Conference, Day One

1. ICC Institute Training - Catch Me If (And While) You Can: How to Navigate Interim Measures in International Arbitration

Gustavo Laborde
Principal, Laborde Law, Paris

Introduction

Yves Derains (Chair of the ICC Institute of World Business Law; Founding Partner, Derains & Gharavi, Paris) inaugurated the ICC Institute of World Business Law Advanced Training stressing the practical importance of interim measures. They are a vital resource in the arsenal of arbitral weapons at the ready to inter alia preserve the status quo, safeguard key evidence, induce the other side to negotiate, and even win the case on the merits. Mr Derains further highlighted the mounting popularity of the relatively new emergency arbitrator proceedings.

Three cumulative factors, he noted, must be kept in mind to master the art of interim measures: A sound strategy, practical knowledge to put into action, and an ever-present eye on enforcement. The four panels of the day zoomed in on these factors.

1. Strategic considerations: When and to whom interim measures may be requested

The first panel, on the strategic considerations of interim measures, featured Fernando Eduardo Serec (Partner, Tozzini Freire Advogados, Sao Paulo) and Patricia Sa Moreira de Figueiredo Ferraz (Counsel, ICC International Court of Arbitration).

As a starting point, Mr Serec focused on the notion of interim measures. While ICC tribunals have an open-ended power to issue any interim measures they ‘deem appropriate’1, the Arbitration Rules do not define interim measures. Under the UNCITRAL Model Law, such measures serve a well-defined purpose: to protect the status quo, assets, evidence or the arbitral process.2 Under both sets of rules they must be ‘temporary’. Their existence is tied to their raison d’être, such that they only remain in existence for as long as they serve their purpose.

The questions of when and to whom interim measures may be requested, Mr Serec went on, are related: the ‘to whom’ depends on the ‘when’. If the interim measures are requested before the constitution of the arbitral tribunal, they may be requested either to an emergency arbitrator or to domestic courts. If they are requested after the constitution of the tribunal, they should be requested to such arbitral tribunal—or alternatively, to domestic courts. In short, the timing of the request determines which fora are available.

Finally, Mr Serec referred to an August 2018 decision from the High Court of Hong Kong3, where the local court confirmed that Hong Kong courts may issue interim measures in support of arbitration even against a person who is not a party to either the arbitration agreement or the arbitration. This illustrates the extraordinary reach that interim measures may have in some instances.

In turn, Ms Ferraz spoke about the ICC Emergency Arbitrator proceedings, regulated in Article 29 and Appendix V of the ICC Rules. Recourse to the Emergency Arbitrator proceedings is possible whenever the urgency is such that the request for interim measures cannot await the constitution of the arbitral tribunal. Parties may resort to these proceedings provided that (i) the ICC arbitration clause was agreed to on or after 1 January 2012, (ii) they did not opt-out of these proceedings, and (iii) they did not agree to apply a different pre-arbitral proceeding. The request for arbitration is to be filed together with, or within ten days of, the application for interim measures. The proceedings are swift: the emergency arbitrator must adhere to a strict timeline and issue a decision within 15 days from receipt of the file.4

Between 2012 and 2019, 110 applications for interim measures to emergency arbitrators were filed; many of these urgent applications were made on a Friday evening, a national holiday, or on the eve of end-of-the-year celebrations.

2. Practical considerations: The counsel’s perspective

Claudia Benavides (Partner, Baker & McKenzie, Bogota) opened this second panel by addressing the criteria for securing interim measures. Typically, she noted, these criteria are not that specific as interim measures must be tailored to the particular needs of the case. By the same token, these open-ended criteria make it difficult to predict the outcome of an application for interim measures. There are three main criteria:

  • The likelihood of success on the merits (fumus bonis iuris). A way to give further teeth to this requirement is to focus on the arguments, as opposed to the evidence. If the arguments in support of the interim measures request are reasonable – regardless of the evidence – it is likely this element is met.
  • The risk of irreparable damage, where one needs to juxtapose the risk of damage with interim measures and without interim measures.
  • The posting of a bond to compensate the potential damage caused by the interim measures, i.e. an interim measure which is later deprived of its basis because, for instance, the party obtaining the measure loses on the merits.

Ms Benavides then shared some real-life insights. She observed that, often, there is no correlation between the outcome of the request for interim measures and the outcome of the case, given that parties use interim measures as a tactical weapon, e.g. to force the other side to negotiate.

Finally, the focus shifted to the preferred forum where to request interim measures. The live poll among seminar participants showed the following results:5

  • Before national courts: 51.28%;
  • Before arbitral tribunals: 41.02%;
  • Before emergency arbitrators: 7.69%.

Factors to consider when making this choice, Ms Benavides concluded, include the nature of the dispute, speed, costs and confidentiality.

María Inés Solá (Legal Counsel, Pan American Energy LLC, United States) shared her experience with interim measures as in-house counsel. At the outset, she warned against the mentality of having automatic recourse to interim measures – just because ‘it might help’. It is important to carefully consider the pros and cons of the interim measures requested, and the specific form they should take.

To ascertain how prevalent interim measures are in international arbitration, and if interim measures have taken root in the ordinary practice of international arbitration, the live poll asked this question: ‘How often interim measures were at issue in arbitrations they were involved with over the past five years?’ Participants answered that interim measures were at issue:

  • ‘In some cases’: 83.72%;
  • ‘In most cases’: 2.3%;
  • ‘Never’: 13.95%.

Other poll Q&As shed further light on the practice of interim measures. These polls showed that the most frequently requested interim measure is the preservation of the status quo (41.3%); that ex parte interim measures are popular in Latin America (45.83% of participants were involved in arbitrations where such a measure was requested in the past five years); and that recourse to national courts to secure evidence in support of arbitration is fairly common (43% of participants have ‘sometimes’ been involved in this scenario over the past five years).

To conclude, Ms Solá noted that interim measures are not always ‘provisional’ as their effects sometimes cannot be undone: they may well decide the outcome of the case, evidence of just how crucial they can be.

3. Practical considerations: The arbitrator’s perspective

In this third panel, Elena Gutiérrez García de Cortázar (Independent Arbitrator, Paris) noted that interim measures entail a lot of responsibility: arbitrators need to make swift decisions on the basis of limited information whilst avoiding the risk of prejudgment. Interim measures were at issue in about 30% of the cases where she sat as arbitrator.

The first question arbitrators must consider, Ms Gutiérrez pointed out, is whether they have the power to issue such interim measures. To find the answer, arbitrators must look at both the lex arbitri and the rules of arbitration. While under Article 28 of the ICC Rules, for instance, arbitrators have wide powers to issue ‘any’ interim measures they ‘deem appropriate’, she warned that, on some occasions, it makes far more sense to have direct recourse to a national court with the power to enforce the measure requested (e.g. a measure to freeze a bank account).

The focus then shifted to ex parte interim measures. The live poll conducted among seminar participants revealed most were in favour of arbitrators having the power to issue ex parte interim measures (58.53% in favour; 21.95% in favour only if no national court was available; and 19.51% against). Yet Ms Gutiérrez expressed doubts about ex parte interim measures; they are generally not successful as most arbitration laws typically requires both parties to be heard. She noted that the outcome of the poll would have been "different" before a European audience, who is less attuned to the concept of ex parte measures.

As to the criteria to issue interim measures, it is advisable to begin the analysis with the requirement of irreparable damage, as it is the most difficult requirement to meet. Conversely, the likelihood of success on the merits is a low bar to meet and poses an inherent risk of prejudgment. She expressed approval for Judge Posner’s formula;6 the measure should be granted if the damage of denying it is prima facie greater.

Finally, if the final award and the interim measures decision reach different conclusions, Ms Gutiérrez recommends including a few paragraphs to explain why the tribunal reached a different conclusion in the final award, making reference for instance to new or additional evidence.

For his part, Clifford Hendel (Partner, Hendel IDR, Madrid) shared lessons learned from his recent experience as emergency arbitrator in a dispute between a major sports brand and a sports federation. The dispute arose when the sports federation sought to renegotiate the contract, announcing its intention to look for new bidders. The sports brand promptly commenced emergency arbitrator proceedings. Mr Hendel distilled his experience into four practical points.

  1. Emergency interim measures are usually requested under considerable time pressure.
  2. Emergency arbitrators suffer from a ‘deficit of information’ to make a decision. The learning curve is very sharp. Emergency arbitrators are required to assimilate much information in but a few days.
  3. Because of the time pressure and the limited information, the burden of proof on the requesting party is ‘high’ – all the more so if the request is for an ex parte measure.
  4. As a result of these three factors, about 60% of requests for emergency interim measures are denied.7

4. Compliance, enforcement and related issues

In the fourth and last panel, Leidylin Contreras (Deputy Director, Ministry of Foreign Trade, Dominican Republic) explained that interim measures may take one of two forms: an order or an award. Under Article 28 of the ICC Rules, it is for the tribunal to decide. But tribunals may of course consult with the parties first, as they often do on procedural points.

The order vs. award distinction, Ms Contreras noted, has important consequences. Awards, unlike orders, have res judicata effect, are subject to a series of procedural formalities – such as ICC scrutiny – and are subject to legal recourse. Crucially, awards have greater potential to be enforced as a matter of both international law – under the New York Convention – and domestic law. Form and enforcement are united.

Yet, Ms Contreras clarified that, in some jurisdictions, interim measures in the form of an award will not be enforced at law as they are not considered final. In Singapore, by contrast, domestic courts will treat a tribunal’s decision on interim measure as ‘final’ and thus enforceable.8 In brief, the order vs. award distinction is not the last word on this matter.

Patricio Grané Labat (Partner, Arnold & Porter, London) posited that, contrary to the received wisdom, there are no fundamental differences among the leading arbitral jurisdictions, from either the common law or civil law traditions, when it comes to the enforcement of provisional measures. In what is a common denominator, the parties or the tribunal will resort to domestic courts to enforce provisional measures, irrespective of whether they are in the form of an order or an award. This ad hoc study included six jurisdictions: England and Wales, the United States, the Netherlands, France, Brazil and Peru.

Arbitral tribunals have an array of procedural tools at their disposal to induce compliance with provisional measures. These tools are necessary because only 62% of provisional measures are voluntarily complied with, a Queen Mary study showed.9 To induce compliance, tribunals may employ inter alia devices such as sanctions—suspending the proceedings, though this only works against claimants—or an award on costs—allocating costs and fees against the non-complying party.

Finally, Mr Grané warned of the need to educate clients about the importance of complying with interim measures – not least to remain credible before the tribunal.

Concluding remarks

In his closing remarks, José Manuel García Represa (Partner, Dechert, Paris) mused that the strategic and practical considerations must be thought out together; they should be conceived of as a single block. But taking an allegorical step back, he added, the question of enforcement should be the starting point of the whole analysis, informing the evaluation of both the strategic and practical considerations.


Conference, Day Two

2. Doughnuts and Data Roundtable

Javier Jaramillo Troya
Senior Associate, Pérez Bustamante & Ponce, Quito

Estefanía Fierro Valle
Senior Associate, Andrade Veloz, Quito

Alexander G. Fessas (Secretary General, ICC International Court of Arbitration; Director, ICC Dispute Resolution Services, Paris) welcomed the audience and introduced Kathleen Paisley (Partner, AMBOS Lawyers, Belgium/USA; Co-Chair, ICCA-IBA Joint Task Force on Data Protection in Arbitration Proceedings) to the Q&A round. They talked about why arbitration practitioners should care about the General Data Protection Regulation (GDPR).

In an interactive early morning roundtable, Kathleen Paisley and Alexander Fessas discussed why arbitration practitioners should be aware of data protection regulations, in particular, the European General Data Protection Regulation (GDPR), which was approved in 2016 and entered into force in 2018. Ms Paisley explained that, given the significant impact that the GDPR could have on arbitration proceedings, the ICC and the ICDR had joined forces to establish a Task Force on Data Protection in International Arbitration Proceedings, which would be tasked with producing a guide to data protection in international arbitration proceedings.

According to Ms Paisley, it is essential for arbitration lawyers to be aware of data protection regulations. She explained that, in 90% of the cases, some law related to data protection is being applied to someone. Data protection laws such as the GDPR are of mandatory application, in a similar way to sanctions, and have a wide-reaching scope. For instance, it suffices for one arbitrator to be based in Europe for the entire process to be subject to the GDPR.

Ms Paisley explained that data protection rules create rights for individuals (called ‘data subjects’), which cannot be waived by corporate parties. Any processing of personal data is unlawful, unless the data processor or controller has the right to process data. The lawful bases for processing data include consent, compliance with a legal obligation and the protection of a legitimate interest, among others. That said, data protection rules must be applied proportionally on the basis of a balancing test.

Ms Paisely went on to note that every arbitral proceeding will involve the processing or transfer of personal or sensitive data. Lawyers and arbitrators are likely to be considered data processors or controllers because they decide what happens to the information collected for evidence or from clients in interviews.

The speakers next discussed how personal data should be handled in arbitral proceedings. Mr Fessas noted that, because data subjects have a right of access to their information, institutions must be prepared to provide them what they ask. This has been criticized in consideration of the confidentiality of arbitration. Ms Paisley also cautioned against using consent as a legal basis to handle personal data, as this consent can be unilaterally withdrawn, and suggested that legitimate interest would be a better option. She noted that the parties should agree on reasonable cybersecurity measures for physical and digital personal information, and also on what information can be shared. She suggested that these issues should be addressed in the Case Management Conference, where the parties and the tribunal should attempt to agree on a protocol which should be later included in a Procedural Order No. 1.


Conference, Day Two

3. Complexity revisited

Javier Jaramillo Troya
Senior Associate, Pérez Bustamante & Ponce, Quito

Estefanía Fierro Valle
Senior Associate, Andrade Veloz, Quito

Alexander G. Fessas (Secretary General, ICC International Court of Arbitration; Director, ICC Dispute Resolution Services, Paris) and Jennifer Kirby (Principal, Kirby Arbitration, France) reviewed the issues of the multi parties and multi-contract arbitration in a mock case activity.

By way of introduction, Alexander Fessas and Jennifer Kirby discussed some examples of complex arbitrations, such as cases in which not all parties have executed the arbitration agreement. The speakers analyzed the application of article 6 of the ICC Arbitration Rules based on the general principle of consent to arbitrate to extend the arbitration clause, noting that such consent may be express or implicit.

The speakers engaged the audience in an interactive assessment of three mock cases involving multiple parties that raised the following issues: (i) the joinder of related parties (parent companies) who are non-signatories to the arbitration agreement, and (ii) the consolidation of proceedings arising from the same agreement, or from different agreements but from the same economic transaction. This was a didactic panel in which the speakers addressed some of the problems that may arise in complex arbitrations, allowing attendees to put themselves in the shoes of the arbitrators.


Conference, Day Two

4. Arbitration in the life sciences and pharmaceutical sector: has the time come for this sector in Latin America?

Javier Jaramillo Troya
Senior Associate, Pérez Bustamante & Ponce, Quito

Estefanía Fierro Valle
Senior Associate, Andrade Veloz, Quito

Phillipe Cavalieros (Partner, Simmons & Simmons LLP, France) welcomed the attendees by introducing the discussions topic and the rest of the members of the panel, Marek Krasula (Counsel, ICC International Court of Arbitration, New York) and Conna A. Weiner (Mediator and Arbitrator, JAMS, United States; former in-house counsel, Novartis; Vice-Chair, Northeast Arbitration Subcommittee, USCIB). They talked about the advantages that arbitration gives to the pharmaceutical industry.

Ms Weiner and Mr Connor first provided some introductory remarks on the scope and main features of arbitration in the life sciences and pharmaceutical sector in Latin America. They explained that the term ‘life sciences’ refers to the discovery, development, manufacturing and commercialization of products used by healthcare professionals (not to healthcare itself). They noted that arbitration is involved in the entire chain and involves all kind of companies surrounding the pharmaceutical industry. In Latin America, most pharmaceutical disputes arise from distribution and licensing agreements involving large transnational companies.

The speakers then discussed the advantages of arbitration in the life sciences. They focused on two main advantages: (i) confidentiality and (ii) arbitrator experience.

Confidentiality

Confidentiality is an essential consideration in arbitration, as there is much sensitive information in the pharmaceutical industry which is highly competitive. Most of the disputes include important data related to the know-how of the companies, which the parties usually intend to keep unrevealed.

Another reason why is because parties often intend to preserve their future relationship. Maintaining a long-term relationship is particularly crucial in Research and Development agreements (R&D).

Arbitrator experience

The second advantage of arbitration is the ability to select arbitrators with experience in pharmaceutical matters. Usually, judges do not understand the process surrounding the pharmaceutical industry and cannot fulfil all the requirements of the parties. It is thus important to find an arbitrator who understands the business, and who can draft an award that makes sense to the parties and not only to the lawyers.

Ms Weiner and Mr Connor then discussed certain points lawyers should bear in mind when drafting arbitration clauses. First, they should make sure that they choose a seat that allows for arbitration in the life sciences in order to avoid any potential problem of arbitrability. Second, they suggested making the most of multi-tiered clauses providing for the possibility to mediate prior to going to arbitration. Ms Weiner emphasized in this respect that if mediation is already included in the arbitration clause, then a party will not look weak if it requests it.

The speakers concluded that contracts in the pharmaceutical industry should include a compatible arbitration clause to avoid inefficiency and take advantage of the benefits that arbitration can bring to their industry.


Conference, Day Two

5. ICC Young Arbitrators Forum (YAF) - Discussion on amicus curiae: its use, lessons and regulations

Krystle Baptista Serna
Independent arbitrator, Madrid

The ICC YAF panel of the 17th ICC Miami Conference, chaired by Alberto Madero (Head of Arbitration of Refinería de Cartagena, Cartagena and ICC YAF Representative for Latin America) dealt with amicus curiae submissions, their use, regulation and learned lessons.

Patrick W. Pearsall (Partner, Jenner & Block, Washington D.C., United States) opened the discussion with a general overview of the history and concept of amicus curiae submissions. Amicus curiae were known in Roman times – hence their Latin name as ‘friends of the court’ – and were adopted by the common law tradition. In 2000 the first amicus curiae was filed in investment arbitration (Methanex Corporation v. United States of America10, UNCITRAL), and such filings are now frequent. The real novelty is to have such submissions in commercial cases. Mr Pearsall underlined that the key to speaking about amicus curiae is balance and suggested that there will be an increase of amicus curiae in commercial cases due to the involvement of state owned entities.

Subsequently Marcela Kohlbach (Associate, Leste Litigation Finance, Brazil) addressed whether it is appropriate to have amicus curiae submissions in a case. She emphasized that it depends on the case: in investment arbitration, it could make sense, but in commercial arbitrations the agreement of the parties would be needed. In her opinion, the greatest benefit of an amicus curiae would be an increase in the quality of the award (since it would consider information provided by an ‘expert’) and highlighted that the challenge is to balance the benefit of the submission versus the disruption it causes to the proceedings.

Paul di Pietro (Deputy Counsel, ICC International Court of Arbitration, Paris) disagreed and averred that – at least under the ICC Rules – there is no need for the parties to agree on the intervention of amicus curiae, which is subject to a decision of the tribunal. He stressed that under the ICC Rules, arbitrators have enough powers to control the circumstances to avoid imbalance.

Analia Gonzalez (Counsel, ICC International Court of Arbitration, Paris) addressed the legal standards applied by tribunals to allow or reject the intervention of amicus curiae. Tribunals have considered the following, non-exhaustive, criteria: (i) the lex arbitri; (ii) the timing of the petitions; and whether (iii) the intervention would disrupt the proceedings; (iv) the petitioners are affiliated to the parties; (v)the submissions would enlighten the tribunal as to any of the issues in dispute; (vi) the intervention would address a matter within the decision scope of the tribunal; (vii) the non-party has a significant interest in the arbitration; (viii) there is a public interest involved; and (ix) the intervention would impose an undue burden over the parties.

Mr Di Pietro mentioned several commercial cases which have had amicus curiae:

  • one in which an international organization was allowed to intervene as amicus curiae because the tribunal considered they could provide useful information regarding the legal regime applicable to one of the parties;
  • a Brazilian case in which the project at issue was important for a region, hence the parties agreed to allow the intervention of an amicus curiae;
  • another Brazilian case in which the Tribunal allowed the intervention of a governmental entity, but imposing certain limits.

This led to a discussion on the limitations to the participation of amicus curiae imposed by arbitral tribunals, where all speakers agreed that the determination needs to be made on a case-by-case basis by the tribunal.

Alberto Madero (Chair of the session) ended the discussion by raising several important issues and leaving open-end questions to the audience, such as the approach of arbitral tribunals to the presentation of unsolicited evidence by amicus curiae and the proper role of amicus curiae in commercial arbitrations. In particular, he pointed to the need to make a strategic analysis on whether an amicus curiae could be more effective in another role (i.e. as a party’s witness).

Opening keynote speech

Alexis Mourre (President, ICC International Court of Arbitration, Paris) gave the opening keynote speech, in which he introduced the subject of the ICC Miami Conference and expressed his gratitude for the support received over the years for this event.

He then expressed his dismay over the unjust imprisonment in Peru of Mr Fernando Cantuarias, openly supporting his innocence and calling on Peruvian authorities to ensure a prompt liberation.

Mr Mourre ended his speech asking all participants to engage in meaningful discussions that can enrich the arbitration community, and to provide feedback in order to ensure that the conference continues to be a great success.

Roundtable: A deep look in seven Latin American jurisdictions: 90 minutes discussing the current state of affairs

The session called for the discussion of the following issue: ‘Arbitration in Latin America: still Latin or mainstream?’

The first panel of the 17th ICC Miami Conference, chaired by Juan Pablo Argentato (Counsel, ICC International Court of Arbitration, Paris) dealt with the status quo of commercial arbitration in seven Latin American jurisdictions. The discussion was divided in two blocks: the first, focused in arbitration and politics, which included a discussion on Peru, Venezuela and Mexico; and the second, focused on the legal status of arbitration in Colombia, Uruguay, Argentina, and Brazil.

Maria del Carmen Tovar (Partner, Estudio Echecopar, Baker McKenzie, Peru) tackled the question of whether Peru has been the victim of its own success. Due to a law that requires mandatory arbitration for contractual disputes with the Government, Peru has seen an exponential increase in the number of arbitration cases in the past 25 years. However, such success has been put to question by the discovery of corruption scandals involving arbitrators. The reactions to such situation have been led by the arbitration centers - with initiatives such as the CCL’s Faro de Transparencia11 - and the arbitration community, aiming to revert the situation and consolidate good practices.

Diana Droulers (Partner, Droulers & Asociados, Venezuela; Member, ICC International Court of Arbitration) addressed the Venezuelan situation and, in particular, whether there is an end in sight to the political and economic turmoil. Due to the 21st Century Socialism installed by President Maduro and his predecessor, Hugo Chavez, Venezuela and its state entities have been respondents in many commercial and investment arbitration cases. The most recent issue is the question of the double representation of the Venezuelan Government, de facto in hands of Nicolás Maduro, but with Juan Guaidó recognized as President by more than 60 countries. The issue has brought numerous practical consequences in the proceedings raising questions related to proper notification, payment to counsel and the administering institution, implications of US sanctions, among others.

Claudia Frutos-Peterson (Managing Partner, Curtis, Mallet-Prevost, Colt & Mosle LLP, Washington DC, United States) discussed the Mexican landscape under the ‘New NAFTA’ (USMCA). The New NAFTA, which was signed in 2018, and will take effect on 1 July 2020, significantly alters the Mexican landscape. Most notably: it limits the grounds to file a dispute based on investments between the USA and Mexico; it shortens the time available for a claimant to file a claim, and, in general, it does not cover indirect expropriations. It is also worth mentioning that pursuant to the new Treaty disputes between the USA and Canada will be solved by their respective courts, not by international arbitration.

Alberto Zuleta (Partner, Holland & Knight, Colombia) analyzed whether it is time for the Colombian arbitration law to adopt a monist approach. The dualist approach of the current law, which has constitutional roots, has allowed international arbitration to flourish in Colombia. Hence, there would be little to gain and much to lose if the law were modified in the coming years to take a monist approach.

Sandra Gonzalez (Partner and co-leader, Litigation and Arbitration team, Ferrere, Uruguay) addressed the consequences of the new arbitration laws enacted in both Uruguay and Argentina. The new laws were enacted in order to adapt to the international standards, strengthen both countries as possible seats for international arbitration and define the limits of judicial control over awards. The future will tell whether these objectives are achieved.

Fabiano Robalinho Cavalcanti (Partner, Escritório de Advocacia Sergio Bermudes Advogados Associados, Brazil; Director, Brazilian Committee of Arbitration – CBAr) finalized the panel analyzing whether Brazil has a calm sea and a prosperous voyage or stormy weather ahead. The main challenge addressed was the increase in the number of arbitrations derived from arbitration clauses included in articles of incorporation of companies listed in the Brazilian Stock Exchange, which has raised issues inter alia related to class arbitrations, joinder of third parties and confidentiality.

"How to handle corruption allegations: experience drawn from cases involving Latin American parties"

The ICC has recently established an ICC task force ‘Addressing Issues of Corruption in International Arbitration’, created to explore current approaches to allegations or signs of corruption in disputes, and articulate guidance for arbitral tribunals on how to tackle such matters. Although the task force’s report is still in progress, the discussion of the second panel of the 17th ICC Conference, chaired by Ana Serra e Moura (Deputy Secretary General, ICC International Court of Arbitration, Paris) can surely be taken into consideration. The panel discussed how to handle corruption allegations in commercial arbitrations focusing on experiences drawn from cases involving Latin American parties.

The burden of proof and the applicable standard of proof for corruption allegations is one of the main issues related with corruption allegations in arbitration. Christian Albanesi (Partner and Head of Latin American Arbitration, Linklaters, Washington D.C., United States) assured that the burden of proof lies with the party alleging corruption, but explained that in exceptional circumstances the tribunal may ask the counterparty to present evidence to the contrary. The discussion of the recent Wells Ultimate Service LLC v. Bariven12 case lead to consensus on the need to establish consistent criteria on the standard of proof required to uphold corruption allegations.

Luca Radicati di Brozolo (Partner, ARBLIT, Radicati di Brozolo Sabatini Benedettelli Torsello, Italy; Professor, Catholic University of Milan) disagreed with 47% of the audience who considered that there is no sua sponte obligation of the arbitral tribunal to investigate and prove acts of corruption. He defended the need for a more intrusive approach, and raised the questions that logically derived from such an approach: where would the arbitrators get their power to do this? How should they investigate? Who should they report to and on what basis? What should they do if the parties wish to keep it quiet? Can they resign? Would that help?

The discussion then turned to the interaction between arbitrations and parallel criminal proceedings, and in particular whether the arbitration should be adjourned. The issue was addressed by Elena Gutierrez Garcia de Cortazar (Independent Arbitrator and Professor at Law, Paris) who asserted that faced with such issue tribunals have balanced efficiency vs. enforceability, focusing inter alia on the impact of parallel criminal proceedings in the arbitration, the possible delay of the arbitration, whether there is a time limit to issue the award and whether the criminal proceedings seem to be part of a defense strategy.

Eduardo Damião Gonçalves (Partner, Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, Brazil; Vice President, ICC International Court of Arbitration) closed the discussion by addressing the legal consequences of finding that the contract was tainted by corruption. In investment arbitrations, corruption is a jurisdictional issue, thus treaty protection would not be available and the arbitral tribunal would lack jurisdiction. But in commercial cases the issue is more complex, remedies vary and will depend on the circumstances of the case and the offended party.

When comments were opened to the public, David Arias (Partner, Herbert Smith Freehills, Madrid) recounted a situation to the panel which he lived as a presiding arbitrator, in which one of the parties seemed to have bribed the counterparty into a settlement.

The issues discussed left ‘over the table’ the many challenges faced by the ICC task force ‘Addressing Issues of Corruption in International Arbitration’.


Conference, Day Two

6. Gas Pricing Disputes: How To Make It Predictable?

Julian Bordaçahar,
Permanent Court of Arbitration, Legal Counsel and PCA Representative in the Argentine Republic

The panel discussed issues related to the distinctive features of gas pricing disputes, tips for drafting arbitration clauses to improve predictability, and arbitrators’ desired qualities. Additionally, the speakers discussed the scope of review of the gas pricing formula, questions related to the confidentiality of pre-arbitration negotiations, and issues arising out of the res judicata effects of awards in long-term contracts with periodic gas pricing reviews.

Monica Jimenez (Secretary General at Ecopetrol S.A., Bogotá) kicked off the discussion by describing that price review clauses in gas pricing disputes typically feature in these extensive ten to twenty year contracts. Thus, they become essential for maintaining long-term business relationships between parties who enter into repeated contracts. Therefore, while disputes may arise at particular points in time, the impacts of an effective, efficient and, most importantly, predictable dispute resolution mechanism in the wider context of the parties’ commercial relationship should not be underestimated. She also underscored that a good arbitrator must possess three qualities: speed, cost-effectiveness and expertise. Moreover, tribunals should engage in frequent conversations with the parties about the issues in dispute and the evolution of the case. The combination of these factors would hence contribute to the predictability of outcomes in the industry.

Michael Polkinghorne (Partner, White & Case LLP, Paris) invited the audience to think of the arbitrators as part of a contractually-agreed scheme to arrive at a price throughout the life of the contract. This is quite different from disputes dealing with damages and in which the commercial relationship may be broken. In this context, understanding the process by which tribunals arrive at a price is crucial. Unfortunately, there is plenty of evidence showing that the approach taken by tribunals to price calculation is not only wrong but also inexplicable. This in turn directly affects the predictability of outcomes. As parties need to understand why and how the gas price formula will impact their relationship, understanding the tribunal’s approach in determining gas price formulas becomes particularly important. Additionally, issues of res judicata may arise in subsequent price revision disputes, which can be very problematic, particularly if the previous award does not deal with issues properly or thoroughly. Moreover, the fact that most price review awards are confidential undoubtedly affects the predictability of outcomes. A way to attempt to prevent this is by appointing arbitrators who are experts in the industry.

Last but not least, Carmen Martinez (Partner, Three Crowns LLP, London) explained that defining the ‘trigger’ for price review is crucial as there are many factors, including unpredictable changes in the market, that affect the price of gas. While incorporating provisions to review gas prices at determined points in time might achieve more predictability, this may nonetheless be too rigid a solution. Instead, setting certain thresholds based on market objective criteria can be a useful alternative. Once the trigger event has arisen, the contract must be carefully drafted to address the arbitrators’ scope of review. She also underscored how tribunals and counsel could make use of various procedural tools to increase efficiency, such as baseball arbitration, which forces the parties to adopt reasonable positions. Counsel should also be pushing tribunals to make early determinations, which can contribute to substantially simplifying and streamlining the proceedings.

Conference, Day Three


7. The revision of final awards: when, if ever, is it acceptable?

Julian Bordaçahar,
Permanent Court of Arbitration, Legal Counsel and PCA Representative in the Argentine Republic

The panel dealt with the delicate issue of review of arbitral awards. Given that awards are only enforceable to the extent that they survive judicial scrutiny, the role played by supervisory courts, and the way the applicable rules of law shape that role, will determine the fate of arbitration proceedings.

The panel was chaired by Josefa Sicard-Mirabal (Independent Arbitrator, Adjunct Professor of Law Fordham University School of Law, New York) who introduced the session by underscoring that while finality is arbitration’s distinctive feature, finality is not absolute. Therefore, there are exceptional instances when awards can be reviewed.

Eliseo Castineira’s (Partner, Castineira, Berlin and Paris) explained that revision of awards must not be confused with appeal or annulment. Arbitrators can, exceptionally, review their own decisions upon the discovery of: (i) procedural fraud; and (ii) new facts or evidence. Procedural fraud can take the form of, for example, forged documents, false testimony, witness intimidation, etc. By contrast, new facts or evidence are frequently discovered in the context of criminal investigations. As illustrated in a recent investment arbitration involving Venezuela, a request for review was based on information which became public in the context of the WikiLeaks scandal. He concluded by noting that, because revision will affect finality and res judicata, the burden of proof lies heavily on the applicant.

Subsequently, Felipe Ossa (Partner, Claro & Cia, Santiago de Chile) provided a normative overview regarding judicial review of awards in Latin American jurisdictions. He noted that all modern legislations recognize the principle of finality, precluding domestic courts from reviewing the merits of the case. However, in several of these jurisdictions, indirect avenues of review are available under other procedural remedies. For instance, Chilean law’s Recurso de Queja allows review whenever a manifest abuse or offense has been committed by the arbitrator(s). Whereas in Colombia awards can be reviewed to protect fundamental rights under the Acción de Tutela, in Peru they can be reviewed by way of an Amparo action if constitutional rights have been affected.

Kate Brown de Vejar (Partner, Global Co-Chair of International Arbitration, DLA Piper, Mexico) started by noting that awards can only be reviewed in Mexico by a set aside or an Amparo action. The Mexican Supreme Court has recognized the priority of the finality principle to promote arbitration. Parties must comply with awards despite any deficiencies, unless the decision is ‘openly unjust or incorrect’. In her opinion, awards should only be reviewed when they have absolutely no basis. Relying on an example from a New York Court case,13 she walked the audience through an exercise to show how difficult it is in practice to draw the dividing line between requests for correction or interpretation and requests for review.

Lastly, Ina Popova (Partner, Debevoise & Plimpton LLP, New York) assessed Singapore’s recent proposal to allow appeals on questions of law, and its feasibility in civil law jurisdictions. While Singaporeans claim that this proposal, would enhance party autonomy and flexibility, she argued that statistics, such as a 2018 Queen Mary survey, do not seem to support further increased interest. Arguably, the standards for allowing these applications—decision is obviously wrong, question of general interest—are consistent with the perceived lawmaking function of courts, which tends to be generally weaker in civil law countries. However, finality of awards can only be the rule if parties can trust arbitrators to get things right. Tellingly, psychological studies show that people tend to behave when there is someone looking at them. The lesson to draw is that arbitrators should act as if someone (judges) is always looking, because soon they might.


Conference, Day Two

8. Complex Evidentiary Issues

Ricardo Chirinos
Associate, White & Case LLP, New York

In the session on complex evidentiary issues, Deva Villanúa and Cristián Conejero used mock cases to illustrate how complex evidentiary issues –such as the attempt by a party to use evidence obtained in parallel administrative and criminal proceedings or evidence obtained illegally, as well as the use of negative inferences– may arise in international arbitration proceedings and how arbitral tribunals might decide on them.

Evidence Obtained Illegally & Negative Inferences

Cristián Conejero (Partner, Philippi Prietocarrizosa Ferrero DU & Uría, Santiago) discussed the issue of illegally-obtained evidence through a hypothetical scenario in which a telecommunications company (NTC) entered into a concession contract with a state-owned company (PTC) to operate the latter’s optical ground wire infrastructure for a fee. When the arbitration arising out of this transaction reached the quantum phase, information revealing NTC’s conduct in breach of the concession contract was stolen in the midst of mass protests at NTC’s headquarters and subsequently published, and PTC sought to introduce this information in the arbitral proceedings in support of its claims.

On the basis of this hypothetical scenario, Mr Conejero addressed the following questions: may a tribunal revise a previous decision on liability in light of illegally-obtained, newly-published evidence?; who should determine the illegality of the evidence (the courts or the tribunal)?; how should the tribunal determine illegality ?; and, what law and legal standard should apply to determine illegality? Confidentiality issues were also mentioned, as he reflected on how confidentiality and privilege factor into determining illegality. The applicability of res judicata was also discussed in considering whether a tribunal may overturn its decision on the merits at the quantum phase.

Mr Conejero then asked the audience three questions. First, whether they agreed with a party presenting new evidence as a result of the mass protests to suport NTC’s breaches: 51.35% of the audience agreed that PTC should be allowed to introduce the evidence. Second, he asked the audience to assume that the evidence was introduced only after having requested and been denied such evidence from the other party during the document production phase: 75% agreed with the party introducing the evidence. Third, he asked those that had supported the party introducing the evidence in the prior question, whether they would change their mind if that party took concrete actions to seek and obtain such evidence: 59.18% answered that they would.

Turning to negative inferences, Mr Conejero considered what would occur if NTC failed to turn over relevant and substantial documents relating to the allegations of breach by NTC, the disclosure of which the tribunal ordered. He analyzed whether the tribunal may issue an award based on negative inferences, whether the tribunal should draw such inferences without being asked to do so by the parties, whether the tribunal should consult the parties before applying the IBA Rules on the Taking of Evidence in International Arbitration, and whether the failure by NTC to disclose the relevant documents could be considered by the tribunal in its decision on costs.

Evidence Obtained in Special Procedures

Deva Villanúa (Partner, Armesto & Asociados, Madrid) focused on evidence obtained in special procedures, such as administrative and criminal proceedings, unfolding concomitantly with parallel arbitral proceedings. She used a mock investor-state case, involving fictional company Autopistas, as the winner of a bid for the construction of a highway in Andinia, a fictional country. In her hypothetical case, she presented a situation in which the State’s Tax Agency began to independently investigate Autopistas for tax fraud, seizing documents without prior notice, which the State of Andinia then sought to use in an unrelated arbitral proceeding. Ms Villanúa asked the audience how they felt about the State’s attempt to use these documents in the arbitral proceedings: 78.78% of the audience sided with Autopistas in filing a motion to strike evidence from the record and the memorial, alleging illegality, privilege, and due process violations. The hypothetical at-hand raised a question as to whether a State and its entities count as one single body for the purpose of sharing evidence in an arbitral and parallel administrative proceeding. She explained that in a real case with a similar situation, the tribunal decided to strike the evidence and redact it from the memorial, reasoning that a State’s sanctioning and investigative powers must be purpose-oriented and limited. 56.56% of the audience agreed with this outcome.

Turning to a variation of her initial hypothetical, Ms Villanúa asked whether evidence procured by a prosecutor as part of an audit for a criminal proceeding could also be used in an unrelated arbitration. The hypothetical raised issues relating to improper witness questioning, aggravation of a dispute, and personnel intimidation. Moreover, this hypothetical considered the role of a Special Master (an independent third party appointed by the tribunal, tasked with reviewing the evidence and determining whether it is indeed privileged or confidential) in this scenario should be, and whether evidentiary documents should be evaluated and selected ‘document-by-document’ or holistically for inclusion in parallel proceedings.

Finally, Ms Villanúa discussed a hypothetical in which the contributions of retirees into a pension fund were almost entirely depleted due to alleged fraud. The hypothetical illustrated how negative inferences could affect the calculation of damages: specifically, in that case, absent evidence on how the relevant contributions were actually invested, the use of negative inferences could lead to calculating damages by reference to the historic yield of such investments.


Conference, Day Three

9. Roundtable on 'Maximizing the Probative Value of Witness Evidence'

Diego Romero
Associate, Latham & Watkins, Paris

In October 2015, the ICC Commission on Arbitration and ADR established a Task Force on the Probative Value of Witness Evidence in order to prepare a report combining scientific research on memory and witness examination and preparation practices in international arbitration. The objective was to establish recommendations that could enhance the probative value of witness evidence in international arbitration. The conclusions of the Task Force were presented by José Astigarraga (Partner, Reed Smith LLP, Miami, United States) and Sabina Sacco (Partner, Lévy Kaufmann-Kohler, Switzerland).

Mr Astigarraga started by referring to existing studies finding that human memory is uncertain and malleable. He explained that this creates issues in the context of dispute resolution, including in international arbitration. For example, the way a question is formulated can change the way a person will remember something. People talking about the same events together can also contaminate their respective memories. Other studies showed "retelling" bias, i.e. how the act of retelling a story from a particular perspective can change a witness’ memory. People can also develop false memories if exposed to the right prompts or questions. When misinformation is used to implant entire events within a person’s memory, the subjects truly believe that they have these (false) memories, which distinguish them from conscious liars and makes it harder to determine that the testimony is not reliable.

Mr Astigarraga clarified that legal traditions have different attitudes regarding witness evidence. Common law legal systems place significant focus on witness evidence while civil law jurisdictions tend to rely more on documents. In international arbitration, as a matter of principle, he suggested that it is advisable not to give weight to one type of evidence over the other.

Ms Sacco gave practical guidance on how to face the challenges surrounding the probative value of witness evidence. She noted that international arbitration practitioners did not always take the appropriate precautions to prevent memory distortion and recommended the development of an open toolkit in order to address the issue. She suggested measures to be taken by the witnesses themselves, in-house counsel, external counsel and the arbitral tribunal not only to reduce memory distortions but also to assess the weight of witness evidence.

First, regarding measures to reduce memory distortions, Ms Sacco advised in-house and outside counsel to keep written records, to put the witness at ease and emphasize the importance of personal recollections, to meet the witnesses individually and discourage exchanges among witnesses. Additionally, in order to avoid influencing witnesses, counsel should use neutral language, avoid leading questions and refrain from giving witnesses feedback on their answers. Outside counsel in particular were advised to draft witness statements independently of each other and to allow witnesses to prepare the first draft of their witness statement using their own words. They should assess the information given by witnesses and consider how much time has passed since the event, how reliable the witness is and how memory distortion might affect the testimony. Ms Sacco stated that when preparing for the hearing, outside counsel should examine the applicable witness preparation rules and propose guidelines to reduce memory distortion during the hearing.

Second, regarding measures to assess the weight of the evidence, Ms Sacco explained that all arbitral players should learn about memory, unavoidable memory distortion and influencing factors. She advised arbitral tribunals to inquire into how witness statements were prepared and whether witnesses discussed their evidence with each other. Additionally, she suggested that the tribunal could give instructions to witnesses before their examination, impose witness sequestration and require them to only use their personal knowledge and expressly state if they are not testifying from personal recollection. She o insisted that none of these recommendations are mandatory;they should all be evaluated on a case-by-case basis, in particular in cases where testimony evidence is essential to the dispute. She concluded by clarifying that, even if imperfect, witness testimony is valuable. Therefore, tribunals and counsel should focus on reducing memory distortions in order to achieve a reasonably close approximation of what in fact happened.


Conference, Day Three

10. Interest and inflation adjustment in international arbitration

Diego Romero
Associate, Latham & Watkins, Paris

Juliana Castillo (Legal Director EMEA, Crown Europe, France) chaired the panel and began by highlighting the relevance of interest in international arbitration. Ms Castillo explained that even though the question of interest is often overlooked in awards, it is of the utmost importance to the parties, as it often involves large sums of money (in some cases, even more than the principal claims), and errors involving the calculation of interest can lead to the annulment of the award. The lack of certainty and uniformity in the area is therefore troublesome.

Andres Jana (Partner, BMAJ, Chile) discussed the question of the law applicable to the determination of interest in international arbitration, focusing on the practice of international commercial tribunals. Mr. Jana explained that applicable law can typically be found within any type of agreement between the parties (i.e. the contract, the arbitration institution’s rules and any later agreement). He added that in the absence of agreement between the parties, tribunals commonly look at six different sources: (i) the general legal regime for damages, (ii) conflicts of law rules, (iii) domestic law interest rates, (iv) international conventions, (v) commercially reasonable solutions and (vi) lex mercatoria. He a cautioned against applying domestic law interest rates as these do not accurately reflect market practices and might not have a compensatory objective. He instead encouraged approaching interest as a head of damages, and therefore looking for a commercially reasonable result that will reflect the loss in fact sustained.

David Arias (Partner, Herbert Smith Freehills, Spain) described the role of lex mercatoria in calculating interest. Mr. Arias began by underscoring the high degree of uncertainty surrounding the calculation of interest. He posited that the application of the lex mercatoria to the calculation of interest could offer solutions in tune with the demands of international commerce (and by extension, international arbitration). He drew a distinction between the lex mercatoria (principles, conventions, and model laws) and commercial custom (repeated commercial practices between parties or within an industry). He explained that lex mercatoria principles expressly regulate interest. In fact, the right to obtain interest is codified in Articles 7.4.9 and 9.508 of the UNDROIT Principles on International Commercial Contracts. By contrast, commercial custom may cover interest depending on the parties at issue or particular industry practices in question. He noted that most major institutional rules allow arbitral tribunals to apply the lex mercatoria to award interest. However, he cautioned that mandatory rules of the applicable law may limit the possibility of applying lex mercatoria. He concluded that in situations where the parties have not claimed interest, arbitrators should refrain from granting interest ex officio unless there is an imperative rule directing them to do so.

Valeria Galíndez (Partner, GalíndezArb, Brazil) discussed the rates and calculation methods of interest in international arbitration. Ms Galíndez focused on three different questions that tribunals typically face when awarding interest. The first question is to determine the nature of the interest to be awarded,i.e. compensatory or punitive. In the case of compensatory interest, in the absence of agreement of the parties, arbitral tribunals commonly apply the rates used in the country of performance of the contract. By contrast, for punitive interest, tribunals assess whether the parties have actually agreed on the availability of punitive interest and whether any statutory limitations at the place of recognition or enforcement of the award may limit the possibility of awarding punitive interest. The second question concerns inflation adjustment. She explained that tribunals commonly assess the components of the interest rate at issue because some interest rates take into account inflation, while others do not. She also noted that tribunals also often take into consideration the currency of the award, as well as statutory provisions requiring inflation adjustment, by in their calculation of interest. Finally, the third question tribunals address is whether to award simple or compound interest. She noted that while simple interest is common within most legal systems, compound interest is the standard practice of international arbitral tribunals. However, she acknowledged that statutory limitations on compound interest may restrict the enforcement of an award granting compound interest. She finished by noting that tribunals often omit justifying their choice of interest calculation method.

John Adam (Partner, Latham & Watkins, France) concluded the session by focusing on interest on costs. Mr Adam described the arbitration process as a "family" where the attention of the "parents" (i.e., the lawyers) diminishes as they spend time with each "child". Jurisdiction, the eldest, is the most beloved. Then come merits and damages, which the "parents" still have time for, though they are busier. Interest and costs are practically raised by their grandparents since the "parents" have no time or energy left. Finally, within this "arbitration family", he described interest on costs as a "long lost cousin" only seen during weddings and deprived of attention when compared to the more favored members of the "arbitration family". He explained that, in principle, there is no limitation on the possibility of claiming interest on costs, as most arbitral rules give tribunals a wide discretion to award costs. However, he explained that most tribunals only grant post-award interest on costs, even if most costs are accrued before the award. Tribunals have reached this conclusion on the logic that the obligation to pay the other party’s costs only arises after the award such that it is therefore unknown beforehand to whom this cost will be attributed (if at all). He concluded the session by advising parties to claim interest on costs from the outset of the proceedings.


Conference, Day Three

11. ICC – ArbitralWomen

María Julia Milesi
Senior Associate, Freshfields Bruckhaus Deringer, Washington DC, USA

The panel, co-organized by the ICC and ArbitralWomen, was moderated by Dana MacGrath (President of ArbitralWomen and Investment Manager and Legal Counsel at Bentham IMF) and focused on diversity efforts in Latin America. The panellists discussed initiatives that have resulted in incremental progress and identified specific aspects of the diversity conversation that are particular to the region.

Sandra González (Partner, Ferrere, Uruguay and founder of Women Way in Arbitration) pointed out that lack of gender diversity is as much of a problem in Latin-American as it is in other parts of the world. She noted that the legal profession is still male dominated, particularly in areas like finance, corporate and litigation, although not so much in arbitration, where women find it easier to flourish. She commended the diversity initiatives that law firms and institutions have recently undertaken, highlighting their value in creating awareness in certain spaces where the stakeholders were not conscious of the existence of a problem of underrepresentation. Another issue that is less discussed, but equally present and important in her opinion, is social and economic background diversity. In her experience, most partners in law firms come from elite schools and law schools, while candidates with a more modest background that manage to get qualified often have trouble getting into law firms.

Diana Gárate (Senior Manager, EY Law, Peru) stressed that diversity efforts need to go beyond gender diversity and economic background, and also seek to include people with diverse abilities (mental and physical), different sexual orientation, generation, ethnicity, etc. She noted that LGBT rights in Latin America are still a social taboo, particularly in her country, Peru, which is very conservative. She noted that several law firms have established programs to promote inclusiveness in a broader sense, including initiatives aimed at fighting unconscious bias, assisting and supporting employees through gender transition, and recruitment criteria to promote neurodiversity (people with spectrum conditions, autism, dyslexia, Asperger, ADHD).

Rafael Gagliardi (Partner, Demarest Advogados, Brazil) explained that in his opinion, inclusiveness is about affording people the space to showcase their talent and abilities, regardless of their gender, origin and sexual orientation. He noted that although many efforts have been made to achieve gender diversity, there is little progress in other aspects. He mentioned that in Brazil, where 53% of the population is black, the aspect of racial inclusiveness is not sufficiently addressed. According to Mr Gagliardi, fostering opportunities in the legal market for people from black communities is very intertwined with socio economic issues, like providing better quality education at the elementary level.

When the floor was opened for comments, members of the audience showed concern with the number of additional initiatives and projects that women must undertake in order to showcase their abilities, to the detriment of the quality of their billable work. The panellists shared that concern and pointed out that undertaking too many diversity initiatives can be counterproductive if they are not followed by effective results.


Conference, Day Three

12. Closing speech: ‘International arbitration’s perpetual war for survival: the battle of Latin America’

Juan Pedro Pomés
Senior Associate, Freshfields Bruckhaus Deringer, Washington DC, USA

Eduardo Silva Romero (Partner, Dechert LLP, Paris) delivered the closing remarks, addressing the following question: ‘Is international arbitration in Latin America facing a credibility crisis? Does the past predict the future?’.

Mr Silva Romero focused on the idea that we are living in a ‘performance society’ – a society that pushes individuals to ‘keep doing more’. This push to ‘do more’ inevitably results in a ‘burn out society’. In his view, international arbitration risks becoming a victim of this burn out.

He noted that some of the most powerful criticisms of international arbitration comes from within the arbitration community. In that context, the ICC, as a leading arbitral institution, is taking a lead role in addressing these issues.

He identified three main criticisms of international arbitration. The first is that international arbitration is no longer efficient. This results from inefficiency in the conduct of arbitral hearings because, for example, cross-examinations are not handled with sufficient expertise, which creates procedural problems. It also results from the ever-increasing length of arbitral awards. In that sense, he encouraged arbitrators to endeavor to reduce the length of awards.

The second criticism is that international arbitration should be more transparent. The market for arbitration lawyers in Latin America is very limited, which can give rise to conflicts of interests. For instance, lawyers will sometimes represent the State in one case and then act for a private party to sue a State-owned entity of the same State in another case. When acting as arbitrators, arbitration lawyers need to be more aware of conflicts of interest and willing to step down in the event they are conflicted. He noted that in Latin America, lawyers show some resistance to stepping down when faced with a conflict of interests.

The third criticism is that international arbitration must become more diverse. He noted that the ICC is leading the way in the efforts to ensure diversity. In the same vein, he also praised organizations like Women Way in Arbitration, ICC Young Arbitration Forum and the ICC Arbitration Academy.

In his concluding remarks, Mr Silva Romero returned to the idea of a ‘performance society’. In his view, arbitration should do more to meet the needs of its users while staying healthy and not burning out. Everyone in the arbitration community must take responsibility for this and act to address these criticisms and preserve the system of international arbitration.


1
Article 28(1) : ‘Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate’.

2
UNCITRAL Arbitration Rules 2013, Article 26(2): ‘An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute.’

3
Briana Young, Company A and Others v. Company B and Others [2018] HKCU 3575, [2018] HKCFI 2240, High Court of Hong Kong, Court of First Instance, HCCT 31/2018, 02 August 2018’, A contribution by the ITA Board of Reporters, Kluwer Law International.

4
See further, the ICC Commission Report on Emergency Arbitrator Proceedings , which includes inter alia an analysis of the first 80 ICC Emergency Arbitrator cases.

5
Live poll conducted via https://2go.iccwbo.org/icc-drs-app.

6
As Judge Posner puts it, the interim measure should be issued ‘only if the harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be an error . . . exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error’. American Hospital Supply Co. v. Hospital Products Ltd., 780 F.2d 589, 593 (7th Cir. 1986).

7
See e.g. the ICC Commission Report on Emergency Arbitrator Proceedings, (Annex I: Overview of the First 80 ICC EA Applications), p. 41: ‘The 80 Applications resulted in 69 EA Orders: 19 Orders rejected the Application for Emergency Measures in whole or in part on grounds of jurisdiction and/or admissibility. Out of the 59 Orders addressing the merits, the EA entirely rejected the requested relief in 36 cases, and partially or fully granted the requested Emergency Measures in 23 cases (the EA fully granted the requested emergency relief in only 8 of those cases).’

8
PT Perusahaan Gas Negara (Persero TBK) v. CRW Joint Operation [2015] SGCA 30.

9
‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’, available at http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2012_International_Arbitration_Survey.pdf, p. 16.

10
Methanex Corporation v. United States of America, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘amici curiae’ of 15 January 2001.

11
For more information, see https://www.arbitrajeccl.com.pe/tipo-de-consultas.

12
Wells Ultimate Service LLC v. Bariven S.A., ICC award, Hague Court of Appeal, 22 October 2019, No 200-244-714-01.

13
T. Co Metals LLC v Dempsey Pipe & Supply, Inc., U.S. Court of Appeals for the Second Circuit.