Authors: Camila M. Simão* and Elora N. G. Farias**
The first temperature drops in November heralded the start of the long-awaited 2021 New York Arbitration Week, promoted by the New York International Arbitration Center (NYIAC) and the New York Branch of the Chartered Institute of Arbitrators (CIArbNY). From November 15-19, New York City was the stage of three in-person events and seventeen webinars[1] streamed around the globe. Students, scholars and practitioners not only got together after almost two years with no in-person events but were also able to engage in hot-topic discussions about international arbitration.
Day One (November 15)
In the first panel, organized by the American Arbitration Association (AAA) and the International Center for Dispute Resolution (ICDR) and moderated by Eric P. Tuchmann, speakers Suzana Blades, Edward Diggs, Kevin Feeney, F. Teresa Garcia-Reyes, and Eugene J. Silva II shared their experiences as in-house counsel with oil and gas arbitrations in the past years.[2] They highlighted that the pandemic has not led to a significant increase of big lawsuits and arbitrations and that they were positively impressed with virtual arbitration, particularly virtual mediation, but that they nonetheless preferred in-person hearings for complex cases and lengthy hearings. The speakers also discussed the impact of environmental concerns in oil and gas arbitrations and the role of in-house counsel in the development of the next generation of arbitrators.
Next, the International Chamber of Commerce (ICC) hosted a discussion on its scrutiny process, which was presented by ICC Madam President Claudia Salomon, and discussed by Court members Todd Wetmore, Ndanga Kamau, Ina C. Popova, and Maria Chedid, who also gave tips to arbitrators on what to focus on when drafting effective and enforceable awards.
In the afternoon, the American Society of International Law held an Oxford-Style debate on res judicata in international arbitration, moderated by Emma Lindsay. Simon Batifort and Ben Love argued on both sides of the proposition that “an arbitral tribunal’s decision should bind other arbitral tribunals subsequently deciding on the same issue(s) of fact or law.” The debate was obviously for the sake of the discussion and did not necessarily reflect the panelists’ personal beliefs. Whereas Batifort argued in favor of the proposition, mainly highlighting the issue of conflicting decisions and the disregard of the subsequent tribunal on matters of facts and law, Love brought a very strong case based on the very purpose of international arbitration, which is the mission of an arbitral tribunal to decide the case before it. After each counsel had the floor to present their case, the tribunal formed by Ben Juratowitch QC, Carmen Martinez Lopez, and Lucinda Low asked a few questions and then reached the conclusion that an arbitral tribunal is not bound by previous decisions, which in our view demonstrates the tendency of arbitrators and scholars when facing this issue. The arbitral community is still not embracing the possibility of creating an arbitral jurisprudence.
The first day closed with a kick-off reception hosted by the organizing committee at the Dear Irving on Hudson’s rooftop with cocktails and canapés. This was an amazing opportunity for the community to catch up after a long pandemic and for future practitioners to network.
Day Two (November 16)
The second day was marked by perhaps the most awaited in-person event: the David D. Caron Praelium organized by Columbia Law School, King’s College London and Three Crowns. At the Harmonie Club, Christian Leathley and Natalie Reid showcased their outstanding advocacy skills arguing before an arbitral tribunal formed by Lucy Reed, the Honorable Charles N. Brower, and Professor George A. Bermann. The issues were whether (1) the tribunal had jurisdiction over claims brought by a dual citizen of Alderaan and Bespin under the Alderaan-Corellia BIT (amended to preclude claims from investors holding Bespian citizenship), and (2) if an Executive Order adopted by the Corellian Government to close the country’s border to contain the spread of the DARTH-19 virus violated an article on “Entry and Sojourn of Personnel” of the Alderaan-Corellia BIT.
Two webinars were also organized earlier on the second day. The first was hosted by the Singapore International Arbitration Centre (SIAC) and was presented by SIAC Head (Americas) Adriana Uson, with Toby Landau QC, Aníbal Sabater, Dr. S.I. Strong, and Lucy Reed as panelists, and Professor Lawrence Boo as moderator. The topic was about how commercial courts and the Singapore Convention on Mediation may affect international arbitration. The panelists discussed what the SIAC, and institutions in general, need to look out for regarding the future of international arbitration. The second, hosted by the NY City Bar Association, was entitled and focused on “Enforcement of Latin American Arbitration Awards in the United States and U.S. Arbitration Awards in Latin America.” Alejandro Garro served as moderator, alongside panelists Elsa Ortega, Maria Ines Corra, Marcela Levy, Jennifer Permesly, and Eduardo Zuleta. Effectively, five jurisdictions and the issues revolving enforcement were discussed: the United States of America, Argentina, Brazil, Colombia, and Mexico.
Day Three (November 17)
The third day was the ArbitralWomen day and three webinars were streamed about “New York Stories: Career Options, Opportunities and Challenges in International Arbitration.” In the morning, Yasmine Lahlou and Louise Woods moderated a discussion by Christian Alberti, Lorraine Brennan, Dana McGrath, and Dr. Friedrich Rosenfeld. The speakers talked about the importance and development of the ArbitralWomen,[3] shared some personal stories and discussed the evolution of the arbitration proceeding during the pandemic. In the end, they answered a diversity question on the posture of law firms when dealing with this topic. In the afternoon, ArbitralWomen held two afternoon networking sessions through various breakout rooms, anchored to the themes presented in the morning panel.
This third day also included a webinar organized by CIArb and NYIAC and moderated by Gabrielle Kaufmann-Kohler. The speakers, Adriana Braghetta, Dyalá Jimenez Figueres, Joseph E. Neuhaus, and Elliot E. Polebaum discussed the topic “Getting It Right in International Arbitration,” with recommendations to improve the quality of arbitration in terms of process and outcome. Each panelist submitted an idea to “get it right,” such as selective argumentation versus comprehensive argumentation by parties, parties having a first view of the draft of the award, courses and discussions focused on the substantive issues rather than just on procedural arbitral issues.
Day Four (November 18)
Thursday was a busy day. It started off with a 3-part series organized by the Young International Arbitration Practitioners of New York (YIAP-NY) in partnership with NYIAC, focusing on important topics related to arbitrating in the “Post-Covid Virtual Arena.” In the first session, Desi Vlahos discussed mental health in the virtual world; in the second session, Jose Maria de la Jara shared lessons learned from battling virtually; and, lastly, Chris Campbell talked about how to get the experience needed to advance a career post-Covid. Each session included breakout rooms for guided networking.
The fourth day also had webinars organized by the International Institute for Conflict Prevention & Resolution (CPR), JAMS and the Silicon Valley Arbitration & Mediation Center (SVAMC).
CPR hosted the “Getting It Right – Choosing the Right Arbitrator” panel, in which Preeti Bhagnani, Theo Cheng, James Cowan, Christina Hioureas and the moderator, Helena Tavares Erickson, shared their experience on the best practices to choose an arbitrator. The conversation addressed several intriguing and relevant issues such as the client’s role in the selection of arbitrators, pre-appointment interviews, sustainability and diversity.
JAMS then hosted two panels. In the first panel, the moderator, Hon. Ariel E. Belen (Ret.), and the speakers, Justice Indu Malhotra (Ret.), Former Judge, Rt. Hon. Lord Neuberger of Abbotsbury, Justice Saliann Scarpulla; and Abby Cohen Smutny debated the similarities and differences between the roles of a judge and of an arbitrator. The panel raised interesting points on impartiality, appreciation of procedural rules, dissenting opinions, interaction between members of a tribunal and dealing with precedents and previous judicial opinions. The second panel, moderated by Conna A. Weiner, focused on the role of non-adjudicative dispute resolution methods in international arbitration. Edna R. Sussman discussed the Mixed Mode Project and the history and work of the ICC ADR and Arbitration Advisory Task Force. Javier Oroz Coppel talked about how successful companies have ADR mindsets and shared his experience in advocating for and using ADR in AXA Mexico. Fiona Meany stressed the effectiveness of mediation, since, in her view, it provides in-house counsel more control over financial expenditure, time and risk.
Lastly, the panel coordinated by SVAMC featured two debates moderated by Michael Diamant. The first debate was about whether the Prague Rules’ approaches to experts and the role of arbitrators are better for arbitrating technology disputes than the approaches of the IBA Rules of Evidence; the second debate questioned whether the publication of arbitral awards by administrating organizations is beneficial to the arbitration of technology disputes. Two audience surveys were taken at the outset of the debates. The majority of the audience voted that the Prague Rules’ approach was not better than the IBA Rules of Evidence’s and that the publication of arbitral awards was in fact beneficial. After thought-provoking debates between Duarte Henriques and William Baker, Crenguta Leaua and Angela Foster, the audience voted again. The vote for the first question remained the same, but the moderator noted that, in practice, the answer will depend on what the parties think is best for their dispute. The vote for the second question also remained unchanged, but the votes disagreeing that publication of arbitral awards is beneficial increased.
Day Five (November 19)
The final day revolved around the 16th Fordham Conference on International Arbitration and Mediation Conference. The morning began with Edna R. Sussman introducing the launch of the Mixed Mode Task Force Papers (a collaboration between the College Commercial Arbitrators—CCA, the International Mediation Institute—IMI and the Straus Institute for Dispute Resolution at Pepperdine School of Law—Straus)[4] and of the IMI-CCA-Straus Mixed Mode Task Force. Kathleen Paisley, as moderator, Laura A. Kaster, Jeremy Lack, Deborah Masucci, Dilyara Nigmatullina, Professor Thomas J. Stipanowich and Edna R. Sussman talked about how to assist parties and in-house counsel in resolving their disputes and how different proceedings and innovations can be tailored to each dispute.
Following the launch, Louis B. Kimmelman delivered the opening remarks for the first panel on jura novit curia and international arbitration. The panel was moderated by Professor Giuditta Cordero-Moss, who discussed along with Professor Franco Ferrari, Rafael F. Alves, Hon. Francesco Cortesi, Ina C. Popova, and Laurence Shore how to reconcile the assumption that party autonomy is sovereign in arbitration with the purpose of getting an enforceable arbitral award. The conversation involved several important issues, including the tribunal’s power to develop its own legal reasoning, the dilemma of independent legal reasoning against excess of power and whether an arbitral tribunal can grant a remedy not requested by the parties, the relationship between the tribunal’s independent legal reasoning, and the parties’ right to be heard—specifically if arbitrators have an obligation to inform the parties of their legal reasoning and ask for comments.
In the afternoon, Neil Kaplan CBE QC SBS gave the keynote address, focusing on six major topics. First, he reflected on the gap between theory and practice, specifically on the fact that the arbitration community has been discussing the same or similar issues for years and on the difference between what practitioners say in conferences and their behavior in arbitral proceedings. Second, he discussed how a many of the complaints raised regarding arbitral proceedings could be solved by arbitration users themselves, given that arbitration is consensual. Mr. Kaplan noted that arbitration clauses were rarely drafted to minimize commonly raised complaints by, for example, providing for a sole arbitrator depending on the amount in dispute, limiting disclosure or regulating confidentiality issues. Third, he discussed the need for more succinct arbitral awards and the issue of due process paranoia, arguing that if tribunals need to give the parties a reasonable opportunity to present their case, they should also resist requests for an unreasonable opportunity. Fourth, Mr. Kaplan advocated for early opening hearings, and Fifth, he dealt with mediation. Mr. Kaplan noted that he was not inclined, during arbitration, to suggest that the parties attempt mediation, because he believes it is hard to conceive that they would not have considered it already. Nonetheless, if a window of opportunity opens, the ideal time would be after the early opening hearings, when all sides have been presented and the parties have heard the tribunal’s comments and questions. Finally, Mr. Kaplan addressed costs stressing that to some extent the remedy for the parties’ complaints on costs are in their own hands and that costs allocation rules have to be more critically debated in view of their actual efficiency. In the meantime, however, Mr. Kaplan enumerated several measures that can be adopted such as having the arbitrators make clear at the outset of proceedings that they will take parties’ behavior into account. He also pleaded for more formal offers of settlement, which used to be made by way of sealed offers. Mr. Kaplan closed his address by stating that “we must always search for innovation but sometimes innovation can be found in the past.” Taking the Alabama arbitration as an example, Mr. Kaplan reflected that the tribunal had not allowed witnesses or opening from counsel, but permitted the parties’ agents to be present during the deliberation: “this was certainly a novel idea, but as far as I know has never caught on and who knows what the future will bring?”
The panel of the Fordham Conference on International Arbitration and Mediation Conference dealt with technology in arbitral hearings and was divided in two sessions moderated by Paul Cohen and Sophie Nappert. In the first one, Doug Jones AO, Damien Hickman, Jonathan Kallmer and Rekha Rangachari discussed the impact that technology has had and will have on arbitral hearings. In the second session, Marisa Marinelli, Jeffrey A. Rosenthal and Alan Treibitz discussed how technology has changed the presentation of complex information to arbitral tribunals and how it impacts the proceedings.
The curtain fell on New York Arbitration Week with yet another amazing in-person get together at Castell Rooftop and Lounge with cocktails and canapés. We think it is certain to say that the New York arbitral community is excited by next year’s event, hopefully with more in-person events if permitted.[5]
* Camila M. Simão is an ARIA Student Editor, LL.M. Candidate at Columbia Law School, and research assistant to Prof. George Bermann.
** Elora N. G. Farias is a LL.M. Candidate at Columbia Law School, a Member of the 2021-2022 Board of the Columbia International Arbitration Association, and research assistant to Prof. Kabir Duggal.
[1] New York International Arbitration Week 2021—Virtual Programming Calendar, https://nyarbitrationweek.com/2021-calendar/ (last visited on Nov. 30, 2021).
[2] The speakers’ affiliations and short bios can be found in the New York Arbitration Week’s website: New York International Arbitration Week, https://nyarbitrationweek.com (last visited on Dec. 04, 2021).
[3] See ArbitralWomen, https://www.arbitralwomen.org (last visited Nov. 30, 2021).
[4] The papers can be found at IMI’s website: Mixed Mode Task Force, https://imimediation.org/about/who-are-imi/mixed-mode-task-force/ (last visited Nov. 30, 2021).
[5] All webinars were recorded and most can be found at the event’s official website: New York Arbitration Week, https://nyarbitrationweek.com/ (last visited Nov. 30, 2021).