Published: August 2017
Description: Columbia Arbitration Day consistently attracts some of the leading scholars and practitioners in the field for an annual discussion on current issues facing the international arbitration community. The theme of this year’s conference, “Striking a Balance: Confronting Tensions in International Arbitration”, considers arbitration as a system beholden to many diverse interests. Occasionally, these interests conflict and adjudicators are left to resolve these tensions, often without any defined hierarchy. Both counsel and arbitrators are forced to engage in the delicate endeavor of striking a balance between equally legitimate, yet irreconcilable interests. Absent clear-cut answers in doctrine or case law, solutions to these interests are usually reached on a case-by-case basis, and do not always lead to optimal results.
The aim of this year’s conference was to highlight situations where these conflicts exist, and discuss ways to move towards more effective solutions. The panels considered the issue of double recovery, the admissibility of illegally obtained evidence, conflicting sources of state liability, and the choice of ethical rules in international arbitration. Summaries of these discussions were prepared by members of the Columbia Arbitration Day Board and are provided below. The views presented in these summaries are the personal views of the panelists, or reflect the positions the panelists were asked to argue, and do not necessarily reflect the views of The American Review of International Arbitration, Columbia Law School, or the panelists’ affiliated organizations.
PANEL 1 – The One Thousand Faces of Double Recovery
The prohibition of double recovery has generally been perceived as a straightforward principle, whose application should not be much trouble for arbitrators. Is that view justified in light of the modern complexity in business relations, corporate structures and international law instruments?
PANEL 2 – The Admissibility of Illegally Obtained Evidence in International Arbitration
[…] the focus of this panel was the specific issue presented by evidence which, though obtained by illicit means, tended not to implicate the adducing party in the illegality. Primary examples of the source of such evidence include documents published on Wikileaks or those disclosed in the Panama Papers leaks.
PANEL 3 – Conflicting Supranational Obligations: The Complex Web of State Liability
The proliferation of investment treaties and the increasingly integrated system of state interactions, in the form of regional organizations (such as the EU) and international agreements (such as trade agreements and environmental protection treaties, have resulted in states sometime undertaking conflicting international obligations. […] how do these obligations coexist?
PANEL 4 – Ethical Rules: Reconciling Conflicting Sources and Traditions
The fourth and last panel of the day explored the maze of potentially conflicting ethical rules applicable in international arbitration.