11 Nov 2019
By Laura West MCIArb, Chair of the CIArb YMG Conference Planning Subcommittee and Associate at CMS
On 7 and 8 November, the CIArb YMG Global Steering Committee held its annual conference in Edinburgh on the theme “how to make arbitration better”. We know that the flexibility, privacy and enforceability of arbitral awards mean that arbitration has a lot to commend itself as a dispute resolution option. However, it is also often criticised for being too slow, too expensive or too similar to the court process. Through a series of panel discussions, delegates discussed a myriad of ways that the arbitral process could respond and adapt to challenges, threats and criticisms to remain useful and effective for users.
The evening before the conference began, delegates were welcomed to Edinburgh with a traditional taste of Scotland through a guided whisky tasting led by the Edinburgh Whisky Blog and kindly sponsored by the CIArb Scottish Branch. Dr Chris White, founder and editor of the blog explained the distillation process from malting, mashing, fermentation and distillation to the final maturation process. Delegates were then invited to sample a range of Scottish single malts from Speyside to the Isles. The evening was a great success allowing attendees to network in a less formal environment ahead of the main conference.
Delegates reconvened early the following morning for the start of the conference. Following a welcome address from Laura West MCIArb (Chair of the CIArb YMG Conference Planning Subcommittee and Associate at CMS), we were lucky enough to be joined by Thomas D. Halket C.Arb FCIArb and current President of CIArb. Tom set the scene through outlining the main aspects of the theme for his year in office - "Meeting Today’s Challenges to Prepare for the Future" focusing on several areas of concern, namely diversity, transparency, professional education and the use of technology, and how the Institute was looking to meet these challenges.
The keynote address was delivered by Lindy Patterson QC FCIArb, an arbitrator, adjudicator and dispute board member operating out of 39 Essex Chambers in London. Lindy offered insight as to what could improve the arbitral process from her perspective as dispute resolver but warning that what constitutes an improvement is always in the eye of the beholder – claimants, respondents, party representatives, experts and tribunal members are all likely to have slightly differing views. For change to make impact requires the buy-in of all stakeholders.
The first panel was organised in conjunction with Young ICCA and chaired by Rahul Donde ACIArb, Counsel at Lévy Kaufmann-Kohler on the theme of “how to make arbitration procedure better”. Rahul was joined by panellists Fiona Cameron (Partner at Gillespie Macandrew); Catherine A. Kunz (Counsel at Lalive) and Mélanie Riofrio (Associate at Armesto & Asociados Árbitro). Fiona kicked off discussions by looking at the success of mediation, the introduction of the Singapore Convention on Mediation and what arbitration could look to take from the mediation process. Catherine suggested potential ways to limit often burdensome and costly document disclosure processes through more considered analysis of where the burden of proof lies or by adopting a “pay-as-you-go” approach. Mélanie concluded by looking at efficiencies in arbitrator selection and her own firm’s alternative to the traditional Redfern schedule.
Our second panel, chaired by Peter Anagnostou ACIArb (Senior Associate at DLA Piper) and Laura West MCIArb considered “how to make construction arbitration better”. The panel was deliberately selected to provide three different perspectives of users of the arbitral process from the construction sector. Callum Murray, CEO of Amiqus (an Edinburgh based tech start-up) - started with his experiences as a user of the arbitration process as well as the steps Amiqus are now taking to improve and reimagine the dispute resolution process through technology. Marily Paralika ACIArb (Partner at Fieldfisher) followed with her experience as a party representative in proceedings covering steps taken to prevent disputes as well as how to improve the arbitral process if resolution is not possible discussing practical improvements and consideration of the latest ICC report on construction arbitration. The session finished with Owain Evans (Chartered Structural and Civil Engineer at William J Marshall & Partners) outlined his experience as an independent expert in construction arbitration and key steps taken in the process that could make the taking of expert evidence more efficient/useful.
Following a short lunch break we resumed with a panel on Investment Treaty Arbitration led by Athina Fouchard MCIArb (Counsel at Eversheds Sutherland) and Sebastiano Nessi MCIArb (Attorney at Schellenberg Wittmer). They were joined by Saadia Bhatty MCIArb (attorney at Gide Loyrette Nouel), Jaroslav Kudrna (Legal Advisor at the Ministry of Finance of the Czech Republic) and Christel Tham (Legal Counsel at the Permanent Court of Arbitration). Athina and Sebastiano expertly chaired the discussion among key stakeholders in the Investment Arbitration sphere discussing current topical issues including ISDS reforms proposed by the UNCITRAL working group last month as well as the implications and potential new landscape for intra-EU investor claims following the landmark ruling in Achmea.
The final session of the day considered whether arbitration was suitable for small claims. Sebastiano Nessi MCIArb and Rainbow Willard ACIArb (Associate at Chaffetz Lindsey) chaired this panel with speakers Meredith Craven (Associate at White & Case), Naomi Briercliffe (Senior Associate at Allen & Overy) and Hafez Virjee (President of Delos Dispute Resolution). Discussion started by considering whether institutions approach of offering expedited processes for small claims (sometimes with a reduction in fees and sometimes not) was appropriate or indeed the most efficient way to deal with smaller value claims that were not necessarily less complicated than those of higher value. The panel then turned to ways in which lawyers and party representatives could adapt practices to manage claims more cost effectively.
The conference was rounded off with a vote of thanks from CIArb YMG Global Chair, Ronan O’Reilly MCIArb, an Associate at White & Case followed by drinks and a gala dinner at the Kimpton, Charlotte Square, where some impromptu bagpipers played to welcome guests!
We hope delegates enjoyed the conference and will join us again next year.
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