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( Source of the document: ICC Digital Library )
Noah Rubins and James Shaerf, respectively Partner and Senior Associate at Freshfields Bruckhaus Deringer LLP, and Maanya Tandon, Trainee, report on the Q&As session hosted by Freshfields Bruckhaus Deringer LLP on 27 April 2017 where panellists faced challenging questions and provided practice-based insights on current arbitration issues with a focus on the CEE and CIS regions.
Session Moderator: James Shaerf (Senior Associate, Freshfields Bruckhaus Deringer LLP, Paris)
Speakers: Noah Rubins (Partner, Head of the International Arbitration practice in Paris and the worldwide CIS/Russia Dispute Resolution group, Freshfields Bruckhaus Deringer LLP), Galina Zukova (Partner, Bélot Malan & Associés, Paris), Vladimir Khvalei (Partner, Baker & McKenzie, Moscow), Tomasz Wardyński (Partner, Wardyński & Partners, Warsow)
Panellists confronted the increasing scrutiny towards the role of tribunal secretaries and recognised that secretaries have – realistically – a role to play in the conduct of arbitration proceedings. However, parties’ agreement and knowledge in this regard is crucial, and there is a need for parties to be aware of and consent to the scope of such role. Some stressed that secretaries’ identities should be disclosed, and suggested that institutional guidelines might increase transparency and clarity in this area.
One topic that was addressed several times throughout the evening was third-party funding in arbitration. Panellists discussed whether the costs of third-party funding should be recoverable in some cases, but raised the concern of potential abuse. Costs should be recoverable in reasonable and foreseeable situations. The panellists also discussed contingency arrangements with parties’ lawyers and noted that increased levels of disclosure of funding arrangements would help to avoid potential conflicts of interest.
The issue of diversity in arbitral tribunals was raised to the panellists in light of the launch of the Equal Representation in Arbitration Pledge in 2016. The panel noted that, although there had been successes, fulfilment of the Pledge required conscious effort and commitment on the part of practitioners, institutions and arbitration users alike. One panellist noted that Central and Eastern European countries still seemed to be ‘behind the curve’ regarding gender equality on panels and that, in addition to quantitative improvements in appointments, culture and mind-set should also be examined.
The panel also commented on recent Russian arbitration law reforms, particularly on the arbitrability of certain types of corporate disputes, and noted that various other states around the globe had historically limited the arbitrability of disputes on issues perceived to be of unique economic importance to that state.
Panellists examined the impact that Brexit would have on international arbitration. The panellists noted that on one hand, the use of English law in commercial contracts would likely continue, but clauses that called for court adjudication in London would likely change, as other competitive centres of arbitration would challenge the viability of litigation before English courts. Nonetheless, London would remain at the forefront of global finance.
Panellists were questioned on the ethical codes of conduct for lawyers practicing international arbitration and admitted in various jurisdictions, and on the viability or necessity of creating a ‘level playing field’ via ethical codes of conduct given the range of different approaches across jurisdictions towards issues such as privilege and witness coaching. The panel stressed the importance of taking the ‘highest common denominator’ of ethical standards to prevent unfair prejudice. It discussed the importance of a code of conduct to preserve the reputation and efficiency of the arbitral process and the possible role of arbitral institutions (e.g. whether disciplinary ethical matters should be referred to home jurisdictions of counsel).
As part of its concluding discussion with the audience, the panel predicted that the new ICC Expedited Procedure Provisions would increase the popularity of the ICC Rules among users originating from the CIS and CEE regions. However, they also pointed to several problems in the region such as those arising from Russian sanctions, including funds not being released by banks, or from arbitrations lacking institutional support.
Regarding the role of arbitration institutions, panellists indicated that institutions should be bold and adopt new rules and practices where needed, such as the recent introduction of an Expedited Procedure in the ICC Rules. The panel cautioned, however, that it was not for institutions to substitute for courts, but rather to prevent abuse by parties, and reminded of the need for continued efficiency and neutrality on the part of institutions. Users prefer more, rather than less, administration in cases, and this includes scrutiny of awards and the need for arbitrators to provide reasoned decisions.