Author: Sophie Nappert**
Published: September 2019
Practice and Procedure
In modern times, disruptive innovation is the poster child for progress. Uber for taxis, Airbnb for hotels, Netflix for movie watching, Amazon for retail everything, have taken their place in the daily fabric of our lives and in no time at all weaved themselves into our reflexive habits, quietly destroying entire swaths of the economy in the process with a cost-effective approach to disintermediation (doing away with intermediaries) and dematerialisation (being virtual).
And the rise of Blockchain is about to take disintermediation and dematerialisation to a new level.
The legal field is not immune to this phenomenon, albeit it is fair to say that we are woefully unprepared to address it, and have yet to articulate meaningfully and confidently how we remain relevant in an era where the services we provide can be (will be) disintermediated, and dematerialised.
When the Chief Justice of the UK Supreme Court, in one of the most arbitration-friendly jurisdictions on the planet, bemoans the negative influence of arbitration on the development of English law; when the EU, a behemoth not known for its nimble footing, performs a 180-degree turn in less than a year from its initial, resolutely pro-ISDS stance towards pushing forward a court proposal complete with appellate jurisdiction on fact and law; when international commercial courts with English-speaking judges are being set up in France, Germany, Belgium, the Netherlands and Singapore to provide modern, timely, practical resolution to cross-border disputes; when, perhaps most tellingly of all, scholars and commentators welcome these developments as an opportunity for introducing standards of legitimacy and transparency that they perceive IA in its current form is not addressing adequately; in light of all this I put it to you that the time has come to ponder (1) the quality of output of IA as a normative system; (2) whether we have reached the limits of the current construct of IA; and (3) how that system can continue to be not only relevant, but directional, in the era of disruption as the new black.
*This lecture was originally presented at the Proskauer Lecture on International Arbitration on 12 June 2018 in New York City. This lecture is being re-published in its original form.
**Sophie Nappert is a dual-qualified lawyer in Canada and in the UK. Since 2007 she has been an arbitrator in independent practice, based in London. Before becoming a full-time arbitrator, she was Head of International Arbitration at a global law firm. Ms. Nappert is trained and has practised in both civil law and common law jurisdictions. She is the peer-nominated Moderator of OGEMID, the online discussion forum on current issues of international investment law, economic law and arbitration. She is ranked in Global Arbitration Review‘s Top 30 List of Female Arbitrators Worldwide and is commended as a “leading light” in the field by Who’s Who Legal.