Washington, D.C., 7 December 2018

Every year since 1983, the leading international arbitral institutions – ICC, ICDR and ICSID – have co-organised a joint colloquium on international arbitration for a discussion on new developments and emerging trends in international arbitration.

This year’s colloquium began with a keynote address by Dyalá Jiménez-Figueres, Costa Rica’s Minister of Foreign Trade. In addition to her current responsibilities for Costa Rica’s trade and investment policies, Ms Jiménez also has extensive experience in international arbitration, having served as an arbitrator, counsel, and professor at different points in her career. Ms Jiménez opened her speech by noting that the existence of international law on trade and investment is essential to leveling the playing field for all countries engaged in international commerce. For that reason, she explained that Costa Rica has been highly engaged in the development of the international laws and policies that govern foreign investment. Turning specifically to the topic of investor-state dispute settlement (ISDS), she remarked that states and investors alike want predictability, efficiency, and transparency in the system. She highlighted the fact that a dialogue on how to maximize these attributes in ISDS is ongoing in a variety of fora, including at ICSID, where member states are focused on modernizing ICSID’s procedural rules for resolving investment disputes. In light of these discussions, she commended the hosts of the 35th Colloquium for designing a program focused on critical issues that could shape and improve the international arbitration system.

The keynote address was followed by brief institutional updates from Meg Kinnear, Secretary-General of ICSID; Eric P. Tuchmann, General Counsel and Corporate Secretary of ICDR; and Alexis Mourre, President of the ICC International Court of Arbitration. All three institutions reported growing demand for their services - 2018 saw the largest number of newly registered cases for ICSID with 56 cases, while 842 new cases were registered at ICC – and all are taking steps to ensure their facilities are accessible globally and across all economic sectors. The institutions also noted their commitment to diversity in international arbitration, and outlined measures taken help ensure that qualified arbitrators from a broad spectrum of backgrounds and experiences are active in the field.

Surveying current issues in compliance and enforcement of arbitral awards

Arif Ali, Co-Chair of Dechert’s international arbitration practice, began this session with a discussion of the decision of the Court of Justice of the European Union in Slovak Republic v. Achmea B.V. (Case C-284/16). Mr Ali noted that the decision, which ruled that the arbitration clauses in intra-EU BITs are incompatible with EU law, is one of the most consequential decisions for international law in recent years. He also highlighted the fact that the decision will be considered in a number of cases presently before U.S. district courts related to challenges to the enforcement of arbitral awards rendered in intra-EU disputes.

Silvia M. Marchili, Partner at King & Spalding, reviewed recent ICSID annulment decisions.1 In doing so, she drew attention to a few commonalities in the decisions that partially annulled an original award, such as their relation to damages. Ms Marchili concluded with remarks on the principle of finality of arbitral awards and noted the unique self-contained nature of ICSID Convention arbitration.2

Ucheora Onwuamaegbu, Consulting Attorney at Arent Fox, next asked colloquium attendees how enforcement of investor-state arbitral awards could be strengthened. Among the ideas he posited was for arbitral institutions to maintain a public record of compliance. He also suggested that parties and tribunals could consider options for non-pecuniary remedies. As a possible innovation, he raised the idea of a mechanism for following up on enforcement efforts, with consent of the parties.

Finally, Mark Kantor, an independent arbitrator, examined the International Court of Justice’s recent order in the case of Iran v. U.S. (Nuclear Sanctions Case). This order indicated limited provisional measures against the U.S., based in part on the interpretation of an ‘essential security’ exception clause. He suggested that the ICJ order has broader implications for contractual situations, trade sanctions, and perhaps other international disputes that could require analysis of similar provisions.

Mastering effective techniques for cross-examination

In this session, Meg Kinnear first set the stage with a hypothetical fact-situation, which was followed by a mix of mock exercises and commentary from the panel on best practice in conducting a cross-examination.

Ian Binnie, a former Justice of the Supreme Court of Canada and frequent arbitrator in international disputes, and Stephanie Cohen, an independent arbitrator with extensive experience in commercial disputes, noted how different legal backgrounds – such as civil law or common law – influence how counsel and arbitrators approach and perceive cross-examination. The panelists also commented on the differences between cross-examination in arbitration and court litigation settings.

Peter Griffin, Founding Partner at Lenczner Slaght, emphasized the importance of planning for a cross-examination, and illustrated through a mock-exercise how a well-considered cross-examination contrasts from one that is less thought through.

Mark Friedman, Partner at Debevoise & Plimpton, led the next mock exercise and demonstrated how open versus leading questions have very different outcomes in a cross-examination. While open questions give the witness freedom to focus on their preferred areas of expertise, leading questions can steer the exchange in a direction that is more supportive of a party’s arguments.

James Searby, Senior Managing Director at FTI Consulting, acted as the expert witness in the mock scenarios. He has extensive experience serving as an expert in international arbitration and commented on cross-examination from the perspective of the witness. He stressed the importance of asking precise questions that give the expert witness a clear understanding of the counsel’s interest. Doing so leads to better – and shorter – answers on the part of the expert witness.

Leveraging strategic communications in international arbitration

This session, moderated by Anne Urda, Editor-in-Chief of Law360, focused on strategic communications and public relations in the context of international disputes. Andres R. Romero-Delmastro, supervising counsel with Chevron Corporation’s enterprise litigation group, suggested that three principles are important:

  • Parties need to plan and develop their outreach strategy before the media takes an interest. This involves deciding on messaging and communications channels ahead of significant milestones or inflection points in a case.
  • Parties must be strategic rather than tactical in how they engage with the media. Instead of attempting to respond to everything negative said about your company or client in the media, it is better to focus on key messages.
  • Spokespeople must become a trusted source of information, which is a reputation that is built over time with journalists.

Tom Sikora, Counsel with ExxonMobil’s international disputes group, highlighted why companies may wish to avoid commenting in the media. Even when a dispute arises, he explained that companies will often wish to preserve their relationship with the host state, so that business relations can continue once the dispute is resolved. As such, it may be in a company’s interest to engage in private conversations with government counterparts, rather than in a public campaign.

Jennifer Haworth McCandless, Partner at Sidley Austin, echoed the point that it is better not to litigate the merits of a case in the media and suggested that counsel consider referring press inquiries to designated media specialists, to guard against inadvertent miscommunication.

Patrick Pearsall, Chair of the public international law practice at Jenner & Block, brought his extensive experience working in – and advising – governments to the discussion. He noted that one of the challenges governments face is that they may have competing interests in the context of investor-state dispute settlement depending on the cases or policies they are defending. For example, states develop the laws and instruments of consent for international arbitration and therefore have a stake in educating the public about the system as a whole. With respect to cases, states also have an interest on both sides of the aisle. They may be respondents in cases, but will also have an interest in protection of their own investors abroad. The result is that states must be able to speak to a multitude of audiences at any one time, including i.e. citizens and domestic investors, foreign investors, and other governments.

Assessing the ethical conduct of counsel in international arbitration

The final panel, moderated by Eric P. Tuchmann of ICDR, explored the real-life ethical issues encountered by counsel in international arbitration. The panel centered on three hypothetical situations developed by Catherine A. Rogers, a scholar of international arbitration and professional ethics at Pennsylvania State University:

  • The first scenario focused on third-party funding. Abby Cohen Smutny, who co-heads White & Case's international arbitration practice in the Americas, noted that a central aim of rules on third-party funding is avoiding conflicts through disclosure of such funding arrangements by the disputing parties.
  • The second scenario considered another potentially prohibited conflict of interest related to standards for assessing misconduct for a counsel serving in an ICC arbitration. Julie Bédard, Head of Skadden Arps international arbitration group for the Americas, looked for guidance in the IBA Guidelines on Party Representation in International Arbitration. She remarked that while the guidelines do not regulate the particular conflict of interest in question, misconduct may be construed as ‘any other conduct’ the arbitral tribunal ‘determines to be contrary to the duties of a Party Representative’.
  • The final scenario related to differing obligations related to privilege in the context of an AAA arbitration. Jean Kalicki, an independent arbitrator, explained that the fact that the case is an AAA arbitration is important, as the AAA’s rules establish that the arbitral tribunal shall take into account applicable principles of privilege, such as those involving the confidentiality of communications between a lawyer and client. When the parties, their counsel, or their documents are subject under applicable law to different rules, the tribunal should, to the extent possible, apply the same rule to all parties, giving preference to the rule that provides the highest level of protection.

The event adjourned with a reception and an opportunity for participants to continue the conversation on the many topics raised during the 35th Annual Colloquium in the impressive atrium of the World Bank Group’s headquarters.

Video highlights of the event are available at https://icsid.worldbank.org/en/Pages/resources/Highlights-35Annual-Joint-Colloquium.aspx.

A list of ICSID decisions on annulment is available at https://icsid.worldbank.org/en/Pages/Process/Decisions-on-Annulment.aspx

For more information on post-award remedies in ICSID Convention Arbitration, see https://icsid.worldbank.org/en/Pages/process/Post-Award-Remedies-Convention-Arbitration.aspx.