The fix – how to resolve the tensions at the heart of modern arbitration

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With growing caseloads and global appeal, international arbitration is blossoming – as is criticism of rising costs and delays. As some practitioners develop tactics to ‘fix’ arbitration, will they do more harm than good?

It has taken 25 years since the end of the Cold War for states to fully embrace the notion of settling their disagreements through a third party, but as the recent and resolved case between Singapore and Malaysia shows, inter-state arbitration can be a powerful force in international relations. Similarly, large and sophisticated corporate consumers of dispute resolution services have developed a growing enthusiasm for arbitration when it comes to settling their disputes.

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The US disputes outlook – After the feast

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US disputes lawyers are seeking their next hunting ground as the wave of financial crisis litigation nears its end. Legal Business asks what the next big prize will be.

‘I remember a science class in high school where I watched a snake swallow its prey. Its body became distended where the food was stuck, before moving slowly towards the end of the snake. That’s where we are with the financial crisis litigation. We are really getting towards the end of the snake with all these cases.’ So says Gibson, Dunn & Crutcher’s New York co-head and former global co-chair of litigation, Mark Kirsch, summing up the disputes market in Manhattan today.

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Commercial Dispute Resolution Survey

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As Legal Business publishes its second annual Disputes Yearbook, Cornerstone Research scopes the views of in-house counsel and private practitioners to shine a light on trends within the international disputes market

At Legal Business’s first International Arbitration Summit held in London this September, esteemed practitioner Sir Frank Berman KCMG QC spoke about investor-state arbitration increasingly moving into public consciousness.

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Disputes Yearbook 2015

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Introduction

Opening Statements

Features

Pespectives

Market views

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Jasbir Dhillon QC: Freezing injunctions and receivership in support of arbitration

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Jasbir Dhillon QC

Brick Court Chambers

A frequently encountered problem for any claimant in international arbitration arises where the respondent seeks to make enforcement of any arbitral award against their assets difficult or impossible. In this article, I describe two forms of injunction available from the English court that provide an effective remedy for this widespread problem.

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Mishcon de Reya: The dangers of repeat appointments

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Karel Daele

Partner, Mishcon de Reya

karel.daele@mishcon.com

The issue of repeat appointments has been news in International Centre for Settlement of Investment Disputes (ICSID) cases in recent times, but what’s the concern? The independence of the arbitrator is one of the cornerstones of arbitration. An independent arbitrator is one who has no close relationship with a party in the arbitration or its counsel, be it of a financial, professional or personal nature. It is crucial that an arbitrator has no such relationships because they might induce the arbitrator to decide in favour of one of the parties, irrespective of the merits of the case.

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Travers Smith: CPR 36: time for a re-boot?

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Jan-Jaap Baer

Partner, Travers Smith

Emma Reynolds

Associate, Travers Smith

In April this year, CPR 36 underwent the latest in a series of amendments. These amendments did not amount to a root-and-branch overhaul of the regime but rather to a reorganisation and codification of existing principles, largely designed to address issues which have been thrown up by recent court decisions. The changes were generally welcomed as providing a greater degree of clarity for litigants when navigating their way through what remain complex and densely drafted rules. However, there remains a question as to whether a more radical overhaul of the rules is desirable.

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Signature Litigation: Policing arbitration – can accountability deficit be addressed?

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Natalia Chumak

Partner, Signature Litigation

natalia.chumak@signaturelitigation.com

Nick Storrs

Senior associate, Signature Litigation

nick.storrs@signaturelitigation.com

Over recent decades, arbitration for dispute resolution has become increasingly popular. Commercial parties are becoming far more amenable to resolving their differences by private means rather than through national court systems, which can be more costly and time-intensive. There is, of course, nothing wrong in engaging in a private, consensual process and there are numerous advantages of doing so. But the framework within which such disputes are resolved must be unimpeachably robust in order to meet the objective in any dispute resolution process: to do justice between the parties in accordance with the law. Accordingly parties’ autonomous right to submit disputes to arbitration needs to be structured within a legislative framework which governs and regulates the arbitral process. This is in part to:

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Signature Litigation: Legal privilege: far from resolved

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Abdulali Jiwaji

Partner, Signature Litigation

abdulali.jiwaji@signaturelitigation.com

Daniel Hayward-Hughes

Associate, Signature Litigation

daniel.hayward-hughes@signaturelitigation.com

The right of clients to preserve the confidentiality in advice provided by their lawyer is fundamental to English common law. Other common law jurisdictions such as Australia, New Zealand, Singapore and Hong Kong have all gone one step further than England by entrenching legal advice privilege and protection from disclosure into statute. Legal advice privilege applies to confidential communications between a lawyer and client for the purpose of seeking or obtaining legal advice. Problems can arise though when it is unclear who the instructing client is and whether the lawyer is actually a ‘lawyer’ for the purposes of the common law test for privilege.

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Quinn Emanuel Urquhart & Sullivan: Party-appointed arbitrators, impartiality and a perceived need for change

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Anthony Sinclair

Partner, Quinn Emanuel Urquhart & Sullivan

anthonysinclair@quinnemanuel.com

It is an old adage that the quality of any arbitration as a method of dispute resolution is only as good as the arbitrators themselves. The lack of substantial scrutiny over the arbitrators’ decision rests on the assumption that the parties wish to avoid any extensive review of the arbitral award by the courts at the seat of the arbitration (or indeed anywhere else).

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