbitration proceeding is considered progress with respect to the efficiency of the arbitration process. Consolidation is a procedural mechanism allowing for two or more claims to be united into one single procedure concerning all related parties and disputes.


Paperless Arbitrations – Where Do We Stand?

Technology in arbitration is of course a vast subject which has been addressed extensively by a number of writers. This article focuses briefly on the issue of reducing paper in arbitrations. It considers: How are practitioners currently dealing with paper reduction at the various stages of an arbitration, especially the hearing ? (Although discovery can consume significant amounts of paper, it merits its own consideration and is not therefore addressed in this article.) Are any facilities, rules and/or guidance available on the subject? Are there any drawbacks to using technology to cut down on paper? What is the way forward?


Lists, Checklists, Guidelines, Principles, Techniques, Protocols, Best Practices: Are They Useful?

The wealth of information available offers helpful and concise guidance and tools to assist practitioners in their daily practice. In an age where practitioners are short of time and are faced with a plethora of documentation to read, putting in place helpful guidance and tools may be of valuable assistance in ensuring that the basic issues for each stage of an arbitration are remembered. Lists, checklists, guidelines, principles, techniques, protocols, and best practices elaborated by organizations and working groups like UNCITRAL, IBA, ABA, ICC, or by law firms, facilitate the work of the parties in preparing and arguing their case, and help the arbitrators organize and conduct the proceedings.