CIArb sat down with Phillip Ashley and Richard Bamforth of CMS in London and Lakshanthi Fernando of CMS in Singapore, 2 years after the historic merger with Nabarro and Olswang. CMS is one of CIArb's distinguished Corporate Members. Interviewers talked about the opportunities created by the merger, affiliation with CIArb through Corporate Membership and firm's support for the ICCA 2020.
1. First of all, a warm welcome. What prompted this affiliation with the Chartered Institute of Arbitrators and what hopes do you have for the relationship moving forward?
RB - The international reach and size of our law firm has increased significantly following the three-way merger between CMS Cameron McKenna, Nabarro and Olswang in 2017. By expanding our international presence, we are matching CIArb's global reach and its international network of Branches and Members. CMS Consultant Tim Hardy (FCIArb) chairs CIArb's Practice and Standard Committee and was a leading supporter of CMS becoming more closely affiliated with CIArb.
We believe that it is important to develop the highest standards in international arbitration practice, and the CIArb Guidelines are an important step in this direction. By the same token CMS is in the process of finalising an updated version of our Guide to Arbitration containing an overview of arbitration law and practice across 45 jurisdictions spanning the Europe, the Americas Asia and the Middle East offering parties an easy to access guide to arbitration in the particular jurisdiction they operate in.
PA – I have used CIArb's Guidelines in several recent arbitrations and have noticed that arbitrators are keen to use the Guidelines themselves especially in areas with only a few established rules available, for example security for costs where the Guidelines serve as a valuable guiding authority.
Recently I was in Angola with the British embassy to promote arbitration and the rule of law in this country. I see this as an example of an initiative that can be enhanced through affiliation with CIArb.
LF - From a Singapore, and wider Asian, perspective, the CIArb Guidelines offer a very practical resource when it comes to navigating some of the issues that arise in institutional and in particular, ad hoc arbitrations that we often see in the region. I also note CIArb’s increasing profile in emerging markets such as Sri Lanka, where we are actively involved, and presents more opportunities to further develop our affiliation.
2. Could you talk about the challenges and opportunities involved in the partnership, especially given the stature of the firm?
RB – Each of the three legacy firms had independently strong arbitration practices, and the merger has resulted in CMS being catapulted into the exclusive group of global arbitration leaders as recognised by GAR 30. The effect of this greater strength and broader expertise is that clients have more confidence in our arbitration capabilities, as evidenced by the increase in the size and scale of arbitration cases on which we are being instructed.
Our increased size and enhanced reputation have also allowed us to attract top arbitration talent to the firm. People want to come and work with us. As a group of arbitration practitioners, we get on very well; we enjoy spending time together and enjoy exchanging views and discussing current developments in the market.
The merger has led to many exciting opportunities, allowing practitioners from an ever-increasing number of jurisdictions within the firm to exchange ideas and experiences with colleagues from other jurisdictions. As a firm we have seen expansion in the Latin American market, our CEE arbitration practice is already pre-eminent in the region and we have a significant presence in the Middle East.
PA – Prior to the merger, our energy arbitration practice at legacy firm CMS Cameron McKenna already had a strong and significant international presence, but the merger has allowed us to significantly increase our Middle East offering on the ground with a growing disputes practice there. Our office in Dubai is now more than twice the size it was.
Probably the biggest change comes in Asia with Lakshanthi and her office in Singapore where legacy CMS Cameron McKenna didn't have an office, so from an energy perceptive it was a gap now plugged as Singapore is a hub for energy arbitration.
LF - The merger has provided us with a unique combination of sector strengths, geographical coverage and enhanced bench strength. In Asia, we have offices in Hong Kong, Beijing, Shanghai and of course Singapore – all strategically important jurisdictions for most of our clients, with Singapore and Hong Kong, for example, being popular ‘seats’ and venues for cross-border dispute resolution.
3. Given that we have global representation present here today, what are the hopes of CMS for ICCA 2020 and what role do you intend to play in Edinburgh?
RB - We are a main sponsor for ICCA 2020 and our involvement reflects not only our commitment and belief in ICCA and its success but also in the promotion of international arbitration in Scotland. ICCA gives us a great opportunity to focus on our sizeable Scottish disputes practice which features arbitration practitioners in Glasgow, Aberdeen and Edinburgh. We are investing time as well as money in ICCA 2020 to maximise its success. Our Scottish colleagues are involved with the planning of the main ICCA event and we are confident that ICCA 2020 will attract arbitration practitioners from across many international jurisdictions and provide a huge boost for arbitration in Scotland, which is important to us as a Firm.
PA - A lot of people in the energy and construction industry are incredibly excited about ICCA 2020. Our offering in this area is enormous with lots of tier one practices to our name. Everybody is hugely excited about the event in Edinburgh and being able to showcase some of our expertise there.
4. Let’s finish with some general thoughts around the field of Arbitration. What are the significant issues currently and how do you see the progression of CMS with regard to its development?
RB – We have noticed an increase in activity in relation to investment treaty arbitration across the firm, which seems to reflect the increasingly international nature of our business. In addition, the availability of litigation funding is playing an important role in whetting clients’ appetites to proceed with disputes, whether litigation or arbitration, and in my opinion this trend will continue.
Transparency in international arbitration will become an increasingly important issue in the next ten years. One of the traditional selling points of arbitration has been its confidentiality, but this brings with it claims of a lack of transparency. Whenever there is a perceived lack of transparency, there is potential to raise several different issues such as fairness of the process and the effect of excluding the wider public from the proceedings. We are starting to see the beginnings of that trend in investment arbitration disputes, where the suitability of arbitration to preside over sovereign states is being questioned.
PA - I wouldn't be surprised to see cases being heard in the courts which relate directly or indirectly to the issue of transparency of arbitral proceedings. I think it is an area to watch both for CIArb and CMS as it will definitely have impact on our clients.
RB - Diversity is something we are all aware of, and as a firm we are dedicated to ensuring and promoting diversity in arbitration. There are many initiatives being undertaken by the arbitral institutions in terms of gender diversity, but I still believe that there is more to be done here and in other areas.
LF - I would echo Richard – diversity is also important to us and important to our clients. There is a greater awareness of the ‘diversity deficit’ in international arbitration and an acknowledgment that there is more that can be done, for instance via the party or institutional appointment process, to improve the diversity of the counsel we engage and the tribunals we have. Representation and adjudication that includes a variety of perspectives and a range of experiences is a good thing. There is a business case for diversity and the world of international arbitration is no exception.
PA - It is usually the issue with party-appointed arbitrators. From my experience when a tribunal is being appointed by arbitral institutions, the result is more diverse – this is something I experienced in one of my arbitrations which involved a very prominent all-female panel. This is more difficult to achieve with party-appointed arbitrations.
RB - To finish with: Brexit. The current biggest issue with Brexit is uncertainty, which clients and users of dispute resolution services do not like. The practice of arbitration ought not to be affected as the UK remains party to the NY Convention and the courts remain very supportive of arbitration. There is an argument that because of the uncertainty of the effect of Brexit on the regime surrounding the enforcement of court judgements, arbitration will have a slight advantage over litigation because of its global enforceability. However, uncertainty and a threat that people will move their businesses away from this jurisdiction could still reduce arbitration levels of activity.
That was why London International Disputes Week, of which we are a Founding Member, was a great initiative to promote London's place in the international disputes world, with arbitration given equal prominence.