06 Dec 2019
An event hosted at Bentham House by the University College of London delivered by the Chartered Institute of Arbitrators
For a book about the New World of arbitration a distinctly Old World phrase “brand new” ushered in this collection of essays about how ideas and tools evolve as established institutions remain relevant. Some attending thought the phrase Brave New World might be more apt such was the future described by some of the book’s contributors who were speaking at this launch event.
We were told that the book had been some six years in the making and this showed in its erudition and compass with contributors from across the globe some of whom were present at the launch to speak to their respective contributions.
The editors of the work are Rowan Planterose FCIArb and John Tackaberry QC FCIArb. Each editor expertly chaired one of the two panels of contributors each of whom spoke eloquently providing many insights into the issues they had tackled for the book. Space does not permit a comprehensive re-telling but some of the many highlights are mentioned below.
On the first panel Claudia Pharaon MCIArb treated us to discussion of disputes relating to satellites leading to the conclusion that mandatory arbitration might be useful as well, perhaps, as compulsory Comprehensive Insurance. Opportunities for insurers and arbitrators alike in space it seemed from her cogent explanation.
In this context Sadaff Habib MCIArb’s talk about seat-less arbitration seemed particularly relevant in the context of arbitrating satellite disputes, perhaps not so distant either.
As to the chapters concerned with technology and arbitration Fabio Cozzi spoke, amongst other things, about the inadequacies of video-conferencing when compared with tele-presenting technology. Video conferencing was not a tool adequate to the subtle task of cross-examining witnesses and could not enable such key elements of the evidence-giving experience to be considered as body language and changes in skin tone which may be relevant in the arbitrator’s assessment of a witness and all lost during video conference. Tele-presenting conveyed the whole person in a kind of hologram enabled process.
The chair of this panel, Rowan Planterose FCIArb asked how long it might be before this type of technology became available given many arbitrations are still conducted entirely on paper. Fabio’s view was that it would take time but the pace of technological innovation in arbitration circles was quickening.
The second panel was chaired by John Tackaberry QC FCIArb and introduced a wide ranging discussion from panellists from Ioannis Glinavos referred to a feature of the use of arbitration in Greece (and elsewhere he suggested) using arbitration to overcome the institutional deficiencies of the State such as backlogged courts and under-resourced court system. Issues which were not unknown to affect civil justice in England and Wales.
Stuart Boyarsky tackled the issues arising from the confidentiality of arbitral process, what is confidential and when confidential and in which jurisdictions confidentiality is express or implied (the latter being the case in England and Wales). His view was that in some States such as Cameroon, Gambia, Canada and Mauritius confidentiality is very important. Yet in 90% of treaties there is no confidentiality clause and the IBA’s guidelines advise that if parties desire confidentiality that should be expressly provided in the agreement to arbitrate. In other arbitration schemes there is confidentiality yet some orders are published and others not. The great strengths of arbitration, Stuart argued, are: relative low cost, speed and confidentiality. The issue of confidentiality needed to be resolved on a consistent basis in the near future.
Nadya Berova was another of the second panel speakers and drew attention to the explosion of third party funding which is being seen yet some jurisdictions not permitted. In such circumstances issues arose, she explained, about how funders engaged with the funded cases and their representatives and how professional integrity could be maintained in that relationship. Funding had become a big feature of the arbitration market and was, she believed, likely to become more important in the near future making an understanding of this issue all the more important.
The venue and reception afterwards were excellent. Well done to all concerned at both UCL and CIArb for providing one of the most thought-provoking evenings of the year. If you do not have the book – contact CIArb for your copy - it provides real insights about the direction of travel for international arbitration during the next 20 years.
Tony N Guise
Tony is the Director of DisputesEfiling.com Limited the provider of online ADR platforms and a Past President of the London Solicitors Litigation Association.