Authors: Judy Wang & Xiaoyu Huang*
| Jurisdiction: Brazil United States |
Topics:
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The conference entitled “Arbitration in Two Worlds,” hosted over two days on Aug. 26 and 27, brought together scholars, practitioners, and students for an in-person sequence of discussions about arbitration in the two Americas. Hosted at JAMS and the Brazilian-American Chamber of Commerce, both in New York, the event provided valuable insights from active practitioners and seasoned academics alike. Panel topics included international arbitration from the client perspective, future outlooks on arbitration, evidence production, and current challenges to domestic and cross-border arbitration. Sponsored by Cleary Gottlieb Steen & Hamilton LLP, Sergio Bermudes Advogados, and supported by Marques Rosado Toledo Cesar & Carmona Advogados, Wald Advogados, and MAMG Advogados, the event was a joint effort among Arbitration Channel, Columbia Law School, and New York University School of Law.
Day 1 (Friday, August 26)
The first panel was stylized a “Pre-Event Panel.” Entitled “Why Companies Should Refer Their Disputes to Arbitration: The Client’s Perspective,” it addressed a series of threshold questions for arbitrators and counsel: How do clients view international arbitration and what are their goals? When and why do they choose this mechanism to resolve disputes? Panelists Cristiano Zanetti (Cristiano Zanetti Advogados), Jennifer Permesly (Skadden Arps Slate Meagher & Flom LLP), Ana Luisa Hieaux (Vice President and General Counsel, Grupo Carrefour Basil), Alexandre D’Ambrosio (Executive Vice President for Legal, Tax, Corporate & External Affairs, Vale S.A.), Rekha Rangachari (Executive Director, New York International Arbitration Center), and Rick Sinkfield (Chief Legal Officer, Laureate Education) engaged in a dynamic exchange regarding the in-house, outside counsel, and institutional considerations from both Brazilian and U.S. perspectives on international arbitration’s advantages and drawbacks as an avenue for multinational dispute resolution for corporate clients.
Topics discussed include considerations behind choosing the arbitral seat, choosing the applicable law, appointing arbitrators, balancing confidentiality with transparency, consideration of “commercial reasonableness,” and integrating additional ADR mechanisms. The panel recognized international arbitration’s advantage in handling complex contractual disputes with industry expertise and procedural efficiency, while addressing the caveat that some national judiciaries may be a sensible choice for some cases they repeatedly handle. Additionally, the panelists agreed that arbitration’s relative confidentiality helps protect businesses and individuals acting in their official capacity from potentially one-sided reputational attacks, adding that such confidentiality also helps protect arbitrators’ independence by sheltering influence from public opinion. On the other hand, speakers were receptive to the idea of the selective publishing of awards to help provide transparency on arbitrators’ track records beyond those opinions published by arbitrators in academia to diversify the pool of arbitrators with available insights and reduce the inefficient concentration of appointments on select arbitrators. The discussants added that such efforts are consonant with DEI efforts currently underway across the profession.
Panelists converged on observations that arbitration proceedings can become excessively complex on some occasions, stating that mediation, conciliation, and additional ADR mechanisms may have advantages in helping parties identify middle grounds thanks to their procedural flexibility and non-binding nature. They concluded on a note of unity: “At the end of the day, it is about solving problems,” no matter how the disputants and arbitrators get there.
Day 2 (Saturday, August 27)
After breakfast, Professor Carlos Alberto Carmona, partner at MRTC Advogados and a professor at the University of Sao Paolo, delivered welcome remarks. He characterized the day’s proceedings as an “encounter,” perhaps a “meeting by chance,” among sponsoring law schools, generations of lawyers and law students, and nations. He acknowledged the assistance of all organizers and of Canal Arbitragem.
NYU law professor Franco Ferrari gave a keynote speech entitled “National International Commercial Arbitration.” His thesis was that international arbitration remains embedded in national law. Professor Ferrari borrows a formulation of F.A. Mann’s: “[in] the legal sense, no international commercial arbitration exists, and every commercial arbitration is subject to national laws.” The lex arbitri, firmly a part of national law, remains paramount for litigants. Since many nations impose unilateral rules when such rules are available, all arbitration is to some extent national (whether domestic or international). Put another way, by fixing arbitration in a country which embraces what Professor Ferrari calls “the territoriality principle,” the parties will trigger the relevant national law, including annulment powers (which are substantial across different jurisdictions). The UNCITRAL Model Law is based on the territoriality principle, and many countries which have not embraced the Model Law have nevertheless moved in its direction. Furthermore, international arbitration has a national character because many countries have created so-called “arbitration havens” to attract the business of international arbitration. This is a positivist movement, noted Professor Ferrari, which has the aim of delocalizing and severing ties between arbitration and domestic law. Reciprocity requirements, furthermore, are decreasing, despite the fact that 169 countries enforce the New York Convention. Although Professor Ferrari’s remarks depart from an intuitive premise, they support the conference’s notional assumption that multiple “worlds” of arbitration interanimate to generate complex outcomes and motivate discrete legal considerations.
Panel I was moderated by Debora Visconte, founding partner at Visconte Advogados. Entitled “What the Future Has in Store for International Arbitration,” the panel featured Brian King, independent arbitrator and former partner at Freshfields Bruckhaus & Deringer LLP; Caetano Berenguer, partner at Sergio Bermudes Advogados; Guilherme Recena Costa, associate at Debevoise & Plimpton LLP; and Pretti Bhagnani, partner at White & Case LLP.
The first topic discussed was “Arbitral Hearings in the Post-Covid Era.” Mr. King led. He began with an overview of virtual and hybrid hearings, stating that arbitrating parties are beginning to prefer virtual hearings over delayed proceedings as a result of travel restrictions. The community adapted very successfully, Mr. King said, as he found when the cases he arbitrated moved smoothly online following the imposition of lockdowns. According to a White & Case survey, in 2018, 68% of respondents never or rarely have even heard of virtual hearings, whereas by 2021, 73% of respondents had participated in them. Arbitrating parties, perhaps counterintuitively, are not averse to virtual proceedings: 80% approved of their use, citing greater flexibility and procedural simplicity. However, respondents also pointed out that it is difficult to schedule across time zones. Counsel noted the difficulty of cross-examining witnesses and evaluating testimony virtually. On this point, Mr. King presented research by Professor Toby Landau which concluded that witness testimony in arbitration, as a general matter, needed to be overhauled for five reasons. First, witnesses are selected for their resiliency on cross-examination, not for their knowledge of underlying events. Second, witness statements are drafted by lawyers and read like pleadings, which obfuscates the factual assertions. Third, witnesses are extensively prepared to the detriment of candor. Fourth, human memory is fallible and easily manipulated. Fifth and finally, cross-examination is “disproportionate” and does not help the tribunal to understand or test the evidence. According to Professor Landau, possible fixes include early arbitrator involvement to guide witness selection; more focused and shorter cross-examination; and a general “leveling of the playing field.” Mr. King endorsed Professor Landau’s view that arbitrator sensitivity to the limits of what witness effectiveness can bring about their more judicious use. To the extent that his criticisms (which were initially levied at in-person proceedings and treated by industry experts as “blasphemy”) are correct, Mr. King implied, the risks of virtual proceedings to the efficacy of cross-examination might be overstated. Moving forward, Mr. King added, virtual proceedings are “here to stay” and probably will be more prevalent for procedural hearings and oral argument, with a hybrid merits hearing featuring remote testimony. In any case, virtual teleconferences will be an important modality of international arbitration proceedings. Following Mr. King’s remarks, Mr. Recena Costa added that there is no right to in-person hearings in international arbitration. Expert witnesses are more important than testimonies. Concerns that witnesses’ subtleties of expressions are lost over Zoom are overblown. However, valuable in-person interactions with colleagues, which may help win arguments, are lost. And any concerns about the format of proceedings are dwarfed by the importance of domestic legal frameworks. Ms. Bhagnani added that witness testimonies differ because there are different traditions as to the role of the witness. The civil and common legal systems prefer different extents of witness involvement. Before a civilian arbitrator, Ms. Bhagnani remarked, the witness rarely matters, and the civilian arbitrators rarely writes down so much as a note (while their common law-trained counterpart takes down voluminous information). Mr. King asked his colleagues, “How many cases do you think there are in which witness testimony moved the needle?” Ms. Bhagnani responded that there were not many, while Mr. Recena Costa repeated his earlier point that expert witnesses are far more consequential than lay witnesses. Mr. King concluded the topic by mentioning a recent ICC report which raised concerns of biased memory on the part of lay witnesses.
The panelists moved onto the second topic, “Pros and Cons of Setting Aside the Confidentiality of International Arbitration,” led by Mr. Recena Costa. He began with reference to a recent CBAR survey, which indicated that among litigant concerns, confidentiality is routinely among the forerunners. The benefits of confidentiality are well known: to protect sensitive information, to maintain trade secrets, to practice asymmetric warfare, and to prevent opposing parties from obtaining damning information and threatening to damage one’s case. Domestic law, to a certain extent, plays a role in how much confidentiality the opposing parties may claim, and the parties have often contracted around the domestic default rule to add even more confidentiality. However, too much confidentiality can damage the development of law. The role of precedent in commercial law is to provide general guidance to the body of case law; to provide certainty, predictability, and consistency to future litigants; and even to facilitate investment (as parties’ expectations can thus be clarified). What’s more, the availability of information allows parties to design better contracts and facilitate a priori resolution of disputes. Finally, disclosure allows the public to educate itself and debate policy. Even as arbitrators increasingly cite procedure and conflicts of laws, thereby increasing the substantive reference to domestic court decisions, there is an increasing trend to keep not only the reasoning confidential, but the amount awarded as well. However, for all parties involved, there is at least theoretically an incentive to lower transaction costs at the negotiating table by having some knowledge of precedent, including knowledge of the predilections of the members of the tribunal. Mr. Recena Costa pointed to the remarks of Lord Thomas in 2013-17: the success of arbitration has become a serious impediment to the development of law in the U.K., the legal certainty of which had made London an attractive seat in the first place. While party autonomy, including the autonomy to keep awards confidential, must be respected, it is important to avoid “[throwing] the baby out with the bath water.” Mr. Recena Costa proposed that, rather than jettisoning arbitration as an overly confidential institution, the arbitration community should advocate for the publicization of awards after a set time, perhaps two years, in order to inform the public and future litigants. (However, under this system, the parties can still request redactions.) There is already a joint effort underway by Jus Mundi and the ICC to this effect. Even then, Mr. Recena Costa said, there is a collective action problem. The parties’ interests are simply too far removed from the public good. What’s more, the value of such an effort is in doubt, as arbitrators only routinely cite arbitration precedents in conflict-of-laws situations. And arbitrators do not always cite arbitration precedents: in the U.S., arbitrators may refer to Delaware law whereas in Brazil, the arbitrators may refer to legal experts. Mr. King replied that some classes of cases are almost always arbitrated from something akin to standard-form contracts, so that there is a gap in the law. Some litigants, such as large pharmaceuticals, will always maintain prioritize confidentiality and will not move their position on the matter. Additional transparency, to the extent possible, must be voluntary, and the parties have no incentive to gratuitously develop the law for others’ benefit. There is far more availability of bilateral investment treaty (BIT) precedents; for ICSID matters, unless the clients leak the award, the award is almost always confidential. Mr. Berenguer stated that, from the client’s perspective, arbitration is fundamentally about choice. If they want the arbitration to be confidential, so it must be. However, it is always in the client’s interest to know what the arbitrators think, rather than relying solely on counsel. Recalling Mr. D’Ambrosio’s comments from the previous day, Mr. Berenguer concluded that clients’ ultimate interests lie in confidentiality. Ms. Visconte added that given the ambiguity of the proposition that publicity really improves quality, perhaps “institutional scrutiny” may be sufficient.
The third topic of Panel I was “Lengthy Disputes.” Ms. Bhagnani led from the premise that arbitrators’ speed and efficiency are overstated. Short cases are resolved in 13 months, whereas longer arbitrations need two to five years to run their full course. Users are frustrated by this situation: not only do they rue mounting costs, but they also blame counsel and arbitrators for what they expected would be expedited proceedings. 20% of respondents in a recent survey wanted more rules for arbitrators to impose sanctions and cross-sanctions between counsel and arbitrators of bad conduct by parties. There is some truth to the perception that arbitrators are usually unwilling to address vexatious behavior, even as parties are more concerned about cost overruns then ever. Recent developments to address this situation include fast-track hearings, virtual hearings, and joinder and consolidation of analogous arbitrations. What can counsel and arbitrators do to expedite disputes? A recent Queen Mary survey indicated that respondents are willing to forego document production if it can make the arbitration more productive (however, the issue would need to be addressed at the contracting phase). Ms. Bhagnani suggested that arbitrators perhaps may not always want to take a conservative approach to due process; they should be bolder and be prepared to take a harder line, and even consider cost-shifting to punish bad behavior. Mr. King contributed an anecdote: one arbitration took six months from start to finish, and the award was rendered 30 days after the last day of the hearing – a delay unimaginable in U.S. domestic proceedings. He acknowledged that large cases have a commercial incentive for lengthy proceeding, yet “[when] parties are committed” to a speedy resolution, they can accomplish it. He suggests scheduling multiple case management conferences to serve as check-ins to avoid delays and foreclose the “endless back and forth of letters over procedures.” He joins Ms. Bhagnani’s criticism of “due process paranoia.”
The final topic of Panel I was entitled “What is a Pro-Arbitration Idea?” Mr. Berenguer led, first acknowledging that this discussion could become incredibly relative and subjective. What exactly does it mean to be pro-arbitration? How does one define such principle or policy? Recognizing the complexity of the broad question, Mr. Berenguer refers a cleaner, narrower definition to the successful reconciliation of colliding values and possible tradeoffs. For example, there is a tension between efficiency and consent. To the extent that a country can effectively balance party autonomy yet improve efficiency and diligence, a country embraces a “pro-arbitration idea.” The panelists agree that Brazil is a pro-arbitration country. Yet, a recent bill restricted arbitrators to taking on only 10 cases (Mr. Recena Costa interjected that this was a “disaster”), and new standards of conflict disclosure in Brazil forced arbitrators to disclose anything that could raise “minimal doubts.” The panelists also agree that these decisions, which facially protect arbitration, demonstrate how pro-arbitration values can be used to hurt arbitration. Agreeing that this recent bill will not pass, the panelists returned to the tentative conclusion that Brazil was a pro-arbitration state. More transparency about the arbitrators’ case loads may push arbitration toward curing market inefficiency and even increase arbitrators’ overall diversity (harkening back to the previous day’s conclusion), but a better proposition for increasing diversity would be to “show their merit [and] intelligence” (Ms. Bhagnani) and ask parties for feedback about their arbitrators (Mr. Recena Costa). With regard to conflicts and “minimal doubt,” there was some disagreement about whether such a policy would render a state “anti-arbitration.” From the audience, Professor Ferrari added that subject to mandatory law, the arbitrators may not actually be able to waive every conflict. While courts will still have scrutiny over the matter, the parties will not usually choose a seat where one cannot waive conflict. Mr. Recena Costa replied that the lex arbitri is more consequential than the governing domestic law. No matter what happens to the proposed bill, “[the] PR aspect” does not favor Brazil as an arbitral seat. Another audience member suggested that there may be political influences behind the bill. Yet another suggested that the annulment procedure should be made public. A practitioner from Nigeria shared that in their domestic practice, “everything becomes public when it reaches enforcement.” Professor Ferrari suggested that every litigation related to arbitration should leave out the parties’ names. In conclusion, the speakers agree that a “pro-arbitration idea” balances disclosure and confidentiality, autonomy and upholding the lex arbitri.
Panel II was moderated by Gustavo Vaughn, international attorney at Cleary Gottlieb Steen & Hamilton LLP and recent LLM graduate of Columbia Law School. Entitled “Practical Matters on the Production of Evidence,” the panel featured Caline Mouawad, partner at Chaffetz Lindsey LLP; Erica Franzetti, partner at King & Spalding LLP; Friedrich Rosenfeld, professor at New York School of Law, and Dr. Kabir A.N. Duggal, senior international arbitration advisor at Arnold & Porter Kaye Scholer LLP. Ms. Mouawad began the discussion with reference to the recent AlixPartners Supreme Court case, which ruled that a district court can order discovery under 27 U.S.C. § 1782(a) for a “foreign or international tribunal” only if it is imbued with governmental authority. The Court went on to hold that international commercial arbitration and investor-State arbitration were not “imbued with governmental authority” because they do not show an intention to confer governmental authority to an ad hoc panel. A vote of hands ensued: most attendees thought that the decision is anti-arbitration. Yet Ms. Franzetti said that counterintuitively, the decision may be good for international arbitration because “it levels the playing field”: just as U.S. parties are unlikely to gain assistance in foreign courts, foreign parties are now denied assistance in American courts. U.S.-style discovery probably stands to shrink under this decision. Ms. Mouawad added that fraud, criminal-type settings, and the Federal Rule of Civil Procedure will check attorney behavior even in the absence of discovery. Professor Rosenfeld added that due process is a catch-all conceptual thing that encompassed three elements: (1) the right to be heard, which hoists upon the tribunal to acknowledge and take evidence on the parties’ claims rather than to ignore them; (2) the right to treat the parties equally (the panelists disagree on whether this is a substantive or procedural right); and (3) the duty to respect the parties’ agreement on procedural issues. Dr. Duggal stated that AlixPartners was a “terrible decision” (because the Court adopted a counterintuitive interpretation of the term “foreign or international tribunal”), and he adds that U.S. law takes a strong normative position on unlawfully obtained evidence (as expressed through the oft-quoted phrase “fruit from the poisonous tree”). French law gives the same “hard line” position, even though the lex arbitri of France and America share few other differences. Under this reading, added Mr. Vaughn, the court did not touch upon public policy, but merely extended its recent textualist tendencies. He added that due process has a much narrower meaning in U.S. law than as articulated by Professor Rosenfeld. The panel moved on to a discussion about whether arbitrators are factfinders (in the civilian sense) or truth-seekers (in the common law sense). Ms. Franzetti sought a middle ground where arbitrators are truth-seekers “within the parameters of the arbitration.” In other words, they should be “active,” but there should be no independent factfinding for issues beyond what was submitted by the parties. Soft law should guide arbitrators in finding the appropriate balance. The panelists then discussed the flip-side problem: Should arbitrators apply legal provisions beyond the law specified by the parties’ agreement? Ms. Franzetti thought that the tribunal must respect the legal framework determined by the parties. Ms. Mouawad added that some national laws actually impose on arbitrators a duty to apply the local lex arbitri regardless of what is contained in the arbitration agreement. A comment arose asking whether the evidentiary standard should be “truth” or “preponderance of the evidence.” Ms. Mouawad added the query of whether witnesses must be independent or impartial. Professor Duggal agreed with Ms. Mouawad that such a question should be raised, stating that there are few non-party witnesses have the time, expert, and interest in participating. Ultimately, the panelists concluded, the tribunal has significant discretion in assessing, allowing, and even incorporating publicly available evidence, and that the tribunal is constrained by the availability of willing experts in its factfinding quest.
Professor George Bermann delivered remarks over the lunch hour. His presentation was entitled “Beijing Shougang v. Mongolia: The Latest ‘Pro-Arbitration’ Error.” In the U.S., it is firmly established that a party has a right to a judicial determination of whether that party consented or did not consent to arbitrate. In Beijing Shougang, a recent Second Circuit decision, Chinese claimants brought an expropriation claim, and respondent Mongolia challenged the jurisdiction of the tribunal. The tribunal declined jurisdiction, and the claimants sought annulment of this jurisdictional award. It now asked the district court to exercise independent review over the jurisdiction question. The district court sided with the respondent, reasoning that because the claimants appeared before the tribunal to defeat a challenge to arbitration, under First Options, it clearly and unmistakably gave up its right to have the award rendered against it reviewed by a court. The Second Circuit affirmed on appeal, holding that if a respondent challenges jurisdiction and the claimant responds, then the claimant loses their jurisdictional challenge post-award. The court added in dicta that its decision was pro-arbitration. Professor Bermann heavily criticized this holding, stating, “the court thinks that it’s pro-arbitration to deny [a party] review of the jurisdiction of the tribunal in a court because at the beginning of the arbitration, [a party] argued jurisdiction.” Yet this should not be the policy of the court, stated the professor. “No one has ever thought that [a party has] to choose between discussing jurisdiction before the arbitrators and after the award is rendered.” In other words, the court has put claimants into a bind. Many decades ago, the prevailing belief was that if a party appeared before a court for interim relief, the situation was pro-arbitration because the courts would not be allowed to interfere with arbitration. Today, the opposite position is the prevailing wisdom: appearance before a court during an arbitration is considered anti-arbitration. It is not always pro-arbitration for an arbitration to proceed, or to shelter an award from review over the question of whether a party consented to arbitrated, Professor Bermann concluded. “Rather than using the label ‘pro-arbitration,’ we should attach the label pro-arbitration only we have determined that it is in the long-term legitimacy interests of arbitration.”
Professor Bermann’s talk was followed by a Q&A panel featuring Professor Carmona and Yasmine Lahlou, partner at Chaffetz Lindsey LLP. The wide-ranging discussion featured topics such as the regulatory sovereignty of the state, the “mono local theory,” and the role of national law in international arbitration. Ms. Lahlou stated the national law gives arbitration its legally binding character, but clarifies that arbitration is not subject to one single law. National laws do differ from one another, and it can promote certainty without hindering party autonomy. After all, Professor Carmona said, parties still choose the seat; many national laws are not mandatory in their lex arbitri (added Ms. Lahlou – as a result of the delocalization movement). There is no party autonomy, after all, if the local legal order does not grant it. Clearly, national law of the seat is the one enabling the arbitration. Professor Carmona added that it is usually impossible to hold hearings outside of the arbitral seat, as it will be a form of extraterritorial application of jurisdiction. The choice of seat, in this view, becomes of utmost importance, not the least because it determines whether the New York Convention and rules of reciprocity applies. An audience member added that the overall importance of the New York Convention has been decreasing. Article V(1)(e) of that convention clearly confirms the preeminent role of the seat for enforcement and recognition proceedings; in practice a foreign lex arbitri is not usually chosen. The decreasing role of the Convention is seen in the vibrancy of domestic laws such as France’s. Differences between international and domestic law, stated Ms. Lahlou, forecloses one from speaking of a uniform “concept” of international commercial arbitration subject to a uniform regime.” Practice continues to differ from jurisdiction to jurisdiction, and awareness of the local “legal culture” forces practitioners to avoid “uncritical importation of foreign legal theories.” The speakers agree that differences persist between the “two worlds” of international arbitration, and among any combination of the arbitral worlds.
The final session of the day, Panel III, featured two debaters and three additional speakers (“the panelists”). On the topic of “Current Challenges to Domestic Arbitration,” Rafael Alves, partner at MAMG Advogados, engaged in lively interchange with Riccardo Torre, partner at Wald Advogados. Panelists Erika Levin, partner at Fox Rothschild LLP, Katharine Menendez de la Cuesta, partner at Holland & Knight LLP, and Elisa Zavala, associate at Cleary Gottlieb Steen & Hamilton LLP, contributed to their discussion. The free-ranging debate began with a discussion about the annulment of arbitral awards, stylized by the debaters as a “haircut.” The panelists agreed that the successful rate of challenge is low, yet parties want to challenge unfavorable results, and policy counsels that wrongfully rendered awards be challenged. The second topic was waiver of the right to arbitrate. Ms. Levin stated that often there are “messy facts” that surround an arbitration agreement. Mr. Torre queried whether such messiness can “constitute a waiver as against public policy.” The panelists answered in the negative and further added that the applicable law must govern. While annulment rates have risen, the majority of awards were being upheld rather than vacated. The debaters added that in Brazil, not many sett-aside disputes are arising. A preliminary consensus arose on the conclusion that awards were more often upheld than stricken. The third topic of discussion was the duty to disclose. The panelists noted that Brazil is pre-disclosure “without a duty to investigate.” Yet every right “has its abusive form” (Mr. Alves), and so some form of limitation, including in the form of soft law, must be established. In the U.S., on the other hand, conflicts are hard to identify intra-law firm. What exactly should a partner with hundreds of connections disclose? What exactly is the “appearance of impropriety”? Ms. Zavala added that arbitrators are proactive in pre-arbitration disclosure in the United States to avoid suspicion, while mid-arbitration disclosure may be more scrutinized due to reputational and pragmatic concerns. Ms. Levin brought up a related query, “What is the standard of corruption?” Ms. Menendez de la Cuesta added that there is no transnational standard for impropriety. In American-style domestic arbitration, there is much stronger discovery and predilection for investigation, especially given the prevalence of ABA rules (in contradistinction to Brazilian “disclosure recommendations”). Mr. Torre and an audience member noted frivolous challenges and sanctions to a lawyer, as well as “soft” reputational concerns among what is ultimately a very small community. After audience members shared concern with onerous disclosure requirements, the panelists proceeded to the fourth and final topic: third-party funding. The discussion circled back to the discussion regarding disclosure: as litigants become increasingly comfortable with disclosure, parties are less concerned about conflicts (having survived a rigorous disclosure process), and the parties noted the need for regulations and the need to avoid “funding paranoia.”
A reception concluded the conference.
* Judy Wang is a second year J.D. candidate at Columbia Law School. She is a Chinese national and has studied in China, the U.S., and Switzerland. She graduated from Bates College with a double major in history and politics and is the 2022-23 J.D. Co-president for the Columbia International Arbitration Association. Xiaoyu Huang is the development editor of The American Review of International Arbitration and a current second-year student at Columbia Law School. A recent graduate of Brown University, he was also the co-founding vice president of Pansophy Education Institute, an education and immigration company based in Vancouver, Canada.