PANEL I: Making International Arbitration Fit for the Digital Age
Moderator: Mr Sam Brown (Clifford Chance, Senior Associate)
SPEAKERS
Dr Sara Hourani
Middlesex University London
Senior Lecturer in Law
Mr Rupert Reece
Gide
Partner
Mr Leith Ben Ammar
Greenberg Traurig
Of Counsel
Mr William George
Kleros
Cryptoeconomics Researcher
First of all, it was stated by the speakers that the headline includes different subjects from e- commerce platforms (Online Dispute Resolution (ODR)) to remote hearings also along with new technologies (such as blockchain and AI).
Furthermore, during the panel, self-executing smart contracts were described as automated commercial agreements that are executed contract without human interaction by transferring digital assets, updating accounts etc. and a couple of examples were given, such as Kleros and government backed UKJT Digital Dispute Resolution Rules.
However, it was also pointed out that there are at least several potential problems with this trend. For instance, parties' right to an oral hearing or a hearing could be subject of such as problem. Moreover, subjects such as the reasoning of an arbitral award and choosing an arbitrator were named as potential problems of this trend.
Further, it was stated that AI will not be replacing lawyers anytime soon, but it will change the scope of lawyers' work. Nowadays, technology assisted reviews, summaries, chronologies, early case assessments etc are offered by the AI.
Later, the distinction between public blockchains and private blockchains was explained, with public blockchains being accessible by everyone and decentralised, however, private blockchains are accessed by the invitations and are more centralised. Additionally, the requirements for the on-chain enforcement of two options were outlined:
- First option:
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- A crypto wallet by a third-party oracle,
- The buyer to make an advance payment in that crypto wallet,
- A contract between the three which defines when and how the third-party oracle enforces the award on the wallet.
- Second Option:
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- The identity of the buyer and seller,
- A valid arbitration agreement between the buyer and the seller,
- A valid award under the New York Convention.
With regards to the comparison of Kleros to traditional ODR, it was claimed that:
- Kleros is faster and cheaper.
- Information is open where the traditional ODR is confidential.
- Arbitrators have financial interests whereas in traditional ODR the arbitrators do not have financial interests.
PANEL II: Investment Arbitration and Energy Transition
Moderator: Mr Javier Echeverri (Wordstone Dispute Resolution, Senior Associate)
SPEAKERS
Ms Alice Osman
Arnold &Porter
Senior Associate
Mr Alexander Leventhal
Quinn Emanuel
Paris Partner
Ms Emilie Gonin
Brick Court Chambers
Barrister
Ms Ceyda Knoebel
Gibson Dunn
Of Counsel
ISDS received criticism from time to time, especially about transparency, and nowadays, public health and environmental concerns. It was pointed out that tension generally arises when it comes to comparing the states' right to regulate in accordance with the public interest, such as public health and securities, to the ISDS. A great example of this is Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7. In addition, sometimes human rights and environmental obligations are used as a way to avoid obligations against the investor. Although, tribunals are careful about human rights and environmental obligations defences. It is generally accepted that states should be able to show that the measures were taken in order to comply with the human rights obligations.
Also, sometimes, it is possible for third parties to bring human rights obligations rather than states, for example, Italy did not invoke human rights obligation in the Rockhopper case. Even though counterclaims against investors by the states or activists are also possible, only two counterclaims were successful until now:
- Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5
- Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26
Also, with regard to the obligations regarding human rights and the environment, on 29 March 2023, the United Nations General Assembly (UNGA) adopted a resolution requesting an advisory opinion from the International Court of Justice (ICJ) on the obligations of States with respect to climate change.
European Commission proposed to withdraw from the ECT after a long list of member states withdrew or proposed to withdraw from the ECT during the last couple of years. However, it was pointed out that even though one of the reasons of the EU's intention to withdraw was ECT's incompatibility with the obligations of the states under the Paris Agreement, most of the cases submitted under ECT were regarding renewable energies.
PANEL III: Access to Justice and Costs of Arbitration
Moderator: Ms Alina Papanastasiou (Three Crowns, Associate)
SPEAKERS
Dr Crina Baltag
Stockholm University
Associate Professor in International Arbitration
Ms Ayse Yazir Acii
Bench Walk Advisors
Global Head of Origination
Mr Ashkhan Candey
CANDEY
Managing Partner
Mr Richard Trinick
Three Crowns
Counsel
Mr Kartik Sharma
CANDEY
Partner
The panel started by stating that the concept of 'access to justice' was only brought during the 19th century, even though recoverability of the cost is one of the major concerns in arbitration nowadays, for instance, the Singapore International Arbitration Centre issued a note to suggest the arbitrators to take costs into account. Furthermore, it was stated by panellists that the seat of arbitration is one of the most important aspects to consider regarding the costs and approaching the disputes commercially can make the clients find you more relatable. Some aspects of the dispute, such as the amount of documents that need to be reviewed and the amount of money in dispute may affect the cost of the arbitration.
PANEL IV: Striving for 'Perfect' Arbitration Legislation
Moderator: Ms Srishti Jain (Keidan Harrison, Managing Associate)
SPEAKERS
Ms Hannah Ambrose
Herbert Smith Freehills
Partner
Dr Mladen Stojiljkovic
Nater Dallafior
Partner
Mr Maximilian Bülau
Hengeler Mueller
Partner
The proposed English Arbitration Act provides some advantages but of course, also comes with aspects that are widely debated. For instance, Swiss law does not provide a two-step system whereas the proposed English Arbitration Act provides that the law governing law of the arbitration agreement will be the law of the seat unless the parties expressly agree on another law. Swiss law provides that the arbitration agreement is valid under whether the law governing the contract, the law of the seat, or the law expressly stated.
The proposed English Arbitration Act also aims to regulate the topic of disclosure by the arbitrators. This topic has been the subject of some interesting decisions, such as Hayat v. Radisson Hotels where it was stated the fact that the arbitrator failed to disclose something that should have been does not necessarily mean that the arbitrator is biased.
KEYNOTE SPEAKER
Mr Gary Born
Chair of the International Arbitration Practice Group at Wilmer
Cutler Pickering Hale and Dorr LLP
The 9th Cambridge Arbitration Day ended with a keynote speech given by Mr Gary Born, and during his speech, Mr Gary Born pointed out recent developments via different decisions with regard to key points on arbitral proceedings.
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