Forgot your password?
Please enter your email & we will send your password to you:
Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
1. It is a great honour and pleasure to contribute to this anthology for John Beechey. It has been a privilege knowing John for many years, and I have great respect for his wisdom, legal acumen and good taste.
2. Given my relatively recent appointment as Director General of the London Court of International Arbitration (LCIA), it seemed appropriate or perhaps inevitable that I would look to John's role as President of the ICC International Court of Arbitration as a source of inspiration for my contribution to this book, and in fact more generally.
3. Arbitration is an increasingly complex process with many players and stakeholders. It may be tempting for practitioners to take the view that thorny issues should be resolved by others and notably by the relevant arbitral institution. In this contribution, I will attempt to show that the reality is more nuanced and that arbitration is a multifaceted process in which all stakeholders have a role to play.
4. My contribution will focus first on certain aspects of the arbitration process which I will refer to as 'internal challenges'. Specifically, I will highlight the following four aspects: the appointment of arbitrators, the cost and duration of arbitral proceedings, the use of tribunal secretaries, and the issue of party representation and rules of conduct applicable to parties' representatives. I will explore possible solutions and identify the roles to be played by different stakeholders in dealing with these issues, which go to the heart of the arbitral process. They are also issues to which John has devoted much attention and energy.
5. I will then consider briefly some of the 'external challenges' facing arbitral institutions, and the international arbitration community more broadly. Here, too, John has contributed greatly and played an important role in focusing the discussion and seeking to consolidate input from institutions and other stakeholders. Two examples where institutions can and should play a role are, first, furthering the debate [Page174:]
on investor-state dispute settlement (ISDS) and, second, the impact of financial sanctions introduced by the United States and the European Union on arbitral institutions, especially those related to Russia imposed in response to the conflict in Ukraine.
6. As will be seen, there may be a fine line between internal and external challenges - such is the case with diversity in arbitral appointments, for example. Furthermore, not all challenges are real - some are perceived, which may complicate finding answers and solutions. Nevertheless, institutions have a responsibility and a central role to play in addressing all challenges and developing solutions. Ultimately, however, these responsibilities are shared by all stakeholders in the process, and all players have an obligation to contribute and an interest in doing so.
II. Internal challenges
7. Users of international arbitration want arbitrators who are good, independent and impartial, available and affordable. Summarizing these wishes is a feat in itself and goes to show that finding the right arbitrator is not necessarily an easy undertaking.
8. The first question to consider is from where arbitrators are to be sourced. All institutions are concerned with how best to accommodate parties when it comes to selecting suitable people who are right for the case. However, they have different systems for selecting arbitrators.
9. To varying degrees institutions rely on party nominations as the first step towards appointing a tribunal. In such circumstances, the role of the institution in the appointment process is generally confined to the approval and formal appointment of the nominees. Absent party nomination, institutions will select and appoint arbitrators directly. A key responsibility of institutions is deciding on the default mechanism - party nomination or direct appointment - and educating users accordingly.
10. Where institutions select and appoint arbitrators directly, some will have lists or formal rosters which, to a greater or lesser extent, they are bound by. For example, for some of its appointments, the International Centre for Settlement of Investment Disputes (ICSID) is confined to individuals from the ICSID Panel of Arbitrators.
11. In contrast, other institutions will have a centralized pool of names from which they select arbitral candidates. The LCIA, for example, rather than relying on a roster or list of individuals, has a large, open-ended pool of neutrals from which arbitrators can be selected in cases where the LCIA Court is to make a selection directly (which is the default under the LCIA Rules). However, the LCIA Court is not confined to this database in its selection of arbitral candidates.
12. Where the ICC Court is called upon to select an arbitrator, it will make the appointment upon the proposal of an ICC National Committee or Group. The ICC system of calling on National Committees or Groups in the selection process takes advantage of local expertise and, in this way, may result in the appointment of arbitrators who may not appear in the centralized databases of other institutions. However, it reduces the direct control of the institution over the selection process.
13. Regardless of the precise internal system, it is only when the institution itself is selecting and appointing an arbitrator that it can significantly steer the selection process. This is especially important where users choose arbitration in order to have arbitrators with a particular profile and, in particular, where they have - not always realistic - hopes of achieving a spread of expertise and experience within the tribunal. It may be difficult to meet these expectations unless an institution is appointing an entire tribunal, and can 'mix and match' individuals appropriate for the case at hand.
14. The extent to which parties value the right to nominate differs, and is partly culturally determined. Institutions vary widely in respect of the numbers of direct appointments they make. The LCIA Court, for example, directly selects and appoints arbitrators in approximately 50% of cases. This is a relatively high proportion, which is obviously related to the default system under the LCIA Rules.
15. John is to be commended on the changes regarding direct appointments introduced in the 2012 ICC Rules of Arbitration, which have given the ICC Court extended scope to make appointments directly, while respecting the principle of party nomination which underlies the ICC system. Under the 2012 ICC Rules, the ICC Court may directly appoint any person whom it regards as suitable if it does not accept the proposal made by a National Committee or Group, or if the National Committee or Group fails to make the requested proposal within the relevant time period. Further, under the Rules, the ICC Court may also make a direct appointment without going through a National Committee or Group at all where (i) one or more parties is a state or claims to be a state entity, (ii) the ICC Court considers that it would be appropriate to appoint an arbitrator from a country or territory where there is no ICC National Committee or Group, or (iii) the President certifies to the ICC Court that circumstances exist which make a direct appointment necessary and appropriate.
16. When institutions have the opportunity to do so, they should address policy issues in respect of, and should seek to become actively involved in, some areas of the appointment process. In particular, institutions should take active steps to improve diversity in the composition of arbitral tribunals, and indeed enlarge the pool of arbitral candidates.
17. Diversity has, very rightly, been at the forefront of discussions held in different fora and at many recent international events. Diversity in international arbitration must remain a priority for the coming years, as it is essential to the longevity and legitimacy of the arbitral process.
18. The current pool of players is too small, and there is a perception that the field is dominated by the 'usual suspects'. Diversity enhances the quality of the process; different perspectives lead to better decision making. The pursuit of diversity, therefore, is a challenge both to the arbitral process itself and the wider international arbitration community, and in this sense is both an internal and external challenge.
19. Moreover, institutions - more so than individual users - have an interest in maintaining a sustainable pool of arbitrators from which to appoint tribunals. Individual users simply have to find the right arbitrator for a particular case on a far less frequent basis than institutions. Institutions will need to find good arbitrators in several cases, all different, today, tomorrow and thereafter. This long-term interest requires an adequate and structurally-sustainable supply of good (potential) arbitrators, and can be achieved only by introducing fresh blood.
20. The diversity discussion is most often considered in terms of gender diversity. In this regard, it is noted that the LCIA's proportion of women appointees currently stands at 12%, which is a statistic that stands out favourably. It is still not enough, however. Selecting a goal or benchmark is not straightforward. A look at recent law school graduates suggests there is a very long way to go, as there women are in the majority, at least in some jurisdictions. Perhaps a more realistic short-term goal for the gender composition of arbitral tribunals should be that the tribunal at least reflects the gender breakdown within the law firms acting as counsel before the tribunal.
21. But we must be cautious not to oversimplify diversity; diversity is a diverse concept, and gender is just part of the discussion. Diversity in age and experience is also important. The LCIA, for example, monitors first-time appointees on LCIA cases. Additionally, diversity in culture (whether it be in respect of legal culture, language and/or nationality) is also relevant, particularly in light of the diverse make-up of parties in international commercial arbitration.
22. Institutions should consider all of these facets of diversity, and they should be transparent in the composition of their tribunals, steer the composition of tribunals where possible, and participate in conferences and discussions which address these issues.
23. Responsibility does not fall solely on the institutions, however. While institutions are arguably best placed to take the lead in improving diversity and inclusion, for instance by providing transparent statistical data, all stakeholders in arbitration can and should be involved and should assume responsibility. For example, parties and counsel can insist on the need to put forward lists of arbitrators that are diverse, and arbitrators can take diversity into account when selecting a chair. [Page177:]
It is not enough to single out the institutions as the drivers of this discussion. Achieving diversity is a challenge that requires concerted action from all stakeholders.
24. Regardless of how different institutions source and select arbitral candidates for arbitral appointments, all institutions play an important role in 'vetting' candidates. They must ensure that the arbitrators appointed are independent, impartial and available, and in so doing, regardless of how many direct appointments they make, institutions safeguard the selection process.
25. Arbitral rules do not and cannot contain 'hard and fast' rules as to what constitutes independence and impartiality. This would not be appropriate as rules cannot capture the complex and diverse nature of multicultural cases handled by international institutions. Soft law, notably the IBA Guidelines on Conflicts of Interest in International Arbitration, has developed in respect of the appointment and duties of arbitrators. Such soft law may help to define independence and impartiality or the lack thereof.
26. Institutions have both a role and a responsibility to play in developing applicable norms in the appointment process, which is no doubt a delicate issue. As part of this, they can and should employ an effective procedure for appointment, with transparency throughout the process. In particular, it is crucial that institutions have a robust procedure for dealing with arbitrator challenges. For example, under both the ICC Rules of Arbitration and the LCIA Arbitration Rules, a challenge must be submitted in writing and with reasons, and the arbitrator concerned and the other parties must be given a reasonable opportunity to comment on the challenging party's written statement. The LCIA goes a step further by giving reasoned decisions in respect of challenges, of which it has published an anonymized digest. This external transparency further legitimizes the process and discourages the making of frivolous challenges.
27. Institutions must also ensure that arbitrators who are appointed have the requisite availability to conduct proceedings and render an award efficiently. However, this is not always straightforward as stakeholders often have conflicting demands regarding arbitral appointments. Users want arbitrators who on the one hand are highly experienced but who also have the requisite availability to dedicate themselves to the particular case. These demands may lead to tension, which is further compounded by the fact that arbitrators anticipate settlement in a certain number of cases and wish to have enough work 'in the pipeline'.
28. Institutions must balance the conflicting interests of different players when appointing arbitrators. The reality is that highly experienced arbitrators often have a very significant caseload. Parties need to be realistic as to what this means for their particular case. There may, for example, be instances where the parties are content to have a lengthy [Page178:]
procedure, provided that they have a specific arbitrator. In such instances, nominating an individual with an already heavy caseload may not be a problem for them. What is not realistic, however, is for parties to nominate notoriously busy individuals and then blame the institution (or the arbitrator) for failing to expedite the matter.
29. Both the ICC and the LCIA Rules expressly refer to an arbitrator's availability. Under both sets of rules, an arbitrator, prior to appointment, must sign a statement confirming not only his or her impartiality and independence but also his or her availability. The ICC led the way in this respect, as it was the first institution to introduce an availability form to be completed prior to appointment.
30. Under the 2014 LCIA Rules, in addition to signing a statement, arbitrators are also asked to complete a form disclosing certain information regarding their current caseload, including the number of awards outstanding and upcoming hearing commitments. This information is for the institution only and is not disclosed to the parties at any stage of the arbitration.
31. Reviewing and assessing the information provided by potential arbitrators is a demanding task for institutions. It requires a delicate balancing of facts and interests and does not lend itself to easy generalizations. It is too simplistic to think that the number of pending cases is a sufficient criterion to assess how busy someone is. This assessment depends on the person's role, the type of case, the stage of the proceedings and many other considerations. The assessment is also not made in a vacuum but may be affected by others involved. It may be easy to accommodate the fact that one arbitrator has a lengthy hearing scheduled, but this may be more difficult where all three have completely clashing diaries for the foreseeable future.
32. Only when institutions are provided with sufficiently detailed information can they be expected to make a sound judgment in respect of arbitrator availability. This and fostering reasonable expectations among all stakeholders requires the cooperation of parties, counsel, arbitrators and the institution to provide appropriate information.
B. Cost and duration
33. Users frequently cite lower costs and shorter duration as reasons for referring their disputes to arbitration. It is important that institutions work hard to honour this credo by, to the extent possible, administering arbitrations that are time- and cost-effective (while not compromising quality). Once again, parties, their counsel and tribunals have their own roles to play in achieving this end.
34. As regards costs, there are a number of different systems for remunerating arbitrators. In an increasingly competitive landscape, these different systems are often used by different stakeholders as reasons to compare and to use (or not to use) a particular institution.
35. Broadly, there are two different approaches to calculating costs of arbitration: on the one hand, ad valorem, whereby the costs are based on the amount in dispute in the arbitration; on the other hand, on the basis of an hourly rate and the time spent in respect of the arbitration.
36. The ICC calculates the costs of arbitration on an ad valorem basis. The administrative costs and arbitrators' fees are based on the amount in dispute in accordance with the costs scales in force.
37. The LCIA, on the other hand, charges for its services on the basis of an hourly rate structure. The LCIA's administrative charges, and the charges of tribunals that the LCIA appoints, are determined by the hours spent on each arbitration. Further, under the LCIA's Schedule of Costs, the arbitral tribunal's hourly rate is subject to a cap.
38. There are, of course, variations of each approach, and some institutions take elements from both systems in calculating costs. The Hong Kong International Arbitration Centre, for example, gives the parties the option to determine the tribunal's fees either in accordance with an hourly rate or based on the sum in dispute.
39. Where parties and arbitrators ensure that proceedings are conducted efficiently, the hourly rate structure will result in a cost-efficient arbitration. The LCIA itself shares this responsibility with the parties and the arbitrators. If counsel and parties control the process, they can control costs and the duration of the proceedings.
40. The LCIA monitors the charges levied by arbitrators, as arbitrators are required to provide details of the time spent on each case, and it is the LCIA Court which must determine the costs of each arbitration.
41. Institutions should be transparent about the way in which they charge, and parties, in selecting institutions, should be well informed on the different cost structures that institutions employ, and how they work. Institutions should engage with users to discuss with them and educate them about the different cost structures employed.
C. Tribunal secretaries
42. Tribunal secretaries are increasingly becoming a feature of international arbitration, and their deployment is an issue that has attracted significant debate. There is often little transparency regarding the level of involvement of a tribunal secretary in a particular case. Furthermore, there is no consensus on the tasks that tribunal secretaries should be permitted to undertake, and norms are still developing in this respect.
43. It is critical that institutions engage in this discussion and be upfront in how they deal with secretaries: transparency is essential. The limits of the tasks of a tribunal secretary should be discussed and parties are entitled to know which matters are solely the responsibility[Page180:]
of the tribunal. There is no 'one size fits all' solution to this issue. Nor is it appropriate for institutions to impose rules and procedures on the parties and the tribunal where they are already aligned.
44. The more difficult questions arise where there is no consensus on when and how tribunal secretaries will be involved. In any event, tribunal secretaries should be subject to the same standards of independence and impartiality that apply to arbitrators; in some cases this will be a statutory requirement pursuant to the applicable arbitration law. Obviously, for conflict checks to be undertaken, transparency is vital. Furthermore, the system of remuneration should be transparent and appropriate, and what will be appropriate is again something that cannot be assessed in the abstract, and it will in any event depend on the institution's system of remuneration.
45. The current position taken by the LCIA is that a secretary to the tribunal can be appointed where all parties agree to the appointment (subject to the same independence and impartiality requirements as arbitrators). The requirement of party consent to the appointment of the legal secretary becomes less straightforward, however, where the parties do not agree to the secretary's appointment but the tribunal still insists on having that person act as secretary, calling into question the limits of party autonomy.
46. Further, the duties of a secretary to the tribunal in LCIA arbitration should neither conflict with those for which the parties are paying the LCIA Secretariat, nor constitute any delegation of the tribunal's authority. For example, while the LCIA will liaise with the secretary on administrative matters, the LCIA Secretariat will deal with all matters required of it under the Rules. Secretaries should be primarily concerned with such administrative matters as organizing papers for the tribunal, highlighting relevant legal authorities, maintaining factual chronologies, keeping the tribunal's time sheets and so forth.
47. The ICC has published a note on the appointment, duties and remuneration of what it refers to as administrative secretaries. Administrative secretaries in ICC arbitrations must satisfy the same independence and impartiality requirements as apply to arbitrators under the ICC Rules, and a secretary shall not be appointed if a party has raised an objection to the appointment. Moreover, the note sets out the tasks that the administrative secretary may perform.
48. One significant aspect in which the ICC's position differs from the LCIA's is in respect of remuneration. The ICC's position is that the engagement of an administrative secretary in an ICC arbitration shall not pose any additional financial burden on the parties. To this end, any remuneration of an administrative secretary shall therefore be paid by the tribunal out of the total funds available for the fees of all arbitrators. The LCIA on the other hand calculates fees, including those of the tribunal secretary, on an hourly basis. A legal secretary's [Page181:]
hourly rate will be considerably lower than that of a tribunal member. By charging for the secretary at a different, lower rate, there should not be an additional financial burden for the parties but in fact a saving.
49. The discussion on the use of legal secretaries remains to be fully developed. Issues of practice and principle arise. What level of delegation is appropriate? Does the addition of a secretary result in inefficiency or rather efficiency? Involving younger practitioners as secretaries may be a way of introducing them to the work of an arbitrator, which could facilitate the development of a wider, more diverse pool of arbitrators as discussed above. Parties and arbitrators must be frank and open in this regard. In addressing the use of legal secretaries, institutions should be careful not to be too judgmental or too categorical, but rather should facilitate an effective discussion to enhance good practice in an environment of legal and cultural diversity.
50. The parties' freedom to select the representatives of their choice is a core principle of party autonomy in international arbitration. However, this right must be balanced against the need to protect the integrity of the proceedings more generally, and in this way poses a challenge to the internal arbitral process.
51. To address this challenge, the 2014 LCIA Rules have introduced express provisions on changes to a party's legal representatives and the conduct of party representatives. While the rules preserve the fundamental right of a party to select the representative of its choice, if a choice obstructs the arbitral procedure (for example, by causing conflict), the 2014 LCIA Rules allow the arbitral tribunal not to approve a change to a party's legal team during an arbitration.
52. Another internal challenge facing the arbitral process is the regulation of counsel's conduct in international arbitration proceedings. Party representatives in international arbitration hail from a wide range of jurisdictions, with different ethical rules and norms governing their conduct. While such diversity is one of the things that makes international arbitration so interesting and attractive, and is therefore to be encouraged, lawyers from different jurisdictions may have different understandings of the role of lawyers, particularly in respect of duties to clients. It may, therefore, no longer be possible to rely on shared views and norms to ensure acceptable counsel conduct in international arbitration.
53. The 2014 LCIA Rules have introduced explicit provisions on the conduct of party representatives, codifying core ethical standards to which all party representatives to LCIA arbitrations must adhere. Such provisions reflect the LCIA's view that regulating ethics and conduct in international arbitration serves to create a level playing field between parties. The 2014 Rules provide that in the event of a complaint, either by one party against another party's legal representative or by the arbitral tribunal on its own initiative, it is for the arbitral tribunal [Page182:]
to decide whether a legal representative has violated the general guidelines. Further, the LCIA Rules provide for a number of sanctions which may be applied by the tribunal.
54. Institutions have a role to play in establishing the regulatory framework for counsel conduct. However, their role should be to regulate the procedure rather than the profession, and it should be the arbitral tribunals that enforce such regulations regarding procedure. It is for this reason that the LCIA Rules provide that decisions in respect of counsel conduct should not be made by the institution, but rather by the tribunal.
III. External challenges
A. Myths and realities
55. The primary role of institutions is case administration. Increasingly, however, institutions are facing challenges that go beyond the scope of the arbitral process itself. While these challenges do not directly impact upon the arbitral process, at least not in any given case, they can have a significant knock-on effect and may taint the perception of international arbitration as a tool for effective and efficient dispute resolution.
56. This section will focus on two such external challenges facing arbitral institutions such as the ICC and the LCIA. They have received much attention recently in both the international arbitration community and among the public at large.
57. The first area of misunderstanding and misconception is the recent attention that international arbitration has received as a result of the highly public debate surrounding the Transatlantic Trade and Investment Partnership (TTIP) and the role of ISDS in this and similar trade agreements such as the Comprehensive Economic and Trade Agreement.
58. The second area where myths and realities need to be distinguished is the impact of financial sanctions introduced by the United States and the European Union, in particular in relation to Russia as a response to the conflict in Ukraine.
59. Although these challenges may not directly impact upon the functioning and activities of arbitral institutions and do not go to the arbitral process itself, responsible institutions should engage with and address these issues.
B. TTIP debate
60. Since July 2013, the European Commission has been in negotiations with the United States over a trade and investment treaty, the TTIP, which would create the world's biggest free trade zone.
61. ISDS has been at the forefront of the wider public debate on the TTIP, as negotiations have questioned whether the TTIP should include an ISDS mechanism to settle disputes between foreign investors and countries over the implementation of the trade deal.
62. The concerns expressed over ISDS have provoked a broader discussion over the use of international commercial arbitration as a form of dispute resolution more generally. The debate has been characterized by a significant backlash against ISDS as a form of dispute resolution. Such opposition has often been characterized by misconceptions and confusion surrounding the mechanism of ISDS, and has revealed that the larger public is misinformed in respect not only of ISDS, but also international commercial arbitration more broadly.
63. In light of the vigorous public debate on the TTIP, investment protection and ISDS, the European Commission organized an online public consultation from March to July 2014 to gather views on investment protection and having ISDS mechanisms in the TTIP. The consultation asked the public for their views on a suggested approach for investor protection and ISDS, and for their general views on these key issues.
64. The report presented by the Commission stated that the collective submissions show widespread opposition to ISDS in the TTIP and in general. The report stated that in the submissions the ISDS mechanism is perceived as a threat to democracy and public finance and/or public policies.
65. Institutions must engage with these broader issues, which pose a threat to the international arbitration community, to ensure that discussions in respect of international commercial arbitration are balanced and grounded in fact. Further, institutions have a role to play in informing the wider public on what arbitration is about.
66. John is to be commended for the instrumental role he played in bringing institutions together to counter the ill-informed publicity that international arbitration was (and unfortunately still is) receiving as a result of the concerns surrounding ISDS. John has taken the initiative of combining forces and bring together practitioners and institutions to try to dispel some of the myths expressed in the debate. In doing so, he was careful to ensure that engaging in this debate should not and would not be seen to be a mere act of self-interest.
67. Both the European Union and the United States currently have in force an array of financial sanctions targeting specific regimes and activities. While many of these sanctions have been in place for a number of years, financial sanctions received significant attention following the events in Crimea, in particular the annexation of Crimea and the pro-Russian separatist violence in eastern Ukraine, as both the European Union and the United States imposed a suite of financial sanctions from March 2014 in response.
68. Sanctions potentially affect not only the substance of a contract out of which an arbitration arises but also the procedure itself, including the activities of parties, counsel, the tribunal and the institution. The precise scope of the sanctions is not so easy to establish, and practice is not necessarily uniform, even within the European Union for example, as implementing measures are in the hands of national authorities.
69. At the same time, since the intensification of Russian-related sanctions by both the European Union and the United States, it has been suggested by some that the 'solution' to these sanction-related concerns is choosing seats and institutions outside these jurisdictions.
70. In order to address sensibly these concerns it is imperative that all stakeholders analyse carefully the actual scope of these sanctions and the extent to which they affect arbitrations and institutions seated in the European Union and the United States. Such a careful and informed analysis demonstrates that facts and fiction are sometimes mixed up in the debate.
71. When discussing the Russian-related sanctions, a distinction should be drawn between financial sanctions that target sectoral cooperation and exchanges with Russia and asset freezing. The financial sanctions target specific sectors of the Russian economy and are limited in their scope, as they generally relate to the issuing of bonds.
72. By contrast, asset freezing sanctions result in the freezing of funds or economic resources, and are designed to target the alleged misappropriation of Ukrainian state funds and actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine. All funds belonging to, owned, held, or controlled by any designated natural persons or legal persons, entities or bodies associated with them, shall be frozen.
73. The asset freezing provisions are narrow in their reach, however, as the provisions apply only to the list of designated individuals. Further, in the event that an individual who is subject to an asset freeze needs to give or receive funds, there is scope to apply to the relevant domestic authority to obtain a licence to allow such a transfer. Domestic authorities are not always uniform in their approach and there is not necessarily an even playing field in respect of permissible exemptions.
74. The sanctions, therefore, do not target the arbitral procedure itself and do not prevent parties from seating their case in or referring their dispute to institutions based within a jurisdiction in which sanctions have been imposed. There are, however, a number of confined instances relating to the arbitral procedure, where the sanctions could have an impact. The first is where a designated party appears as or is a controlling entity, i.e. the ultimate beneficial owner, of a party to an arbitration. Further, sanctions could also impact the procedure where a party to an arbitration is itself an entity trading in dual-use goods and technology for military use in Russia or for any military end-user [Page185:]
in Russia. In such circumstances, the transfer of funds could be affected and there may be additional administrative steps required to obtain a licence or exemption to allow for the transfer of funds.
75. All institutions affected by the sanctions must be diligent in their compliance with the sanctions regimes, and work together with parties and their counsel. Comprehensive compliance requires that adequate checks and safeguards are in place to ensure that all parties in every new case and any new parties joined to an arbitration are checked against the list of designated individuals and entities.
76. Furthermore, institutions need to be aware of some of the more practical concerns that they may face in respect of sanctions. In the case of the Iranian sanctions, for example, there has been a reluctance by banks to accept funds from Iranian parties as a matter of good practice, rather than due to the nature and scope of the Iranian sanctions.
77. Institutions must not be afraid to engage with the issues and face them head-on. Users are perfectly entitled to select the best seat and institution for the case at hand and institutions should be prepared to discuss users' needs with them while remaining true to their own core strengths and values.
78. In recent years there has been an increase in the complexity of disputes referred to international arbitration and broad development of international arbitration as a method of dispute resolution. Such increased complexity has resulted in a number of challenges facing all institutions in ensuring that the procedural integrity of the proceedings is adequately safeguarded.
79. Institutions must be responsive not only to developments that occur within the context of the arbitral process itself, but also to developments and debates occurring in the broader public sphere, as these can often have a significant impact on the legitimacy and public perception of international arbitration.
80. John's presidency at the ICC illustrates just how effective such responsive action can be. He has led the debate on a wide range of issues, to further the strength and integrity of international arbitration as a method of dispute resolution. It is important that such action be reinforced, supported and shared with all stakeholders in arbitration, as we all have a role to play, and a responsibility to bear, in safeguarding and developing the future of international arbitration.
Director General of the London Court of International Arbitration (LCIA).