Institute Training: Data Protection and Cybersecurity in Virtual Proceedings

Cristina Martinetti
Partner, ELEXI Studio Legale, Turin; Member of the ICC Institute of World Business Law

The protection of personal data is a sensitive topic not only for digital economy giants that base their activity on the acquisition and processing of enormous amounts of data, but also for smaller entities that process moderate quantities of information. Law firms, legal practitioners, and arbitration specialists fall within this second group. The Institute training provided participants with an insight on how and when to protect data in a virtualized arbitration.

The inherent confidentiality of arbitral proceedings, and the often-high-value and sensitive issues adjudicated through arbitration, make the protection of information exchanged during these proceedings a top priority both for arbitral institutions and tribunals, and of course for the parties whose information and personal data are exchanged. The use of digital tools and platforms in arbitration had, in the past decade, already increased the risk of confidential information being stolen, corrupted or destroyed and the awareness of the legal community towards the necessity of adopting adequate measures to protect personal data and confidential information had previously been raised. The COVID-19 pandemic and the exponential increase of the use of digital means for conducting arbitral proceedings gave the final push to the adoption of technical measures and legal standards aimed at securing confidentiality and protecting data from cyber threats.

The ICC Institute Training, delivered by Paulo Brancher (Partner, Mattos Filho, Sao Paulo), Yves Derains (Founding Partner, Derains & Gharavi, Paris; Chairman, ICC Institute of World Business Law1), Javier Fernandez-Samaniego (Managing Director, Samaniego Law, Spain), Filip de Ly (Professor of law, Erasmus University Rotterdam; Member of the ICC Institute Council), Kathleen Paisley (Partner, Ambos Law, Belgium and New York/Miami, United States; Co-chair of ICCA-IBA Taskforce on Data Protection in International Arbitration; Member of the ICCA-NYC Bar-CPR Working Group on Cybersecurity in Arbitration) and Melanie Van Leeuwen (Partner, Derains & Gharavi, Paris) was precisely intended to tackle those concerns and to provide guidance to arbitration practitioners needing to use digital means in the conduct of arbitration.

The training was divided into four main sections:

  1. Introduction to data protection and cybersecurity in virtual arbitration proceedings, including an overview of the ICCA-IBA Roadmap to Data protection in International Arbitration.2
  2. Pre-arbitration aspects related to data protection.
  3. Organization of arbitration with a specific focus on the implementation of data protection measures within the usual case management tools (the terms of reference, procedural orders, etc.).
  4. Organization of virtually conducted hearings.

The speakers also made specific reference to the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic,3 which provided arbitration practitioners with a set of recommendations and best practices to reduce the impact of the COVID-19 pandemic on current and future arbitral proceedings, in the light of the general duty, set forth in Article 22(1) of the ICC Rules, ‘to conduct the arbitration in an expeditious and cost-effective manner’.

The Guidance Note incentivize arbitral tribunals and the parties to explore the full potential of digital technologies (e.g. for service of documents and notifications and for the conduct of case management conferences and hearings) in order to keep proceedings on track and to avoid unnecessary delays. At the same time, the Guidance Note (Section III(B)) highlights the importance of establishing cyber protocols with the aim of ensuring the privacy of virtual hearings and the confidentiality of information exchanged during the proceeding. Annex II of the Guidance Note is an essential tool for arbitral tribunals required to conduct virtual hearings and tackles, among others, possible issues arising out of the application of data protection rules.

The speakers then illustrated the recommendations of the ICCA-IBA Roadmap in the pre-arbitration phase, highlighting the importance for the parties and their counsel to manage data protection-related concerns from the very beginning of their exchanges leading to arbitration. The motto of the EU data protection reform, ‘privacy by design and by default’, must – in fact – be regarded as the true north while shaping a new arbitral proceeding where counsel should correctly assess the impact of data protection rules when preparing and pleading their case.

Kathleen Paisley provided guidance on cybersecurity issues and on the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration;4 arbitrators are frequently unaware of, or tend to underestimate the risks related to, cybersecurity.

In the true spirit of any ICC Institute training, a place of honour was reserved to practical exercises. A mock case study was based on a multi-jurisdictional construction dispute between parties headquartered in the USA and France, respectively (i.e. in two jurisdictions with significantly different data protection laws, which according to a recent judgment of the CJEU are not fully compatible5). The mock case raised the following questions: What data protection issues are raised in preparing your case? How could data protection impact the gathering of the evidence? What should you consider in deciding what evidence to submit in the arbitration? Should data transfer be taken into account in the selection of the arbitrator and counsel?

A second mock-case was then presented with the aim of identifying how data protection rules shall be taken into account while organizing arbitral proceedings, particularly when the parties’ counsel and the arbitral tribunal are based in multiple jurisdictions (Miami, Paris and Sao Paulo). The questions raised were: What data protection issues might be raised and by whom? What about cybersecurity and assessment of the risk of being hacked during the arbitration proceeding? How might these issues be addressed in the Terms of Reference and/or Procedural Order One? How is this impacted by data transfer issues? What strategic considerations are raised for counsel of both parties?

A third and final mock case was debated in order to identify the issues that might arise when a virtual hearing is proposed and then conducted. The arbitral tribunal first faced the opposition of one of the parties to the conduct of virtual hearings and had to then establish a protocol to ensure the privacy of such virtual hearing and confidentiality of information exchanged.

Summarizing in such few words a two-day intensive training’s material, recommendations, suggestions, and many valuable insights delivered by the speakers is impossible and somewhat presumptuous. However, there are, in my view, three takeaways that all arbitration practitioners should constantly bear in mind while approaching a new proceeding (or even in their day-by-day activity):

  1. Data protection-related matters shall not be treated as afterthoughts that become part of arbitral proceedings only at a very late stage, or as a useless nuisance that must be dealt with because the EU legislator so wishes.
  2. The ‘Privacy by design’ motto applies to arbitration as well as to other activity implying the processing of personal data, from the very first steps of the proceeding until its end and beyond.
  3. Cybersecurity is one of the key features the parties will look for when deciding to which legal practitioners and arbitral institutions they will entrust with the conduct of their arbitrations.

The ‘digital revolution’ has become an integral part of the legal profession and arbitration is no exception. The COVID-19 pandemic has shown that the use of digital tools allows for the ability to overcome distances, lockdowns, travel bans and, in essence, to keep providing high quality adjudication services even in challenging times.

E-mails, virtual data rooms, and virtual hearings are here to stay, but they raise significant concerns with regard to their confidentiality and privacy. It is for the arbitration community to correctly identify those concerns, reduce the risks associated with the use of digital means, and proactively take the necessary steps to address them.

Going back to handwritten briefs and communications sent through the postal service is no longer possible or acceptable in the best interest of the parties. We should instead embrace the new paradigm by exploiting the digital environment to its full potential.

The ICC Institute of World Business Law offers interactive trainings to provide practical guidance, share and increase knowledge among the participants. For more information on the Institute activities and on how to become a member, please visit  www.iccwbo.org/icc-institute.

YAF Session: Who wants to be an arbitrator? An interview with Yves Derains

Lucía Olavarría
Quiñones Alayza Abogados, Lima; ICC YAF Representative for Latin America

Berardino Di Vecchia Neto
Lawyer, Sao Paulo; ICC YAF Representative for Latin America

World-renowned arbitrator Yves Derains was interviewed by YAF Representatives for Latin America at the 18th ICC Miami Conference on International Arbitration. With great openness, he answered personal questions, shared his most difficult experience as an arbitrator, gave career advice and commented on the future of commercial arbitration.

The interviewers started the conversation by asking Mr. Derains to recall the ‘breakthrough’ moment in his career. Mr. Derains stated it was difficult to identify one because he started very young in the field, being just 26 years old at the time he joined ICC. At that time, ICC only administered 100 cases per year. As a result, his career developed alongside the growth of international arbitration itself. He did recall that the starting point was René David´s lectures on comparative law during his university days and that he was inspired to look for a job at ICC by Phillippe Fouchard´s thesis on international arbitration, which he read several times while finishing his military service.

When asked for advice on how to become an arbitrator and how to attract new appointments, he recommended to ‘live arbitration in action’ first. It is necessary, he said, to gain experience in arbitration, to become well known by colleagues for that work, and then, naturally, become an arbitrator. One of the best paths to do this is to join a law firm involved in international arbitration, starting as an associate and working with people with knowledge in the field. He also indicated that the majority of the appointments come from the parties and colleagues. Therefore, a very important piece of advice given by Mr. Derains for young practitioners was to never forget that lawyers from other firms – even acting as opposing counsel – may appoint you later as an arbitrator.

Mr. Derains stressed that just wishing to become an arbitrator may not be a good strategy; it is better to focus on the work, as experience plays a major role when deciding appointments and people talk about ‘performance’. Letting people know of your experience and always complying with confidentiality obligations is also advisable.

Mr. Derains acknowledged that the characteristics he believes led to his success were that he was always very calm and that he was culturally open to all legal systems. He also emphasized that, to be trusted by the parties, an arbitrator has to show an ability to decide rapidly on serious grounds and that this does not mean you have to please everybody. If you try to ‘please everybody’ in a hearing, he said, in the end you will accomplish exactly the opposite: displeasing everyone.

Mr. Derains also explained that his work as counsel had enriched his work as arbitrator and vice-versa. For Mr. Derains, the cross fertilization between work as counsel and as arbitrator is very useful in commercial arbitration as this enables, when you later sit as arbitrator, to better understand the strategies implemented by party representatives.

Mr. Derains acknowledged that he had encountered a few challenges while acting as arbitrator, and shared a few examples:

  • Dealing with a co-arbitrator (when acting as president) who did not allow the tribunal to finish the deliberations when the decisions being made by the majority became contrary to the interests of the party that appointed the co-arbitrator.
  • While working with experienced peers who previously know each other can be beneficial as this allows the tribunal to have a common approach when dealing with the issues to be decided, sometimes. arbitrators who know and trust each other tend to work less than others. This issue became obvious when acting as president he noticed that certain co-arbitrators agreed too rapidly with his proposals on procedural issues.
  • When he works with co-arbitrators he does not know, he tries to quickly determine whether his co-arbitrators are truly independent and impartial. One way of doing this is to start the discussions early with the arbitrators, especially regarding requests by the parties that are absolutely untenable and listen to their opinions on such requests.

Finally, on the subject of the future of commercial arbitration, Mr. Derains recognized that the main problem is that arbitration is both too long and too expensive. The reason for this is that over the last 20 years, a standardized arbitration procedure – a mix of civil and common law traditions – has developed. The procedure starts with initial written statements of claim and defense and filing of documents, which is typical in civil law; then there is a discovery phase, which comes from common law; then you go back to the civil law tradition with a reply and rejoinder; and finally, the long hearings with many witnesses that take place follow the common law system. In practice, what you really have, in Mr. Derains’ opinion, is the same story being told several times (first by in-counsel to the lawyers, then by the witnesses to the lawyers, then those testimonies are used in the written statements). For Mr. Derains, one solution would be for the parties and the arbitrators to focus more – at the inception of the arbitration – on determining the relevant issues that need to be solved so that the tribunal early finds out what is common ground and what is disputed. The generalization of virtual meetings where possible and cutting out unnecessary travel, will also make arbitration less expensive.

Without a doubt, this interview will inspire many young prospective arbitrators and practitioners as to ways to develop their careers and improve aspects of the arbitration system. Our sincere thanks go to Mr. Derains for collaborating with ICC YAF.

Diversity Session: How to improve diversity in extraordinary times

Verónica Sandler, Sandra González, María Inés Corrá, Jazmin Escalante
Women Way in Arbitration (WWA, LATAM)

The conversation centered on the importance of boosting gender diversity in arbitration. More specifically, it assessed the impact of the pandemic on diverse representation within tribunals, the new challenges and opportunities the pandemic brings, and, in a broader sense, the necessary measures to tackle gender diversity setbacks in arbitration.

As for the opening, Carsten Wendler (moderator) (Partner, Freshfields Bruckhaus Deringer, Germany) sought audience feedback on the following question: ‘What effect has the pandemic had on diversity in international arbitration?’ Audience response was optimistic as 71% selected the answer ‘Booster and creating opportunities’, and 29% answered ‘Setback and creating obstacles’. Throughout the session, Mr. Wendler delved into the statistics reported by different institutions. For instance, the ICCA Report of the Cross-Institutional Task Force on Gender Diversity,6 published early this year shows that, between 2015 and 2019, the number of women on arbitration tribunals grew from 10% to 21.5% as a result of successful efforts to improve gender diversity. As regards arbitrators’ institutional appointments, the rate of female appointees to Tribunals is 30%, compared to party appointments of only 13.9%. He also observed that only 20% of appointments by co-arbitrators are women, much less than the appointments made by arbitration institutions.

In a second interaction with the audience, Mr. Wendler asked, ‘Which aspect of diversity (equal opportunity) in international arbitration has mostly been affected by the pandemic?’ Answers were as follows:

  • ‘getting a job (57%),
  • ‘shining in your job’ (26%),
  • ‘getting a leadership role’ (17%).

Towards the end of the discussion, the first question was asked again, and the results were ‘Booster and creating opportunities’ (63%) and ‘Setback and creating obstacles’ (37%).

Chiann Bao (International Arbitrator, Arbitration Chambers, Hong Kong; Vice-President, ICC International Court of Arbitration) pointed out that institutions are facing a record number of cases, and arbitrators are therefore busier than ever. Nowadays, gender diversity is consciously being pursued. There is thus a recognition of the need to include women when creating arbitrator lists and a tendency by lawyers and clients to ensure that women are included. The pandemic has not reduced the number of female appointments; on the contrary it has actually increased the number. Digital platforms have made more transparent the fact that qualified female candidates are plentiful worldwide. The use of such platforms during the pandemic has had a further positive impact on female selection as participants focus more on expertise in the search for candidates and geographical limits have been rendered trivial thanks to digital platforms.

Gabriel Costa (Managing Counsel Litigation, Latin America & Caribbean, Shell Brasil Petróleo Ltda) highlighted the key role clients play in promoting diversity in arbitration and in the legal community as a whole. Even when parties get a list of arbitrator candidates with an equal number of men and women, statistics show that they still choose men more frequently; therefore, although institutions such as legal service providers may actively promote diversity, the real change will come from clients. Ultimately, clients and counsel can -and should- lead the push towards genuine diversity. This will require discussing the matter with an open mind, free of unconscious prejudice, and often going against our deepest beliefs and our resistence to change. Mr. Costa observed the need to review those beliefs, to identify the reason behind different positions, and to have a proactive role. Clients should ensure that the teams they hire follow diversity practices.

Mr. Costa also noted that the system will not be viable if we do not change our inclusion and gender diversity practices. In short order, we will see a younger generation of arbitration participants and leaders pushing us to reconsider our preconcieved ideas driven by a strong commitment to diversity. He noted further that the best way to promote women in leadership roles is to actually appoint them to those roles. Working in environments that support diversity really helps us see the benefits of such diversity, he concluded.

Soledad Díaz (Partner, Ferrere, Uruguay) stressed the specific situation of Latin America where arbitrator lists have a small number of women or show a poor variety of candidates. In order to achieve greater equality in tribunals and to give a more professional response to clients, lawyers should conduct more detailed reviews on the candidates they appoint. They should not be unduly influenced by the fact that they saw a particular arbitrator at a conference or by reading a paper the candidate wrote. Lawyers need to be able to give specific reasons and explain why they are choosing such arbitrator.

Ms. Diaz agreed that directly interviewing candidates to get a better profile could be helpful. She said that there is no lack of female talent; what we need are opportunities for candidates to prove their value and their abilities, which makes these interviews quite effective. Another helpful factor is to choose arbitrators based on their interest in promoting diversity so that this is taken into account when nominating the president of the Tribunal. A written statement could even be obtained to register the diversity commitment of the Tribunal, which could be very helpful in Latin America. As regards information and statistics concerning diversity, Latin America still lags in the transparency shown by the main arbitral institutions. Women Way in Arbitration (WWA) has recently begun to approach institutions in smaller jurisdictions, especially Chambers of Commerce, to help with statistics.

Ms. Diaz noted the importance for women arbitrators of receiving their first appointment, a very first step in a career. She noted the importance of signing up to lists to reach that first step on the ladder. Ms. Diaz finally noted that we saw many doors open in terms of visibility, even in a challenging year. Access to mentoring programs has improved, as well as the possibility to communicate all over the world with people who would have otherwise been impossible to reach. Finally, she noted that more opportunities to write and to publish have developed in the digital world.

Speaking from her experience as a lawyer and arbitrator, Ndanga Kamau (Founder, Ndanga Kamau Law, Kenya; Vice-President, ICC International Court of Arbitration) stated that it is too soon to assess the impact of the pandemic on diversity. What we do know, she says, is that the pandemic has exposed our weaknesses as a society in all aspects of life; so, it is a good time to ponder those weaknesses in matters of diversity.

Many women are rejecting opportunities because they are more likely to bear the extra responsibilities and burdens at home brought on by a pandemic. So, while we celebrate the new opportunities brought by the pandemic, we must rethink lingering questions about how best to move forward. It is also important to observe how arbitrators are shaped not only by their capabilities but also by their experience. Ms. Kamau added that we are going through difficult times for new appointments. As usual, it is easier for those who are already in this circle than for those who are not. It is especially hard for those who live in regions where international arbitration is not so common, or simply lack the necessary technology or live in peripheral areas.

On a brighter side, Ms. Kamau said that there is no doubt that diversity is a concern that knows no borders and is present in all environments. It is no longer just a moral imperative, but also a commercial one. Additionally, she observed that the best way to persuade co-arbitrators to select female chairs is to showcase their ability and benefits they bring to the system. Statistics are one way to show this. It is not possible ultimately to ‘force’ diversity or to compel female appointments; but we can and should add women to the lists of arbitrator candidates. She finally observed that the pandemic brought greater equality of opportunities to participate in webinars, competitions and other types of activities because it reduced the costs of mobility, visas, tickets, and other travel expenses. Even after a return to in-person meetings, we should encourage the development of this virtual spectrum to improve inclusion opportunities.

18th ICC Miami Conference

Grant Hanessian
Independent Arbitrator, New York; Adjunct Professor of Law, Fordham University School of Law

Ishaan Madaan
International Disputes Lawyer; Founder, Arbinsol

Following welcoming remarks by Katherine González Arrocha (Director for the Americas, Arbitration & ADR, ICC International Court of Arbitration, Panama City), the event kicked off with a session titled ‘Re-Shaping Dispute Resolution in a New Era’. Alexis Mourre (President of the ICC International Court of Arbitration) was interviewed by Alexander G. Fessas (Secretary General, ICC International Court of Arbitration) and Ana Serra e Moura (Deputy Secretary General, ICC International Court of Arbitration). In December 2020, ICC announced that in July 2021, Mr. Mourre will pass the baton of leadership to Claudia T. Salomon, the first woman ever to head the ICC Court.

Mr. Mourre spoke of his professional journey prior to and during his term at ICC, and shared highlights of ICC’s accomplishments during his tenure, emphasizing the increased growth and geographic scope of its physical presence, particularly in Latin America and Brazil, now very substantial arbitration markets. Mr. Mourre also spoke of ICC’s work to promote diversity and transparency, predicting that roughly 25% of ICC awards would be published in the near future. The ICC panel then addressed questions from the audience covering a variety of issues, including the future of investment arbitration under ICC rules.

Session 1 - Tackling 5 tricky scenarios of online arbitrations: What would you do?

The first session, moderated by Dyalá Jiménez (Founder and Arbitrator, DJ Arbitraje, Costa Rica; former Minister of Foreign Trade, Costa Rica), focused on ‘telematic’ (or ‘virtual’) arbitral proceedings, with particular emphasis on issues pertaining to examination of witnesses and panelists’ experiences with such hearings. The panel broadly discussed ‘5 tricky scenarios’ of online arbitrations:

  • Virtual witness and expert examination – when and how?
  • Due process paranoia in a virtual setting.
  • Dealing with confidentiality and security issues.
  • How to deliberate and draft awards efficiently without meeting in person?
  • How to ensure valid notifications during the arbitration proceedings?

To begin the session, the audience was polled on whether virtual hearings should proceed without the parties’ agreement in the following scenarios:

  1. In an ICC case between a distributor and its main client, the respondent opposed a virtual evidentiary hearing, alleging a possible violation of due process. The claimant accuses respondent of employing delaying tactics. You are the sole arbitrator. Should you decide to hold the hearing virtually despite the disagreement?
  2. The situation is the same as above, but the arbitration is between a public service concessionaire, and the respondent is a state entity, which opposes the virtual hearing alleging due process and public order issues due to cybersecurity sensitivities. You are the sole arbitrator. Should you decide to hold the hearing virtually despite the disagreement?

While 76% of the attendees answered the first question in the affirmative, only 56% answered affirmatively to the second question where the matter involved a state entity; 79% of attendees had the same response for both questions.

Juan Fernández-Armesto (Partner, Armesto & Asociados, Spain) discussed the polling results while referring to Articles 25 and 26 of the ICC Rules and the somewhat different meanings of these Articles in the English and Spanish versions regarding the need for party consent to virtual hearings (revisions to the ICC Rules effective 1 January 2021 resolve this issue, and clearly provide for virtual hearings). Mr. Armesto recalled discussions in previous years about the possibilities of virtual hearings, and stated his view that Zoom and other platforms work well for witness examinations. José Feris (Partner, Squire Patton Boggs, France) agreed on the value of virtual platforms, and particularly noted the added flexibility of being able to attend several hearings or conferences on the same day, but observed that the efficacy of such alternatives can only be ascertained on a case-to-case basis. Discussing his recent experiences, Mr. Feris stated that the dynamics between witness and examiner are different in a virtual setting, as some witnesses are more relaxed in the comfort of their homes and others seem to be uncomfortable speaking into a camera without others in the room. Such considerations compel counsel to approach each witness examination differently.

Maria Claudia Procopiak (International Arbitrator, Procopiak Arbitration, United Kingdom/Brazil) noted that for arbitrators, virtual hearings can lead to a greater focus on a witness’s facial expressions and reactions than may be for an in-person hearing where the arbitrators may be some distance from the witness. ‘We are not robots’, she said. Professor Fernando Cantuarias (Professor, Faculty of Law, Universidad del Pacifico, Peru) stressed that current circumstances compel the arbitral community to overcome resistance to new technologies, noting that other service industries historically have been significantly more advanced in using technology than dispute resolution counsel and arbitrators. He recognized that the transition from bricks and mortar, process servers, and arbitral practices from the 1900s to digitization of documents and virtual hearings has been quite successful in Peru.

The panelists also discussed practical considerations, including the cost-effectiveness of virtual hearings. Of course, the analysis again must be on a case-to-case basis, but virtual hearings were said to be improving the quality and reducing the quantity of oral submissions, both of which are now more concise and focused. Those who defend international arbitration against criticisms of unnecessarily long hearings, excessive costs and lack of flexibility should advocate for the use of virtual hearings after travel resumes and in-person hearings again become widely available.

The panelists generally agreed that logistical issues (attending hearings at unusual hours; devising strategies to communicate with colleagues; adapting to witness examination; unpleasant disruptions, et al) are real issues, however, virtual arbitration proceedings in many respects provide real opportunities for more efficacious dispute resolution proceedings.

Session 2 – How can dispute resolution services support business resilience: An in-house perspective

This session provided interesting and diverse views on the effects of the pandemic from senior in-house counsel engaged in business dispute resolution. Karl Hennessee (Senior Vice-President, Head of Litigation, Investigations & Regulatory Affairs, Airbus Legal & Compliance, Airbus, France) moderated this session, which discussed arbitration and other ADR solutions to issues such as disruption of supply chains and other liability implications arising out of Covid-19, force majeure and liquidity problems. ‘It is sometimes when the worst situations occur that unlikely heroes emerge’, said Ana Luisa Rovai Hieaux (General Counsel, Carrefour, Brazil), emphasizing the key role played by in-house legal departments in crisis management. Echoing Ms. Hieaux, Suzana Blades (Associate General Counsel, Litigation and Arbitration, ConocoPhilips, USA) spoke of the impetus that the pandemic has given multinational businesses to integrate legal departments across offices to address common legal challenges in many jurisdictions.

Force majeure, a topic much on the minds of all in-house counsel, was discussed from a comparative perspective. Cindy Randall (Associate General Counsel, Litigation, Microsoft, USA) distinguished the various kinds of force majeure clauses, and how interpretation of such clauses may vary depending on the applicable national law. The panelists agreed that pragmatic solutions were often more important than determining legal obligations in trying to resolve disputes, and that mediation often could be helpful in identifying such solutions. Alma Gómez Valdés (Deputy Director, Legal Department, Técnicas Reunidas, Spain) particularly noted the benefits of mediation on virtual platforms. The panelists agreed that mediation offered an excellent opportunity to evaluate the strengths and weaknesses of a case and to resolve disputes in such a manner as to permit the continuation of commercial relationships, although it was noted that mediation with states and state entities can present particular challenges.

Ms. Blades emphasized that while outside counsel focus on the merits of a case, in-house counsel focus on choosing the right cases to litigate. Particularly in current times of tight in-house legal budgets, the best commercial solution is often to settle a dispute rather than engage in hearings, enforcement and associated delay and costs. A desire to maintain business continuity may require assisting business partners with their liquidity, notwithstanding a pending dispute. As Mr. Hennessee said, ‘If you owe your banker $1,000 then you have a problem. If you owe your banker $1,000,000 then your banker has a problem.’

The panelists also discussed the risks and benefits of third-party funding in the current environment. Although concerns were expressed about clients losing control over the dispute, the panelists agreed that given the increase in funders and law firm portfolio management, businesses should be prepared to face more claims. The session culminated with a brief discussion on the importance of business resilience notwithstanding force majeure circumstances, with panelists affirming their advice to their in-house colleagues to mitigate damages and remain flexible.

Closing remarks

Roberto Azevêdo (Executive Vice President and Director, Corporate Affairs, PepsiCo; former Director-General, World Trade Organization) brought the event to a close with a crisp overview of the effect on international business of the current financial crises aggravated by the pandemic. Mr. Azevêdo stated that the emergence of advanced economies in China, India and Brazil in recent years has resulted in a major shift in the ‘global geopolitical axis’. In an increasingly distressed environment for some businesses, international commercial disputes will be in abundance, and arbitration will be preferred over national courts.


1
Eduardo Silva Romero has been appointed to succeed to Yves Derains as Chairman of the ICC Institute of World Business Law as of 1 January 2021 (https://iccwbo.org/media-wall/news-speeches/icc-institute-elects-fourth-chair-in-40-year-history/).

2
‘The ICCA Reports No. 7: The ICCA-IBA Roadmap to Data Protection in International Arbitration’, available at https://www.arbitration-icca.org/icca-reports-no-7-icca-iba-roadmap-data-protection-international-arbitration.

3
Available at https://iccwbo.org/dispute-resolution-services/arbitration/practice-notes-forms-checklists/.

4
‘The ICCA Reports No. 6 - ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration’, available at https://www.arbitration-icca.org/icca-reports-no-6-icca-nyc-bar-cpr-protocol-cybersecurity-international-arbitration.

5
Judgment of the CJEU, 16 July 2020, Case C-311/18, ECLI:EU:C:2020:559.

6
20bestReport of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (ICCA, July 2020).