15 February 2022
L-R: Michael Caddick, Melissa McLaren, Arun Visweswaran, Ann Ryan Robertson, Celia- Johnson Morgan, Peter Anagnostou, Laura West and Kyle Louw
On 15 November 2021, the CIArb UAE YMG Committee held the CIArb YMG annual global conference in Dubai for the very first time.
The theme of the conference was “Arbitration in a Changing World”, which was apt at this pivotal juncture in the world grappling with the changes brought about by the global pandemic. The users of arbitration have constantly strived to innovate and adapt arbitration to the wider changes in the world and therefore the conference was an opportune moment to look back at the evolution of arbitration and look to the changes that are in store for the future – be it from the perspective of climate change, technology or ways to further promote diversity and inclusion.
Speaking of change, we at the CIArb YMG decided to host the conference in a hybrid format (with Covid 19 protocols) to allow both in-person and virtual attendance – a first of its kind for the annual conference. Such a hybrid format was significant as we managed to ensure the conference had speakers from across the globe speaking to a global audience. There were delegates from five continents attending throughout the day – something that may have been difficult even in normal times.
The conference started with a welcome address from Arun Visweswaran who is the Chair of the CIArb UAE YMG Committee and Senior Associate at Clifford Chance. Arun set the scene for the conference and invited Ann Ryan Robertson C.Arb FCIArb, the then President of the CIArb and Partner at Locke Lord LLP (Texas, USA), to deliver the keynote address.
Ann's fascinating keynote address traversed the evolution of arbitration from the Alabama Claims in the US in the 19th century to many the watershed moments since then, including the introduction of the New York Convention. Ann lauded how the arbitration community had rallied in reaction to the Covid-19 pandemic and identified some of the most significant changes. Ann cited technological advances in virtual ways of working, which have enabled versatility, cost savings, reduced carbon emissions, greater diversity, and increased accessibility. Ann concluded by highlighting that these were key points for the arbitration community to consider moving forward.
Keynote speech by Ann Ryan Robertson
The first session of the day was an in-person panel discussion moderated by Arun Visweswaran ACIArb (Senior Associate at Clifford Chance, Dubai). Arun was joined by panelists Lara Hammoud (Senior Legal Counsel at ADNOC and Arbitrator, Abu Dhabi), Paul Coates (Partner at Clifford Chance, Dubai), Tom Montagu-Smith QC (Barrister, 3 Verulam Buildings, UK), and Conrad Bromley (Managing Director and Quantum Expert at Secretariat, Dubai). The diverse panel engaged in a thought provoking discussion on the ways in which arbitration had evolved from the perspective of an arbitrator, clients, lawyers and experts.
Lara commenced the panel discussion by identifying how arbitration rules and institutions changed in the last decade and noted that arbitral institutions, through procedural rules, had continued to innovate with remedies such as emergency arbitrators, provided tribunals with more power, and enhanced the fairness of the arbitration process. Tom then discussed the developments in arbitration laws in the last decade and discussed various changes in case law, the regional adoption of arbitration laws based on the UNICTRAL model law, and the creation of offshore dispute resolution centers in emerging regions. Paul spoke about the very important topic of arbitrator selection and highlighted some of the issues posed by conflicts and outlined the efforts taken by arbitral institutions and practitioners alike to increase the arbitrator pool and thereby diversity. Conrad discussed the importance of industry guidance for experts, citing the Academy of Experts guidance as an example to be used in the preparation of joint expert witness statements. Conrad also highlighted the importance of advancements in technology such as file management software, cloud working, and a (welcome) shift away from hard copies – particularly large physical data storage rooms!
L-R: Tom Montagu-Smith QC, Conrad Bromley, Lara Hammoud, Paul Coates and Arun Visweswaran
Session 2 – Debate on whether virtual hearings should be the default mode of hearings in the post-pandemic world?
Following an enriching first session discussing the evolution of arbitration, the delegates were primed for an exciting debate on a more recent development – virtual hearings. The debate was moderated by Ian Greenhough MCIArb (Managing Director at Kroll Expert Services, Dubai). The speakers for the motion were Sara Koleilat-Aranjo (Partner at Al Tamimi & Co, Abu Dhabi) and Alex Clements (Director at Bond Solon, UK), and the speakers against the motion were Zoe O’Sullivan QC (Barrister, Serle Court, UK) and Peter Anagnostou MCIArb (Senior Associate at DLA Piper, Dubai).
Alex argued that virtual hearings should be considered the default option as they enable increased efficiency, time savings, cost savings, environmental advantages, global accessibility, and offer diversity benefits. Alex contended that virtual hearings benefitted expert performance and offered greater flexibility. Against the motion, Zoe highlighted the “human factor” limitations of virtual hearings, such as the inability to interpret body language, and read verbal cues, thereby restricting the tribunal’s ability to assess a witness. Zoe also discussed tribunal and counsel interaction restraints, scheduling challenges, and coordination aspects. In contrast, Sara discussed how new technology provides a sufficient solution and has allowed for arbitration to be more affordable. Sara highlighted that virtual hearings enhance the ability to assess a witness, enable flexibility, reduce fatigue and support the inclusion of participants throughout the world (and even quoted from a Jamiroquai number – virtual insanity!). Peter concluded by emphasising the importance of a flexible approach and identifying that there is room for both physical and virtual hearings. Peter reasoned that virtual hearings should not be the ‘default’ method, given that there is no guarantee that all parties will have the same level of platform access, which could also lead to added costs. Both sides made excellent points which were evidenced by the narrow margin of the audience poll with a very slight preference for virtual hearings being a default mode of hearings.
L-R: Alex Clements, Sara Koleilat-Aranjo, Ian Greenhough, Zoe O’Sullivan QC and Peter Anagnostou
Session 3 – Virtual panel discussion on how will arbitration continue to adapt to the changing world?
After lunch, the delegates joined the second panel discussion of the day which was conducted globally via a virtual platform and streamed to both an online audience and to the physical audience in Dubai.
The discussion was moderated by Prof. Dr. Mohamed Abdel Wahab (Founding Partner and Head of International Arbitration, Construction and Energy Groups at Zulficar & Partners Law Firm, Egypt) who was in the conference room in Dubai. Prof. Dr. Mohamed was joined by Karl Hennessee (Head of Litigation at Airbus, Paris), Lucy Greenwood (Principal at Greenwood Arbitration, UK), Mercy Okiro (Advocate of the High Court of Kenya) and Sneha Ashtikar (Head of Marketing at Jus Mundi, Paris) who presented via the virtual platform.
Lucy commenced the discussion by citing various cases where major climate decisions have taken place in the investment treaty world – which evidence the real threats posed by climate change. She considered the significant carbon footprint of international arbitration and advocated that everything needs to be seen through an environmental lens. Lucy discussed her participation in the campaign for greener arbitration and outlined the actions and protocols that have been implemented so far. Sneha focused on new technologies and discussed the introduction of virtual hearings, new topic areas such as crypto, green technology in computing, and how tech companies such as Jus Mundi were constantly working to enhance the efficiency of the arbitration processes. Mercy then addressed the topic of diversity and how the pandemic has indirectly provided opportunities to global participants through technology. Mercy discussed the wider meaning of diversity beyond tokenism and passionately advocated on how diversity can be improved, and opportunities broadened – with the need being for more action and fewer words. Karl gave the valuable perspective of a client and proceeded to highlight how a diverse and inclusive tribunal could achieve holistic results and how they are more likely to lead to the resolution of disputes which is the operative term in the word dispute resolution. Karl encouraged counsel to always consider diversity as one of the key factors when appointing tribunals. Karl also shared his thoughts on the role of technology and green considerations, whilst emphasising that the dispute resolution goals of arbitration must be maintained.
We were treated to a very exciting and passionate discussion on these issues that will shape the future of arbitration leaving no scope for any post-lunch lull amidst the delegates!
L-R (top row): Karl Hennessee, Prof. Dr. Mohamed Abdel Wahab and Sneha Ashtikar; L-R (middle row): Lucy Greenwood and Mercy Okiro
Session 4 – Debate on the online identity of the arbitration practitioner is a help and not a hinderance?
After the afternoon break, our closing debate of the day tackled the very real and very interesting issue of whether our virtual footprints can be a boon or a bane in the practice of arbitration.
This debate was moderated by Melissa McLaren MCIArb (Senior Lawyer at Pinsent Masons, Dubai). The speakers for the motion were Seema Bono (Senior Associate at Pinsent Masons, Dubai) and Sadaff Habib(Associate at Beale & Co, Dubai), with those against comprising Hussain Hadi (Head of Publishing and Legal Technology at LexisNexis Middle East, Dubai) and Shane Jury (Partner at Addleshaw Goddard, Dubai).
Sadaff commenced the debate in support of having an online identity and stating the advantages of interconnectivity, ease of access, and social connection. She cited positive personal experiences in relation to networking opportunities, professional development, and diversity advantages. Shane, on the other hand, debated that freedom of speech should not be unregulated and that there is a risk that personal profiles may be placed ahead of just resolution of disputes – citing various legal precedents. He emphasised that a social media presence poses a threat to an arbitrator's impartiality and not just independence. In conclusion, Shane highlighted the importance of judicial and arbitrator reticence whilst not advocating silence. Seema maintained that an online presence is critical for relationship progression, promotion of diversity, knowledge sharing, and professional upkeep with key trends. Seema suggested a prudent approach should be adopted and highlighted the importance of career progression and our online footprint. Seema identified that social media can be used to advocate for others and promote positive behaviors. To conclude, Hussain debated that arbitration practitioners should be held to a higher standard and accept conduct restrictions, as the needs of the industry should be placed above the person. Hussain agreed that social media could be a source for good but raised concerns, insofar that social platforms could not be considered a level playing field that can be relied upon by the arbitration community. Hussain highlighted the need for more guidelines to be developed moving forward. It was another closely fought debate with the audience poll marginally favoring judicial reticence over having an online presence.
L-R: Hussain Hadi, Seema Bono, Melissa McLaren, Sadaff Habib and Shane Jury
The conference was rounded off with a vote of thanks from the CIArb YMG Global Chair, Laura West MCIArb (Senior Associate at CMS, UK) who echoed the sentiments amidst the delegates that each of the sessions were thought provoking and demonstrated how arbitration has changed and will continue to change and innovate. This was followed by a much needed networking opportunity for the conference organisers, speakers, and delegates.
We’d like to thank and acknowledge the CIArb YMG UAE Branch Committee comprising Arun Visweswaran, Melissa McLaren, Sarah Pearson-Baird, Michael Caddick, Kyle Louw, Celia Johnson-Morgan, Juan Olwagen and Alex McEvoy without whose efforts the conference would not have been possible.
L-R: Peter Anagnostou, Celia Johnson-Morgan, Arun Visweswaran, Sarah Pearson-Baird, Melissa McLaren, Juan Olwagen, Michael Caddick and Kyle Louw
We would also like to extend a special thanks to our event sponsors Clifford Chance, Kroll, DLA Piper, CBBG Group and JS Held.
By: Arun Visweswaran ACIarb (CIArb UAE YMG Committee Chair and Senior Associate at Clifford Chance), Michael Caddick FCIArb (UAE YMG Committee Member and Senior Manager at Kroll) and Melissa McLaren MCIArb (CIArb UAE YMG Committee Vice Chair and Senior Lawyer at Pinsent Masons).