Introductory remarks

The first chairman of the ICC Commission on Arbitration was a gentleman named Owen Young. He was also the first General Counsel of General Electric. I moved in-house with GE in 1999, and I am today the Vice-President of Litigation for a company called Baker Hughes, a company in which GE is an important shareholder. Thus, I feel a special connection being with you today.

I know little about Mr. Young himself, but I do know something about the founders of ICC, which was created to fill a vacuum after WWI. Calling themselves ‘the merchants of peace’, ICC’s founders sought to address a world where, from the ICC website, ‘no world system of rules governed trade, investment, finance or commercial relations’.

They created the ICC Constitution in 1920. The ICC constitution empowered its Executive Board to create ‘commissions’ to carry out fundamental tasks for the ICC’s mission of fostering peace through economic prosperity, and it immediately created the ICC Commission on Arbitration that very same year.¹ One of the first things the Commission on Arbitration did was to create the ICC Rules of Arbitration in 1922, and then it created the ICC Court in 1923.

In the past 100 years, the Commission’s influence on international dispute resolution has been remarkable, and much of this influence has been achieved by shaping the ICC’s own dispute resolution services. Many changes came almost immediately, in response to crises and changes in the world, in the product that was offered, what it cost, and how it was conducted.

First, perhaps the most dramatic change in ICC’s early period was its main product of resolving disputes. ICC went from being an institution that initially favored mediation and engaged in little arbitration to one that leaned heavily on arbitration, almost to the neglect of mediation. What prompted this was the global economic crisis in the 1930’s, which created a need by parties for ‘final awards’.

Second, arbitrating became a service for a fee. Under ICC’s original 1922 Rules of Arbitration, arbitrating was a service provided ‘gratuitously’. But demand grew, and in order to ensure it would provide a quality service, the Commission adopted a new set of rules in 1934 to permit the Court to fix fees for arbitrators. In 1950, the Commission decided this should be 1% of the amounts in dispute.

Third, the method for appointing arbitrators also evolved rapidly. In the 1920’s and 1930’s, the Court appointed sole arbitrators, without consulting the parties. An ICC document of 1935 explained that party-appointed arbitrators ‘add nothing’.² But as use of arbitration grew, this view shifted, and by the 1950s, the Commission adopted arbitration rules that codified the practice of three-arbitrator tribunals with two party-appointed co-arbitrators.

Therefore, we can only commend the Commission for its agility in adapting dispute resolution to the changing needs of parties and the market in its early years.

Quo vadis?

Please allow me to now skip over all the many accomplishments and major initiatives of the ICC Commission on Arbitration and ADR in recent decades, because I have been asked to speak on the topic of ‘quo vadis?’, where do you go from here?

In asking where to go, we should consider who the Commission is today and what it represents to ICC and the world of dispute resolution.

After 100 years, the Commission has created an incredible asset for ICC and for the world of dispute resolution: its membership. It has 718 members (a total 908 including members of the Court) and all of them – you – are leaders and experts in the field of dispute resolution.

In addition, the Commission is able to draw on the views of the ICC's National Committees on matters of dispute resolution, the Commission plays a powerful role in shaping global dispute resolution and helping the global community work together better.

The Commission’s membership

If we look around the world today, we could ask where is there a high level of interest in international arbitration and mediation? The answer is, everywhere. Take the readership of the Kluwer Arbitration Blog, for example. The blog is free, accessible to anyone, and has a broad global reach and authorship, as illustrated by their most recent data.³

Readership of the Kluwer Arbitration

As you can see, the only place where there appears to be no interest at all is in the middle of the oceans. The biggest points of readership are North America, especially the US, the UK, India, followed by significant parts of Asia, Brazil, and France and other parts of Europe.

By contrast, when looking at the Commission’s membership, you will note that it is more concentrated in certain areas than distributed around the world.

Geographical breakdown of ICC Commission’s membership

Therefore, in moving forward, the Commission may want to consider whether its membership has the right level of geographic diversity.

For a global institution, which the ICC is, geography is just one type of diversity to consider. Another is to ask whether you are representative of the stakeholders in dispute resolution? This has multiple dimensions.

For example, when looking at gender diversity, the current membership is the following:

While the numbers are not even close to parity, I am told that the balance is much greater today than 20 years ago when the number of women members could be counted on one person’s hands. So certainly, the Commission could continue to build on the progress it has been making.

Further, of the 908 Commission members, most are partners or associates of law firms, and then there are some independent arbitrators, and a scattering of professors/academics, most of whom are also arbitrators. Out of the total, only 24 are in-house lawyers like me, which is 2.6% of the membership.

So in asking ‘quo vadis?’ I would challenge you to consider whether the membership could be more representative of the stakeholders in international dispute resolution, and whether this could enhance the effectiveness of this body. Another way to put this is to ask, could you adapt more quickly and effectively to changing markets and the needs of users if more than 2.6% of members are the ones who pay for the services and bear the consequences of the outcomes?

The Commission’s role in global dispute resolution

The role the Commission plays shaping dispute resolution through its authoritative reports is unquestioned. But your highly deliberative process, which is known for the excellent quality of work, is not especially fast.

The pace of the Commission’s work is due to the need for a mandate from the Steering Committee, the formation of a task force, the gathering of members twice a year, the issuance of a final report, first approved by the Commission itself, and subsequently approved by the ICC Executive Board. Under the best of circumstances, this will take two years, such as for the Report on ‘Resolving Climate Change Related Disputes through Arbitration and ADR’,⁴ and three to four years for most Commission reports. Is this pace adequate for the Commission’s work in today’s world? There is a risk that before a report is issued, the market will have changed, the needs will have been met by others, or the ICC Court will have had to act quickly to address an urgent need without the benefit of the Commission’s collective wisdom. So, in parallel to asking ‘quo vadis’, we might also ask, if my attempt at Latin is correct, ‘quo modo vadis’, or, how are you going to get there once you have decided where you want to go.

Here are two hypothetical examples that the Commission might face over the next two years that are not beyond the realm of possibility:

1. July 2021: a global financial crisis hits after governments have poured much of their GDP into an economic response to the Coronavirus. With a significant portion of cash/liquidity is tied up in disputes, governments launch partner programs with arbitration and mediation institutions around the world to rapidly issue Final Awards within weeks and months so that capital can be put back into circulation.
2. July 2022: a competing institution releases a form of Artificial Intelligence that applies the reasoning from past arbitral awards to the facts of current disputes. It is predictive arbitration. It becomes hugely popular because the AI arbitrator is provided gratuitously as part of the service, just in time for the 100th anniversary of the ICC Rules of 1922 that did the same with human arbitrators (offered their services for free).

How should ICC Disputes Resolutions Services respond to these situations? One answer might be that it should not, on the view that the Commission is not a fire brigade. Further, unlike the era of the 1920’s and 1930’s when the Commission and the ICC Court were created, today there is no evident "vacuum" in international trade and dispute resolution. There are many institutions that will attempt to address a need in the market, regardless of what steps ICC takes (or does not take).

Further, not responding immediately is not the same as doing nothing. Dialogue and deliberation among members of a body such as this one may be more important than the end result. In moments of rapid change, there may be an important role for a body that can pause, take a step back, and recommend a pivot, where pivoting makes sense, or to counsel against change for the sake of changing.

But not reacting immediately – not being a fire brigade – should be a conscious choice, not the unintended consequence of the Commission’s working methods. And to be candid, it seems a shame to accept that the Commission will often arrive after the fires have been extinguished, rather than leveraging the wisdom of its global leaders in dispute resolution during moments of crisis and rapid change.

Agility

If the Commission were to act with more agility, how might it achieve this?

One idea might be for the ICC Court or Secretariat to reach out to the Commission for direct cooperation in moments of need. For example, when the ICC Dispute Resolution Services faces a major challenge, they might ask: ‘How could the Commission help here?’; ‘What does the Commission know?’; ‘Who are the experts and key stakeholders we should reach out to?’.

Another possibility might be for the Commission to empower itself to engage more rapidly in critical moments of need, either through its Steering Committee or by creating a standing body to fill this role. In this way, the Commission could bring its collective intelligence to bear on new or emerging dispute resolution challenges around the world.

Conclusion

When he presided over the Commission at its inception 100 years ago, my former colleague, Owen Young, faced challenges not so different from those we are facing today. A global pandemic had raged from 1918 to 1920, with a devasting human impact. There were many uncertainties about the future, and it was not long before there was a massive global economic crisis that demanded very different methods of resolving conflict. In the face of this uncertainty, the Commission created a form of dispute resolution that, through continuous improvement, would become the leading means of resolving international commercial disputes, and in doing that, promoting peace through prosperity. So, to conclude, I give back to you the question, ‘quo vadis?’. If ever there was a moment for the Commission to create – or re-create itself – it seems that moment is now.

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